Tag Archives: Clarence Thomas

Forget Clarence Thomas: In Louisiana, You Can Be Guilty Before Proven Guilty

Law, , , , , , , , ,
Why you should care about Boyer v. Louisiana: Criminal defendants without the money to pay for their defense are being imprisoned for years without trial, subverting the basic tenet of “Innocent Before Proven Guilty.” (Picture via: http://www.britannica.com/blogs/wp-content/uploads/2010/06/supreme-court.jpg.)
Why you should care about Boyer v. Louisiana: Criminal defendants without the money to pay for their defense are being imprisoned for years without trial, subverting the basic tenet of “Innocent Before Proven Guilty.” (Picture via: http://www.britannica.com/blogs/wp-content/uploads/2010/06/supreme-court.jpg.)

As the dust settles from Monday’s Boyer v. Louisiana oral argument before the Supreme Court, the major news takeaway is undoubtedly Justice Clarence Thomas’ breaking of a nearly seven-year silence from the bench to crack what may or may not have been a joke about the competence of either Harvard or Yale-trained lawyers (the full transcript of the argument is here).  Much hay has been made in the press over what Thomas’ joke could have meant–see the near-breathless coverage analyzing the Justice’s mindset here, here and here–but the actual arguments behind Boyer, which explores the limits of the state’s obligation to provide a speedy trial for an indigent death penalty defendant, are interesting enough to merit a second glance as well.

Jonathan Boyer and the state of Louisiana disagree over almost every aspect of what happened on the night of February 3, 2002, when Bradlee Marsh was shot three times and killed as he sat in his pickup truck. While Louisiana maintains that Boyer was responsible–a conclusion bolstered by Boyer’s subsequent confession and the testimony of Boyer’s brother–Boyer claims that his “confession” was fake and that someone else was behind the killing. Regardless of the perpetrator’s identity, all sides agree that after his arrest and indictment for first-degree murder, Jonathan Boyer waited over five years in prison for his trial to begin after Louisiana appointed but did not have the money to fund the two requisite attorneys assigned to defend his death penalty case. (The federal Constitution does not mandate two defense lawyers in capital cases, but Louisiana state court rules do.)  It was only after the state decided to drop the first-degree murder charge–a move which took the death penalty off the table and made his case less expensive to defend–in favor of lesser charges that adequate funds were freed up and trial began. By this time, several witnesses had died or otherwise become unavailable. Boyer was convicted of second degree murder and armed robbery and sentenced to life imprisonment without parole. He now argues that Louisiana’s failure to fund his lawyers in the years it spent pursuing the death penalty led to a violation of his Sixth Amendment right to a speedy trial–the remedy for which requires a reversal of his murder conviction.

The Supreme Court outlined in 1972’s Barker v. Wingo a four-factor balancing test for determining whether a Sixth Amendment infringement has taken place: (1) the length of delay, (2) the reason for the delay, (3) whether and how the defendant asserted his right to a speedy trial, and (4) the prejudice that the defendant suffered due to the delay. Depending on the facts of the case, each factor is weighed against either the defendant or the state. In 2009’s Vermont v. Brillon, the Court found that a “systemic breakdown” in the public defender system leading to a delay of trial could be counted against the state. The main question in Boyer is whether a five-year failure to provide funding for the indigent’s appointed defense should similarly be held against the state. A “Yes” to that question doesn’t automatically mean that Boyer’s speedy trial rights were violated, but it does help his case in the Barker balancing.

Unsurprisingly, Louisiana argues that the delay in funding should not be held against the state so long as the state did not purposely withhold the money to avoid trial. Though Louisiana’s prosecutorial offices routinely received surpluses (of hundreds of thousands of dollars) to try cases in the same period of time that Boyer awaited trial from prison, the state maintains that the lack of funds for his defense resulted from other factors beyond its control, like Hurricane Katrina cleanup and the available monies being used up in other capital cases. Louisiana insists that it already dealt Boyer a more-than-fair hand by even bothering to appoint two counsel for him, which was enough to safeguard Boyer’s Constitutional rights.

At Monday’s lively oral argument, the Justices split over whether the delay was actually attributable to Boyer or to the state. Justice Scalia agreed with Louisiana that the state had already been very “generous” in naming multiple Ivy League-educated attorneys for Boyer (which is where Justice Thomas stepped in with his now-infamous four-word joke concerning their competence). Rather than putting the onus on Louisiana to fund the two lawyers required under its own state procedure, Scalia postulated that had Boyer truly cared about getting a speedy trial, he would have waived his state right to two attorneys and proceeded with just the one lawyer required by the federal Sixth Amendment. Justice Ginsburg questioned whether Boyer, a man with an eighth-grade education, knew that this option was available to him. Justice Kagan pointed out that even Louisiana seemed unaware that Boyer could move forward with only one attorney, since it had previously explained the delay by saying it could not “ethically or legally bring [Boyer] to trial” because he had been “without properly funded counsel for so long.” Meanwhile, Justice Sotomayor, who has worked as a prosecutor in New York, repeatedly pressed Louisiana to explain how a state’s choice to fund prosecutors’ investigations (or anything else) over capital defendants’ lawyers could not be attributed to the state.

The Justices also sparred over the scope of the question to be decided. In addition to laying out the four-factor balancing test, Barker v. Wingo holds that speedy trial challenges must be considered on a case-by-case basis, which allows for a far more fact-intensive inquiry than the Supreme Court is used to handling. Several members of the Court, led by Justice Breyer, mentioned repeatedly that the Court’s only job is to consider the general question of whether the failure to fund counsel should weigh against the state in a speedy trial challenge. (If so, they are content to send the case back down to the Louisiana courts for the case-specific reconsideration of whether such a violation occurred.)  Justice Scalia, however, believes the Supreme Court should both answer the general question AND perform the case-specific four-factor reanalysis for Boyer. To that end, Scalia spent a significant part of the oral argument focusing not only on the reason for the delay but on whether Boyer and his legal team properly brought up the speedy trial issue in the lower courts, whether he actually suffered prejudice due to the delay, and whether a reversal of his murder conviction would still leave him with a 99-year concurrent sentence for his armed robbery conviction.

If the oral argument is any indication, Justices Alito, Ginsburg, Sotomayor and Kagan agree with Breyer’s general reading of the question presented. These Justices also seem receptive to the idea that the lack of indigent defense funding is attributable to the state. This would constitute the five-Justice majority needed to remand the case to the state court for re-analysis.  It’s possible that Boyer could still lose his battle there–notwithstanding a SCOTUS ruling that the failure to fund should be weighed against Louisiana, Louisiana could still win the overall Barker balancing back in the lower court. But even if this happens, the Supreme Court will have (at the very least) sent a clear message to the states that if they keep shunting indigent defendants to the back of the line, they will be held responsible for such decisions.

The jovial man. (Picture via: http://www.article-3.com/wp-content/uploads/2013/01/Justice-Thomas.jpg.)
The jovial man. (Picture via: http://www.article-3.com/wp-content/uploads/2013/01/Justice-Thomas.jpg.)

As for Clarence Thomas’ thoughts on the fundamental questions of the case: who really knows? He hasn’t asked a substantive question at oral argument since 2006, and he certainly didn’t start on Monday. (I’m inclined to agree with Tom Goldstein of SCOTUSblog and Andrew Cohen of The Atlantic when they say the hoopla over the joke was a case of much ado about nothing.) Given the issues at stake, it’s too bad that Justice Thomas’ offhand remark ended up overshadowing the interesting points coming from both sides.*  The depressing truth about death penalty cases is that they take an extraordinary amount of effort and resources to defend–money and time must be spent for thorough investigation and expert witnesses, for both the trial and the sentencing phases–and as Justice Sotomayor pointed out, only a very small group of lawyers in this country are even qualified to argue death penalty cases. A defendant with money may be able to hire such a lawyer and pay for the investigation, but the indigent’s court-appointed counsel cannot be expected to pay such expenses out of pocket. And while it’s not unforeseeable that very cash-strapped states acting in good faith may simply not have enough money some years to try or defend all their capital cases, it is brutally unfair to make the indigent defendant bear the brunt of those funding decisions by waiting out that time in prison.

In other words, Louisiana for over five long years subjected an untried Jonathan Boyer to a philosophy of “guilty before proven guilty,” a situation he was powerless to avoid because he had no means of his own to mount a defense and no authority to change the state’s funding decisions. Regardless of Boyer’s culpability for the murder of Bradlee Marsh, the Supreme Court needs to remember that the Constitution guarantees a speedy trial for those found innocent and those ultimately found guilty, for those who can afford to defend themselves and those who cannot. Louisiana needs to be held accountable for its choice.

—

*I do wonder what Justice Thomas himself thinks of all the media attention surrounding his comment, particularly when he opined publicly in April 2012 that his fellow Justices should listen more and refrain from interrupting lawyers so frequently during oral argument.

Turncoats, man your stations

Miscellaneous, , , , , ,

Harvard Law professor Cass Sunstein makes the point that, to convince ideologically rigid audiences of a fact, it is less important how persuasive the argument is and more important who is the one making it:

People tend to dismiss information that would falsify their convictions. But they may reconsider if the information comes from a source they cannot dismiss. People are most likely to find a source credible if they closely identify with it or begin in essential agreement with it. In such cases, their reaction is not, “how predictable and uninformative that someone like that would think something so evil and foolish,” but instead, “if someone like that disagrees with me, maybe I had better rethink.”

Our initial convictions are more apt to be shaken if it’s not easy to dismiss the source as biased, confused, self-interested or simply mistaken. This is one reason that seemingly irrelevant characteristics, like appearance, or taste in food and drink, can have a big impact on credibility. Such characteristics can suggest that the validators are in fact surprising — that they are “like” the people to whom they are speaking.

It follows that turncoats, real or apparent, can be immensely persuasive. If civil rights leaders oppose affirmative action, or if well-known climate change skeptics say that they were wrong, people are more likely to change their views.

I’m skeptical as to what extent this theory applies to ethnic, racial, and sexual minorities who have conservative or otherwise unorthodox ideologies for their groups, however. It seems the term “self-hating [insert minority group here: Jew, black, gay, etc.]” is very quickly applied to various targets by many critics in order to diminish the inevitable megaphone effect of the anomalous spokesman or spokeswoman. Supreme Court Justice Clarence Thomas comes immediately to mind, but countless other examples exist as well: Norman Finkelstein, Noam Chomsky, members of GOProud, and even Barack Obama, to name a few.

Perhaps we’ve crossed some invisible line as a nation, and even these helpful “turncoats” can no longer inspire our trust. They certainly don’t persuade me much. I’m a little unclear as to whether this says more about me, or more about the turncoats.

#23: The Living Constitution

50 Books for 2010, , , , , , , , , , , ,

I was first made aware of David A. Strauss’ The Living Constitution via a Stanley Fish column on the New York Times web site. Titled “Why Bother With the Constitution?,” Fish’s blog post for May 10 dovetailed Supreme Court nominee Elena Kagan’s impending confirmation process with the fundamental constitutional questions raised by Strauss in his 139-page book.

Professor Fish’s reaction to The Living Constitution is best described as righteous indignation. To some of Strauss’ statements he retorts, “This is simply wrong.” To others, with considerable consternation, “This is an amazing statement.” Towards the end he proclaims that “the incoherence of what Strauss is urging is spectacularly displayed in a single sentence. Given the importance of common ground, ‘it makes sense,’ he says, ‘to adhere to the text even while disregarding the framers’ intentions.'”

So what exactly is going on here? Clearly something that Strauss is advocating, or even simply implying, is rather disagreeable to Mr. Fish. The former’s thesis is described (on the book’s front flap) as a defense of “the living Constitution…a common law approach to the Constitution, rooted in the written document but also based on precedent. Each generation has contributed precedents that guide and confine judicial rulings, yet allow us to meet the demands of today, not force us to follow the commands of the long-dead Founders.” Or, as Stanley Fish would have it, “Why is Strauss trying to take the Constitution out of the constitutional interpretation loop? Because he wants to liberate us from it as a constraint.”

Not exactly. I don’t get the impression Strauss intended to relegate the written Constitution to window dressing. Nevertheless, Fish is correct in noting that the The Living Constitution makes some bold claims as to the document’s role in contemporary jurisprudence. In large part, the book is a crusade against “originalism,” the judicial philosophy espoused most visibly by Supreme Court justices Antonin Scalia and Clarence Thomas. According to the originalist line of thinking as delineated by Strauss, “when we give meanings to the words of the Constitution, we should use the meanings that the people who adopted those constitutional provisions would have assigned…It is impermissible — it’s a kind of cheating, really — to take the words of the Constitution and give those words a meaning that differs from the understandings of the people who were responsible for including those words in the Constitution in the first place.”

The obvious counterpoint is, of course, the question of what to do in the majority of scenarios in which the Founding Fathers set forth no explicit guidelines (what exactly constitutes “cruel and unusual punishment?”), could not possibly have foreseen the issues (privacy on the Internet), or espoused views that are no longer acceptable in modern society (slavery). Acknowledging these obstacles, Strauss contends that they render originalism useless as a judicial philosophy. (In a section he headlined “The Originalists’ America,” Strauss remarks that “racial segregation of public schools would be constitutional,” “the government would be free to discriminate against women,” “the Bill of Rights would not apply to the states,” and so on.)

In titling his book The Living Constitution, he follows a long (albeit controversial, like nearly everything else related to jurisprudence) tradition of adhering to a more flexible view of the Constitution. But then he takes matters a step further. “It is the unusual case,” Strauss notes, “in which the original understandings get much attention.” In Strauss’ estimation, not only is the Constitution necessarily mutable to fit the needs of a dynamic society, in a way it is actually irrelevant to modern “constitutional” law itself. This is because of what he terms the “common law” approach: historically, “the law was a particular set of customs, and it emerged in the way that customs often emerge in a society…It can develop over time, not at a single moment; it can be the evolutionary product of many people, in many generations.”

In contemporary American law, this series of ever-shifting customs takes the form of precedent. Past judges’ rulings are considered the foundation upon which future verdicts are rendered; thus, Strauss claims, this methodology avoids both the impracticalities of originalism and the dangers of judicial overreach inherent to the dominant view of “living Constitutionalism,” in which activist judges are free to bend the law to their liking at will.

In reality, however, what the author deems an alternative approach to mainstream modes of thought is not entirely groundbreaking. At its simplest, Strauss’ thesis is simply a reassurance that living Constitutionalism works, that it does restrain judges from arbitrary decision-making. Where it differs, however, is in his attitude toward the actual text of the Constitution. To Strauss, the lip service that justices pay to the sacred text in their judicial opinions is just that: lip service. In actuality, he argues, current legal interpretation has so completely evolved and transformed over the years that the written Constitution itself has lost its germaneness to today’s legal wrangling. Quoting Thomas Jefferson, who wrote that “the earth belongs…to the living,” Strauss maintains that the Constitution, restrained as it is by the chains of centuries-old thinking, is an insufficient substitute for judicial precedent. And yet by forcing judges to formulate constitutional justifications for their every ruling — however tenuous the connection may be — living Constitutionalism, in most cases, prevents the worst variants of judicial activism. (Of course, depending on one’s particular ideological affiliations and the results of any given trial, this may or may not always be readily apparent.)

Stanley Fish, meanwhile, is having none of this. “You don’t interpret a text by looking for meanings people would find agreeable,” he writes. “You interpret a text by determining, or at least trying to determine, what meanings the creator(s) had in mind; and the possibility that the meanings you settle on are not ones most people would want to hear is beside the interpretive point.” He then angrily concludes: “If this is what the ‘living Constitution’ is — a Constitution produced and reproduced by serial acts of infidelity — I hereby cast a vote for the real one.” That Fish and Strauss cannot even agree on what the “real” Constitution is provides a worthy bellwether of the political whirlwind that is sure to accompany Elena Kagan into her much-anticipated confirmation hearings.