April 11, 2009

In Defense of Freedom, Part VII

The Sixth Amendment preserves the rights of an accused to a speedy and public trial, by an impartial jury of the area wherein the crime is alleged to have been committed; to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him and to have compulsory process for bringing his witnesses to court, and to have the assistance of counsel for his defense.

The history of each of these points is rooted in some previous tyranny and soaked in the blood of history. An early step toward despotism has historically been the establishment of rigged courts and stacked juries, doing what is “patriotic” at the time. The 6th amendment protects the accused from well meaning but misguided authority, as well as protecting society from despotism.

The landmark 6A case is Miranda v. Arizona. Ernesto Miranda was a Mexican immigrant living in Phoenix, Arizona, in 1963. He was arrested after a crime victim identified him in a police lineup, charged with rape and kidnapping, then interrogated for two hours while in police custody. The interrogators did not inform him of his 5th amendment right against self-incrimination, or of his 6th amendment right to the assistance of an attorney. He confessed in writing, including a statement acknowledging that he was aware of his right against self-incrimination. This confession was used in court and Miranda was convicted of all charges and sentenced to 20 to 30 years in prison on each count.

The defense appealed to the state Supreme Court, arguing that Miranda’s confession should have been excluded because he had been denied an attorney during the interrogation and had not been informed of his rights. The police officers involved admitted that they had not given Miranda any explanation of his rights, but argued that because Miranda had been tried and convicted of a past crime, he therefore must have been aware of his rights. The Arizona Supreme Court denied his appeal and upheld his conviction.

The 5th states that no person "shall be compelled in any criminal case to be a witness against himself..." The 6th states that, "In all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defense." The Miranda case opened a central question: What is the role of the police in protecting the rights of the accused, as guaranteed by the 5th and 6th amendments? In 1964, SCOTUS ruled that when an accused person is denied the right to consult with an attorney, his or her 6A right to counsel is violated. In the similar but less important Escobedo v. Illinois (1964), the court ruled that because Escobedo's request to consult with his attorney had been denied and because he had not been warned of his constitutional right to remain silent, his confession was inadmissible.

SCOTUS had previously dealt with these questions in Brown v. Mississippi (1936), which saw the development of the “test of voluntariness”, ruling that a coerced confession could not be used in a court of law. In Gideon v. Wainwright (1963), the court ruled that persons accused of felonies have a fundamental right to an attorney, even if they cannot afford one, thus establishing the obligation of the state to provide court appointed counsel.

[A sidebar on Gideon: This is one of the rare cases in which SCOTUS was undivided. The ruling was unanimous.]

Parallel to Miranda the court heard three similar cases; Vignera v. New York, Westover v. U.S., and California v. Stewart. The court combined the four cases, and since Miranda was listed first among the four, the decision came to be known by that name. Thus we see the Miranda warning being administered on all the cop shows.

The next year, in Duncan v. Louisiana (1968), the court ruled that the state of Louisiana denied Duncan his 6A right to trial by jury, which the court maintained “constitutes a fundamental component of the country's justice system”. Duncan represents a turning point in SCOTUS opinion, marking the first effort to fully apply 14A argument to the original 10 amendments.

Representing a huge test of the 1st, 4th, 5th and 6th amendments, the 2001 USA PATRIOT Act gave the Attorney General power to hold a non-citizens in detention indefinitely if government attorneys have “reasonable grounds to believe that the alien” is engaged in any “activity that endangers the national security of the United States” without any criminal conviction. Since SCOTUS had previously held that the 6A safeguards applied to non-citizens, the Patriot Act is in direct conflict with the Constitution, and the challenges have been manifold.

In the ongoing Rothgery v. Gillespie County (Texas) (2008), the court is considering at what point the state becomes obligated to provide counsel for the accused. Walter Rothgery maintains that his 6A rights were violated when he was arrested and then released on bail, then re-arrested and held for three weeks without benefit of counsel. Rothgery claims he would have been released if counsel had been promptly provided to him. Gillespie County argued that suspects could be denied counsel until a prosecutor becomes directly involved in the case. Based upon previous court rulings, Rothgery should prevail.

As Sonny & Cher might say, The Beat Goes On, and the testing of our Constitution is never-ending. Red light and speeding cameras offer a new test, as one must ask just who is the witness, and how may the accused compel the witness to court? Since municipalities are claiming these citations to be administrative and not criminal, they are holding the actions to be outside of the scope of the 6th, but cases are slowly being brought before the courts. Time will tell.