Friday, July 17, 2015

Musings on the Sixth Amendment

This is the sixth in a series of pieces with off-the-cuff reactions to the reading of the Bill of Rights, and on the responsibilities of, liabilities to, and and uncharted waters regarding, each of them in a free society. It has been a real eye-opener for me to look at them with a curiosity as to what the thought processes were in their creation, contrasted with their implementation today.

Here is the Sixth Amendment, in the event that you, like I, forgot the precise text:

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his [defense]."

There's lots to absorb here, because although all of this deals with individuals and organizations (companies are people, too, so the Court has advised us) who are defendants in criminal proceedings, there are several distinct guarantees here, in fact:
- The right to a speedy trial
- The right to a public trial
- The right to a jury of impartial people located where the crime occurred
- The right to question where the alleged offense occurred
- The right to be told why you are arrested
- The right to "confront" opposing witnesses
- The right to compel testimony
- The right to a lawyer.

Strangely, my first reaction on reading all this was to ask why it took almost 200 years for there to be a court case solidifying the right to an attorney.  Yes, I know that the real decision in Miranda v. State of Arizona was about the  obligation of the government to remind the accused of their right to counsel, but you get the idea.

The next element that I thought striking was the right to a "speedy [sic]" and public trial for the accused.  First, it didn't specify that this right, or actually any of the others in the Sixth Amendment, devolved only to citizens.  That illegal who murdered an innocent woman on the pier in San Francisco gets that right as well, at least by virtue of his having selected a country with an embracing Constitution in which to commit his murder -- and his seven other felonies.

What is "speedy"?  That actually seems like a fairly colloquial word to have been put in a document of such import -- perhaps they could have written "prompt" or some other synonym.  Do we not read that sentence and think quickly about someone like Amanda Knox who, guilty or innocent, rotted in an Italian jail for months and months while their inane and pompous judicial system eventually got around to handling her case, and then took forever to try it, another forever to get a verdict and ended up with a decision that got overturned on appeal?

That was a real embarrassment to an entire country.  If I were ever to contemplate going back to Europe, I can assure you that Italy would not be on my list of places to visit.  I certainly have no intention of committing any crimes while here, there or anywhere else, but if a person accused of something can just hang in jail for months waiting, as if Italy were more like Iran, well, I can spend my tourist dollars elsewhere.  I have to think a lot of Americans have thought twice about visiting Italy after all that.

Aside -- were you aware that there was a time after Charles Manson was arrested for the Tate and LaBianca murders in 1969, when he could have whipped out the Sixth Amendment and maybe gotten off?  At one point after the arrest but before trial, the prosecution was a bit light on evidence and afraid that if Manson pressed for a speedy trial under the Sixth Amendment, they would not have been able to mount a case against him.  The prosecutor, Vincent Bugliosi, wrote later in his book on the case that he bluffed the Manson team by pushing for a fast trial date himself, forcing the defense to back off their desired date.

Did the Framers intend for the meaning of "speedy" to be relative, with a sort of "reasonable-man" test that would apply to each case differently based on its complexity?  We just saw a settlement in the BP oil spill case that resolved a dispute from an action in 2010 -- five years ago.  Sorry, but that's horrendous.  Was that "speedy" relative to the complex issues of liability, or did the defense lawyers allow it to drag on, effectively yielding their Sixth Amendment rights, hoping for a better settlement (or higher fees for them)?  Or was that a civil and not a criminal case?

I notice that the only constitutional note as to the construct of the jury is that they be "impartial" (and "of the state and district" where the crime was committed).  A jury "of one's peers"?  Nope, that phrase is not in the Constitution.  You are not entitled to have people "like you are", same gender, race, religion -- nothing like that.  Just "impartial."

And how do we determine impartiality?  Well, as traditional and lawyers dictate, we line up a bunch of people (veniremen) and the defense and the prosecutor ask them questions to determine if they've heard of the case, prejudged guilt or innocence, etc.  They then of course, refer to their textbooks on the art of picking people for a jury (a staple of law offices) to decide if that person would help or hurt the case of their client, whether the defendant or the People.

I suppose if there were a better way to empanel a jury we'd have done it already.  But it does take the burden of determining impartiality away from the Court and place it on the agreement of the parties.  If we wish the Constitutional reliance on impartiality to be determined that way, fine.  The one attribute of that process I love is that when the trial is over, the loser can't complain about jury selection, because the Court didn't pick the jury, counsel and prosecution did!  

Finally, how "impartial" does a jury have to be?  I served on a jury for a murder trial once, which I mentioned in an earlier piece.  It was interesting in that it was in a small town in a sparsely populated county I lived in at the time, thirty years ago.  Given where it was, we had jury candidates who knew the murderer, knew the victim, and pretty much everyone had heard of the case.  Of course, I had not, since there was only one newspaper for the county and I didn't read it all that much.  It had happened near the county seat, too, and we lived out a ways.

I didn't know until our deliberations how much my fellow jury members knew of the case.  I'm sure many of them even knew the lawyer and the prosecutor -- I knew both.  How "impartial" could we possibly be?  How did the lawyer and the prosecutor even decide on the twelve of us who did end up trying the case, given that they knew who we were?

The answer, I expect, is that we as citizen jurors are a whole lot better people when we serve on a jury than we are at other times.  Judging by the debate on the case we did, once the case was turned over to us, left alone to our devices, we went right to the evidence and the testimony and rendered our verdict in a reasonable time, with quiet, calm deliberation.

As it turned out, we got the "guilty" part right, but convicted the murderer on second-degree when it should have been first-degree (the prosecutor could never find the motive to give us, though the defense attorney knew what it was*).  We did what we could.  And we were acutely sensitive to our roles relevant to the Sixth Amendment rights of the defendant.  I think I can feel pretty good about how surprisingly easy it is to "be" impartial, and therefore to find people who are.

I've "tried" your eyeballs long enough.  Now try not to need the protection of the 6th.

Copyright 2015 by Robert Sutton
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*  I'm sure that I can't leave without explaining the trial.  A fellow had killed his young rival in a love triangle by firing shots at the guy's car, parked next to the building he lived in, and then shooting him when he came out to see what was going on.  The woman involved lived in an apartment next to the victim -- and ironically was married, to a different guy.  We on the jury knew none of that part, just that the defendant had fired shots at the car and plugged the rival when he came down.  The forensics were great, but we never got a motive.  I went to see the defense attorney weeks later and he very openly explained what we -- and the prosecutor -- didn't know about the motive.  Now that was a fair trial :)

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