Via Turley, an effort by John P. Roache, a private attorney representing the City of Boston, to have United States District Judge Nancy Gertner disqualified from sitting on a case involving the Boston Police Department is rebuffed by the 1st Circuit.

The United States Court of Appeals for the First Circuit has refused to disqualify US District Judge Nancy Gertner from a lawsuit against the Boston Police Department for a wrongful conviction in three rapes. Counsel for the department charged with her showing “deep-seated favoritism and antagonism” in comments made in court.

What did Judge Gertner do that was so awful?  According to Boston.com,

At an Oct. 8 hearing in her Boston courtroom, Gertner questioned whether plans to deport the plaintiff, Ulysses Rodriguez Charles, to his native Trinidad soon were “somehow related” to his lawsuit. His suit is scheduled to go to trial in April, and Gertner urged federal authorities to delay deporting him until May.

Imagine.  A Judge doing her job.  That’s outrageous.  It outraged Roache sufficiently to submit a 21 page memorandum seeking to remove herself from the case, alleging that she

disparaged his client recently by voicing “wholly unfounded suspicions” that federal immigration authorities might have colluded with the city to try to deport Ulysses Rodriguez Charles before his suit goes to trial in April.

Now here’s the real story.  The problem with Judge Gertner isn’t that she is biased, but that she’s not.  She doesn’t default to the “cops are always right” position.  She doesn’t assume that cops can’t be wrong.  She actually, really, honest-to-Godly, considers the possibility that the defendant might be telling the truth or, oh no!, innocent.  It’s an outrage.

The system has relied upon judges, by default, siding with the government.  When a judge doesn’t play that game, the government doesn’t see the judge as fair and neutral.  The government doesn’t want a judge who’s fair and neutral.  The government expects to waltz into court with a leg or two up on its adversary, and a judge who knows that it wins every close call every time. 

When a judge comes along who is disinclined to cut the government a break as needed, she becomes the enemy of the government and is therefore, in the government’s eyes, biased against it.  If you’re not for them, you’re against them.  Since Nancy Gertner isn’t for them, she must be biased.  At least as far as the government is concerned.

Via @joelrosenberg (that’s his twitter name, in case you didn’t know), though around here he’s generally known as J-dog, comes this horrific story from the St. Petersburg Times.

For two days, a Hillsborough judge watched a young lawyer struggle through a murder defense and lose.

Then, as a deadline loomed, Circuit Judge William Fuente waited for customary defense motions to overturn the Dec. 4 conviction or request a new trial.

No motions came.

Finally on Monday, Fuente took the rare step of initiating his own order of a new trial for defendant David Rolon, saying defense attorney Byron T. Christopher “did not render effective assistance” and didn’t adequately prepare for trial.

“The defendant, through no fault of his own, did not receive a fair and impartial trial,” Fuente wrote in a four-page order.

It isn’t supposed to happen this way.  Defenders of the faith swear that lawyers, duly admitted to practice, cannot be incompetent.  Yet they sometimes are.  Thankfully, and I mean that in an extreme sense, Judge Fuente did his job and protected the defendant from his own lawyer’s incompetence.  Other judges might have decided that the defendant made his bed, so screw him.

So who is this lawyer, defending a man accused of murder?

Christopher, 30, privately retained as Rolon’s attorney, didn’t return calls for comments. Numerous other attempts by the Times to reach him Tuesday were unsuccessful.

The Florida Bar Association lists Christopher as a member of its Young Lawyer’s Division. Public records show he began work as an assistant Hillsborough state attorney in April 2005, the same month he was admitted to the Florida Bar. Five months later, Christopher no longer worked for the Hillsborough State Attorney’s Office. It was unclear Tuesday why he left.

Privately retained.  Former state attorney.  Member of the FBA, Young Lawyer’s Division.  I wonder what his marketing blawg would look like?

A while back, there was a heated debate here about whether it was demeaning to the bar to state that there are lawyers out there who are not competent to serve the purpose for which they were retained.  The sad fact is that the defendant in this murder case no doubt believed that he had retained competent counsel to represent him at trial.  He was wrong.  He was disastrously wrong.  But for the Judge’s willingness to step into the middle and protect this defendant’s 6th Amendment right to effective assistance of counsel, sua sponte, he might well have the rest of his life in prison to ponder just how wrong he was.

Some cases, it gets this bad.  And some trials, there won’t be a Judge Fuentes to make sure that the defendant is not convicted in the absence of effective assistance of counsel. 

Update:  Florida attorney Byron T. Christopher will not be publicly humiliated without fighting back.  Oh no.  From the Other Times :

“I feel like he wanted to embarrass me,” Christopher, 30, said of an order filed Monday by Circuit Judge William Fuente, calling for a new trial because Christopher hadn’t rendered effective assistance to his client.

Christopher said Rolon found him through word of mouth, which is how he says he gets 98 percent of his clients. 

“I’m an excellent attorney,” he said. “But when you can’t put on a defense, what can you do?”

He said Circuit Judge Ronald Ficcarotta denied a request to withdraw from the case after Christopher complained Rolon paid only 25 percent of what he owed.

Christopher said he spent 40 hours preparing a defense for Rolon that Fuente ruled inadmissible just before the Dec. 3 trial began. Despite the setback, Christopher said he “gave 110 percent” to Rolon’s case.

Oh, this smells like it requires another post on the subject of getting paid versus doing your job.  But there is one additional aspect that shouldn’t go unnotice:

Fuente noted in his order that Christopher told jurors he had spent less than five minutes reviewing Rolon’s testimony before putting him on the witness stand. Christopher said he did so to show jurors that Rolon hadn’t been coached into what to say.

Alternate juror Delores S. McCain told the Times that it appeared Rolon had poor legal representation. She said Christopher fumbled with his note pad and his questions seemed to confuse the defendant.

“I think the jury’s perception of me was based on the way the judge was treating me,” Christopher said.

Somehow, I think that Chistopher may be wrong about this. 

Houston criminal defense lawyer Mark Bennett has opened the debate on safety versus freedom at the best crime blawg in the world, Defending People. (Vote for it here for the ABA 100).  After the series of quotes that offers most people a quick and easy substitute for actual thought, the Texas Tornado gets to the point:

[Bennett’s anonymous commenter] Y’s point (read the comments I linked to for her argument and context): “Safety is a necessary condition for the value of liberty.” Philosopher Jeff Mason writes,

It is true that you are free to choose to live or to die, and the manner of your life and death, but what kind of freedom is it that forces you to choose between evils just to preserve your life a little longer in constant danger?

I disagreed at first but, on reflection, I think this is true . . . to a point. A person must have a certain amount of bodily security before she can even think about liberty. So when Y says, “safety is a necessary condition for the value of liberty”, I can’t entirely disagree.

It’s certainly true that the absolutist view has its problems.  I doubt anyone suggests that violent criminals should be free to roam the streets with guns in the interest of promoting freedom over safety.  But where’s the tipping point?  Simpletons would urge us to use common sense, but since that invariably leads nowhere, we need a better answer.

Bennett proposes a Darwinian “fight or flight” type rule, where our evolutionary reaction to danger dictates the level of safety we must achieve before reaching the point where the interest in freedom prevails.

There is a difference, however, between the dangers that might naturally prevent our thinking about liberty, and those that should absolutely always yield to liberty.

The difference is the same as the difference between those dangers that we are physiologically prepared for by evolution, and those that are creations of civilization.

Our bodies have fear systems that are engineered by nature to respond to the sort of threats that human beings faced before they became civilized; these are the sort of threats that other animals face: generally, predators. Our fear systems kick in to help us react in three phases, all in a matter of minutes:

• Pre-encounter (”vigilance”, information-gathering, yellow);
  
• Post-encounter (”fear”, decision-making, orange); and
  
• Circa-strike (”action”, action, red).

If I understand his point (and I’m not sure I do), the answer is that we must do whatever we need to do to confront an imminent threat to life and limb, and live to tell about it, before we can worry about higher order concerns such as freedom.

Bennett distinguishes real fear from perceived or theoretical fear.  This, I believe, makes an excellent point.  If you’re staring down the barrel of a gun, you do whatever you have to do to save yourself.  If you’re reading a newspaper op-ed by a government appointee about the threat of terrorism in the comfort of your kitchen, your safety is not threatened.  Rather, you are at best happy to trade off your continued comfort for someone else’s loss of freedom. 

To the extent that Bennett’s commenter suggests that we can’t worry about freedom while staring down the barrel of a gun, I doubt anyone would disagree.  But to the extent that government whips us into a frenzy about some inchoate threat, such that we allow our fear to take over and willingly offer up our freedom, there is significant disagreement.

Bennett invokes one of my personal favorite theories, Abraham Maslow’s hierarchy of needs.  As I read his post, this immediately came to my mind as well.  Society requires a certain degree of order to function.  We must be capable of relying on the sanctity of our homes, the security of our bodies, the protection of our necessities of life, before we can turn our thoughts to freedom.  As Bennett argues:

A certain amount of government protection is arguably necessary. But we have far more government “protection” than the minimum that we need. We’re far beyond the point at which individual liberty should yield to individual safety, and most societies have been for most of the last five thousand years. Ever increase in governmental power beyond that point provides at best a tiny incremental increase in temporary safety at a major cost to freedom.

The only question that remains is where exactly that tipping point exists.  My best guess is that each of us has a different level of need for safety to allow us to turn our attention toward the higher order concept of freedom.  The problem, of course, is that those of us who value freedom more highly than “a tiny incremental increase in temporary safety” have to live with other people’s choices.  Therein lies the conflict.

The answer could be that the tipping point is where the majority of people feel most comfortable, but this presents the “tyranny of the majority” problem that our Constitution sought to protect against.  This is why the Constitution creates foundational rights, rights that even the majority cannot eliminate in times of anxiety.  

The phrase “the Constitution isn’t a suicide pact” is used by those who employ fear to trump freedom to rationalize ignoring its mandates.  But do we face suicide by adhering to these fundamental freedoms?  The Constitution doesn’t prevent us from defending ourselves, but only from real threats to our physical safety rather than the theoretical ones used to persuade us to give up freedom “just in case.”  When we allow fear to dictate the tipping point  between safety and freedom, we will have neither.

Rick Hills is at it again.  Over at PrawfsBlawg, he’s up to his old tricks of trying to argue that the law professors should stop ripping each others’ heads off and start supporting each other for judicial appointments.  Remember the last time, when he proposed the lawprof “non-aggression pact?”

Here are the terms of the pact: Law profs agree to support any academic appointment to the federal district or appellate bench, full stop. Left law profs will endorse, say, Professor Doug Kmiec for the Ninth Circuit when a Republican occupies the White House; Right law profs will endorse, for instance, Dean Elena Kagan for the D.C. Circuit when a Democrat occupies the White House.

Despite my calm and thoughtful explanation of why this wasn’t a great idea, Hills has been emboldened by the unanticipated support of another lawprof, Carl Tobias, over at Findlaw, who presents a relatively short piece on why lawprofs would make particularly good appellate judges.

Much of the work that law professors undertake strikingly resembles the responsibilities that appellate judges discharge. For example, when conducting scholarship, academics objectively analyze, synthesize and criticize a series of case precedents, attempt to evaluate relevant legal issues from a “big picture” viewpoint, and proffer suggestions for improvements in the law. Appellate judges, in turn, frequently read, evaluate and synthesize a line of opinions and apply their legal reasoning to the facts of specific cases.

Just so we’re clear, this addresses only one aspect of Hills’ proposal, that lawprofs are particularly well suited to be appellate judges, and not the other aspect involving lawprofs ignoring each others ideological positions by sitting silently as part of a non-aggression pact. 

I’ve no doubt that there are some lawprofs who would make great judges.  I’ve no doubt that some would be awful.  But the blanket argument that lawprofs should be a feeder job to the appellate bench is not just problematic to real lawyers, but not well received by other lawprofs.

Doug Berman says:

I fear that too many modern legal scholars, perhaps especially many modern constitutional scholars, tend to give far too little attention and thought to a broad array of criminal justice issues that regularly occupy the day-to-day work of the federal judiciary.  Put another way, I fear that too many criminal justice issues tend to get second-class treatment in the modern legal academy.  I would hate to have a federal appellate bench filled with academics inclined to give criminal justice cases second-class treatment on appeal.

Orin Kerr says:

Perhaps, but there are also reasons to be cautious about this approach. To get a flavor, see this post from back in 2005 about whether law professors should be picked for the Supreme Court:

My instinct is that extensive experience as a law professor probably isn’t very good training for service as a Supreme Court Justice.
Here’s my thinking. As most practicing lawyers know, academia can be a little bit, well, quirky. Law professors generally are rewarded for being clever, or for catching a wave of fashionable ideas and writing a lot about them. Within the academy, it’s frequently better to be gloriously wrong than modestly right.
In my opinion, the qualities of a good Justice are very different. I side with Learned Hand on this one: “The spirit of liberty is the spirit which is not too sure that it is right.” Being fashionable, exceedingly clever, or gloriously wrong aren’t assets for judges.

After Hills’ first stab at this idea, fellow PrawfsBlawger Paul Horwitz said:

It is possible that law professors are less likely to be “corrupt” than these other lawyers, depending on how you define the term, if for no other reason than that they are less likely to be worldly, or at least successfully worldly. But there are all kinds of ways for judges to be corrupt. One of those, and the most important, is to lack impartiality; and I see no reason for assuming that law professors will be impartial than any other lawyer, particularly once you factor in partiality based on political ideology.

An anonymous commenter at PrawfsBlawg says:

Are you kidding me? Under this “logic,” the entire legal academic community would have had to support Yale professor Robert Bork’s appt. to the Court! (Or how do you feel about Boalt’s John Yoo appointment to the federal judiciary?) Come on.

According to Rick Hills, I called him “elitist”.  Nu uh.  It was more along the lines of “nutsy-fagan”.  I try to avoid words that have three syllables in only seven letters.  That’s probably why he didn’t include a link to my post, so that no one would notice that he’s put scholarly-type words in my mouth, the Brute.  My favorite part of my response was this:

And if the disconnect is bad at the trial level, the appellate level can be totally disconnected from reality.  It’s like explaining the flavor of food you’ve never tasted. 

I don’t doubt that there are some lawprofs, with adequate real world experience and who can withstand appropriate ideological vetting, who would make superb appellate judges.  But to contend that lawprofs, per se, make for better appellate judges, and to then argue that the rest of the academy should keep their traps shut and support one of their own, is just, well, nuts.

It should be noted, of course, that I have a horse in this race.  Since I represent real people who might have a case that comes before one of these appellate courts, it’s in my professional interest to have judges sitting on the appellate bench who have some degree of recognition that their doctrinal love ultimately impacts actual human beings.  Someone has to stand up for people.

While burgeoning heroin use in the suburbs of Long Island is certainly something to be concerned about, one has to seriously wonder how and why the Nassau County Legislature had to enact a law to let schools and parents know that their kids were junkies.  According to Newsday,

Nassau lawmakers approved a bill Monday requiring police to notify school districts about heroin arrests, and establish an Internet map on the county police department’s Web site to post those charged to create a broader awareness about the highly addictive drug.

The chief sponsor of the bill, Legis. David Mejias (D-Farmingdale), said it was necessary to include the school boards because “a few of them” had refused to recognize they had a heroin problem.

However, he amended the bill to mandate “communitywide dissemination” of heroin arrests by having police create a Web site that would map arrests for possession and sale of heroin.

The theory behind this law was that schools were clueless about heroin use, and needed to be told where heroin was being sold so that they would . . . do what? 

Andrew Malekoff, executive director of the North Shore Child and Family Guidance Center, testified that it was difficult for parents, and even legislators, to confront heroin abuse.

“Public support must replace secret pain, and therein lies the challenge in Natalie Ciappa’s [a Suffolk County teenager who died of a heroin overdose] Law,” Malekoff said. “With this law comes enormous responsibility. School officials will no longer be able to keep a straight face and say, as I have heard countless times, ‘There is no drug problem in my school district.'”

Is the purpose of this law to embarrass school district in denial that they have a drug problem within their community?  Certainly, school boards should engage in measures to recognize and address student drug use, teaching them to steer clear of drugs and to identify students using drugs and help them obtain treatment.  But this seems an awfully heavy-handed way to accomplish this task, given that having a bunch of junkies running around a school is ordinarily viewed as a problem without requiring a public airing.

But this is Long Island, the land of denial.  The school boards don’t like being singled out one bit:

Jay L.T. Breakstone, vice president of the Nassau-Suffolk School Boards Association, objected to having the boards included in the legislation, arguing that singling them out for notification would make them the targets of lawsuits.

And don’t believe that lawsuits are the issue for second.  It’s about school report cards and house prices and pressure to bear on school boards to fix problems with kids that parents leave behind.  Parents on Long Island do nothing wrong.  None ever has.  Just ask one, and he’ll tell you. 

This is a ridiculous law, inspired by a ridiculous situation created by a ridiculous group of people who can’t manage to come to grips with their own personal reality.  How many parents are so fundamentally out of touch with their children that they don’t notice that junior is a junkie?  Since when do school boards have the responsibility of rooting out drug dealing, arresting and prosecuting the perpetrators?  And if they have this significant of a problem, hasn’t everyone in the chain of responsibility already blown it big time?

It’s not to suggest that the Legislature is being disingenuous in trying to do what it can to deal with a problem that schools are apparently ignoring or denying.  However, this hardly seems like an effective to do so, and it remains unclear what the Legislature thinks the school districts are supposed to do about it, other than sit there red-faced.

On the other hand, there’s no mention of how this law will impact those arrested for drug sales, following up on Nassau County’s “Wall of Shame” of those arrested (but not yet convicted) of DWI.  Will these maps only show locations of alleged drug sales (such as Joe Smith’s living room) or will the information include the identities of arrested but presumed innocent “drug dealers.”  It’s a shame that the prime sponsor of this law, David Mejias isn’t a lawyer, aware of the constitutional issues raised by these dubious efforts to rid Long Island of teenage junkies.  Oh wait.  he is.  Never mind.

And, for the record, Newsday supports this law, because children are good and heroin is bad.  Some very deep thinking went into this one.

Who can forget the video of New York City Police Officer Patrick Pogan nailing bicyclist Christopher Long during the Critical Mass ride last July.  It was a classic, to be forever remembered as “The Big Shove.”  The New York Times announced yesterday that Pogan has been indicted in New York County, a mere 5 months later, (H/T Turk).

So what if it took the District Attorney five months to indict Pogan, despite the fact that there was a video that conclusively disproved the allegations under penalty of perjury made by Pogan against Long in a criminal court complaint.  What’s five months between friends?  It happened.  Can’t we just be happy about that?  Stop muttering “justice delayed is justice…” 

Stuart London, representing Pogan, had this to say:

“My client denies any wrongdoing in this matter,” Mr. London said in an interview Monday afternoon. “I would have people withhold judgment until all the evidence comes out about the bicyclist’s actions prior to my client taking action.”

But Stu, there’s a VIDEO.  Your guy, the cop, swore that the biker tried to run him down.  There’s a VIDEO that shows that your guy is lying.  Have you given any thought to an insanity defense?  No, your right. Stupidity and insanity are not the same thing.

So why should I be so harsh toward this defendant, when preaching that defendants should be presumed innocent?  It’s true that there’s some dissonance here, but beyond the fact that there’s a VIDEO and that Pogan is a cop, there is one additional factor that removes that bone in my head that makes me want to be a little bit sympathetic. 

The fact that Pogan sought to have Long, the cyclist, prosecuted based on a flagrantly perjurious complaint for a crime that never happened in order to cover up Pogan’s own vicious assault sucks all the sympathy out of me on this one.  But for video, Pogan would have been successful and Long would have gone down.  But for video, no one would have believed that this case wouldn’t travel the ordinary path, where judges, prosecutors, defense lawyers and perhaps even jury just shook their collective heads and assumed that the cop was right, the cyclist was wrong, and then it would be time to share a beer at Forlini’s after the cyclist was sentenced.  Life as usual at 100 Centre Street.

Instead, five months later, Patrick Pogan stands indicted.  But for video, this would not have happened.

Doug Berman at Sentencing Law & Policy posts about an opinion letter from the Washington Legal Foundation entitled, Mens Rea Requirement: A Critical Casualty of Overcriminalization. The problem is set out in the second paragraph:

If you ask a non-lawyer to identify a principle of law, he or she is likely to respond with “Ignorance of the law is no excuse.” For much of our history, this would have been a perfectly sensible response. Traditionally, the purpose of the criminal law was the punishment of those who wrongfully caused harm to others, not the regulation of interpersonal affairs. One does not need notice of what the law requires to know that one should not intentionally harm one’s fellow citizen. The mens rea requirement of the criminal law embodies the fundamental principle that punishment requires personal fault.

As legislative bodies have exhausted every possible permutation of malum in se  offenses, the ones everyone knows or should know are wrong without having to be told in explicit detail, they have increasingly crafted malum prohibitum to be used as a regulatory framework to control more behavior that isn’t inherently wrong, but that they have decided for whatever reason shouldn’t be done.  These offenses don’t necessarily involve any moral fault on the part of the perpetrator, but rather a choice between various options, one or more of which has been denominated a crime.

The concluding paragraph sums up the position nicely:

By passing statutes that criminalize innocent or merely negligent behavior or that are so broadly defined that citizens cannot be sure when they are violating the law, the federal and state governments have significantly eroded the traditional mens rea requirement for criminal conviction. This is a development to be much regretted.  There are many things a liberal government may do to improve social welfare.  Government may properly ask individual citizens to make significant sacrifices for the common good.  However, there are also many things a liberal government may not do.  Visiting the opprobrium and stigma of criminal punishment on those who have not behaved in a blameworthy way is among them.  Such official scapegoating is inconsistent with a liberal legal regime. A just legal system does not permit punishment without fault.  Hence, justice demands the reinvigoration and preservation of the mens rea requirement for criminal punishment.

Even amongst lawyers, even criminal defense lawyers, this has become an increasingly troubling issue.  Criminal law has become result oriented, to the exclusion of any concern about mens rea.  When someone is killed, a crime must have been committed.  When someone is harmed, it must be because of a crime.  The fact that the conduct was innocent or negligent no longer seems to deter the demand for punishment.  It’s all about the outcome and that every harm must have a crime to combat it.

Even Doug Berman has difficulty finding this to be too much of a problem:

Ironically, I am not as troubled as the author of this letter by the use of the criminal law to achieve certain regulatory ends.  What does trouble me greatly, however, is the use of severe criminal punishments in the absence of serious culpability.

Of course, this assumes that once criminal law is used to discourage socially undesirable conduct, the slippery slope tends to encourage increasingly harsh penalties if the effect of the law isn’t easily achieved.  One need look no farther than the draconian War on Drugs to find an example of this affect. 

The notion that innocent or negligent behavior should be criminalized is one of the foundational problems as legislatures continue to increase the number of crimes and the volume of human conduct that subjects people to criminal punishment.  Rarely does anyone ask whether there is any moral culpability attached to the conduct at stake, and rarely does anyone care whether the crime sweeps in the innocent along with the guilty.  We want to stop a result, and we’re prepared to take no prisoners in the effort.  But crime isn’t what comes as a consequence of conduct, but what motivates the conduct in the first place. 

This is indeed a development that compels a return to the basics of criminal law, the mens rea requirement.  This is not to say that law cannot or should not be used to encourage or discourage behaviors that impact on society.  But it is to say that converting otherwise innocent or merely negligent conduct into a crime is not the way to do so. 

One of the most vexing conflicts between the defense’s need for sufficient particularity in an accusation and the need to protect children from crime, especially sex crimes, was addressed by the Appellate Division, Second Department in People v. Bennett, via New York Criminal Defense.

In that case, the prosecution charged that a second-grade victim was twice raped within a 7 month window, close to the 9 month window that was previously held to be a per se unreasonable in People v Beauchamp.  The court held that as the window came closer to the 9 months, the court was constrained to apply “heightened scrutiny” to assure that the defense wasn’t stymied by the lack of specificity and that the prosecution took every action possible to provide a clearer time frame for when the crime was alleged to have occurred.

[A] significantly lengthy period is a factor to be considered, with “proportionally heightened scrutiny” given to whether the People’s inability to provide more precise times can be justified as against the important notice rights of the defendant.

Notwithstanding the requirement that a defendant be informed with particularity of when a crime is alleged to have occurred, the courts have long since abandoned the rule when it came to crimes against kids.  Frequently, no one knows that the crime occurred until long afterward, and children are usually unable to specify a date, and frequently even a season, when the crime occurred.  Confronted with this dilemma, something had to give.  Naturally, it was the defendant’s rights that were tossed.

These are nightmare cases.  No one can be unsympathetic toward a child alleged to be a rape victim, and almost everyone wants to see the perpetrator be convicted, not to mention punished harshly.  The minor detail, whether the defendant is the perpetrator, is the rub.  Since children are extraordinarily susceptible to influence, and notoriously bad on providing salient details that one would demand of an adult, these cases  become one huge, fuzzy morass.

When confronted with accusations that are so vague as to provide little to fight against, defendant’s are left to defend against a moving target.  They can’t provide an alibi, since there is no date of offense when it happened sometime within a 9 month period.  It’s impossible to beat up a child on the witness stand, unless one wants to guarantee conviction.  On one side sits the angels, and the devil sits next to the defense lawyer (who is viewed as the devil’s minion at best).  It’s a very ugly situation.

While the Beauchamp 9 month rule provides some limit, it does little to protect a defendant’s right to notice.  The Bennett decision seized upon the fact that the child was able to provide some details that could, with additional investigation, have honed in on the dates when the crime supposedly occurred. 

At trial, the victim testified that the two incidents occurred about two weeks apart when she was in the middle of second grade. The first incident occurred when her mother was at the grocery store with the victim’s brother. The second incident occurred when the mother took the brother to the doctor. The People should have inquired as to when the mother took the victim’s brother to the doctor and/or should have sought to obtain the brother’s medical records to narrow the time frame of the crimes as alleged. The defendant’s ability to prepare a defense was further stymied by the fact that the victim testified that the incidents occurred in the middle of her second grade school year, which would have been during the winter, but the amended bill of particulars provided that the incidents occurred when the weather was warm. Under these circumstances, when the time period charged, namely seven months, approaches the nine-month period found to be per se unreasonable in People v Beauchamp (74 NY2d 639; see People v Sedlock, 8 NY3d at 538), the People are subjected to “proportionally heightened scrutiny” as to whether their inability to provide more precise times is justified (id at 539). There is no indication that the People inquired of the mother or of the doctor of the victim’s brother regarding as to when the brother was treated.

While this is a thin thread to work with, at least the court placed the duty on the prosecution to work a little harder when they allege a 7 month time frame.  What is unclear is whether the court would have placed the same duty on the prosecution had it been a 5 or 3 month period.  After all, the facts suggest that the prosecution could have identified at least the date of one alleged rape through the doctor’s records, and neither the prosecution nor the court offer any explanation for why they shouldn’t have been required to do so rather than charge a vague period of months at all.

The bottom line, particularly in cases where sympathies and prejudice run so strong, is that the less specificity provided the defense, the fewer tools available to address the charges.  If the crime is discrete, then a date and time should be charged so that the defendant can defend the charge.  Without particulars, there is nothing to defend against except vagaries, and this makes for an impossible situation.

It is understandable that children cannot provide the level of detail one would expect of an adult.  It is not understandable, however, that the prosecution is given a pass in providing particulars when, with diligence, it could do so.  This is true whether the period charged is a week or a year.  Why this should vary because of “heightened scrutiny” as the length of the period grows longer makes little sense.  If particulars can be determined, they should be. 

The slippery slope of putting the defendant’s right to notice on a sliding scale lends itself to this sort of mischief.  While the Bennett court no doubt believed it was doing the right thing for the defendant, who was denied his right to specificity and his ability to defend, there is no reason to endorse sloppy investigation or prosecution simply because the victim is a child.  Once the door is opened to sacrificing the defendant’s rights in the name of expediency and sympathy, it’s almost impossible to get it shut again.

I don’t generally post about new blawg reviews, though others do so regularly.  But today’s, hosted by Marc John Randazza and the Satyriconistas, is special.  Today is Bill of Rights Day, and Randazza and the Randazzettes have made it their theme.  As it’s a theme on mine on a rather regular basis, I realized whilst reading Blawg Review #190 why it’s so important that we have a Bill of Rights Day, and how much I appreciate Marc’s choice.

The reason I say this is that despite my continual reference to the Bill of Rights, there are a few of them that I rarely think about.  The founding fathers ended up including ten of them in order to push the Constitution through the colonies.  Had Publius not been so persuasive (and avoided being indicted for using a false identity on MySpace), things might have been different.  But we, the descendants of people with far greater intellect and guts than we can muster from the couch in front of a big screen, flat-panel, hi-def television, came up with ten.

Many of the people who read this post are well aware that there are ten amendments in the Bill of Rights.  Many are very familiar with the first, second and fourth, as well as the fifth, sixth and eighth.  Notice anything missing?

We need somebody to spell out the Bill of Rights from time to time.  Even those of us who work with it regularly, who think we’re pretty aware of constitutional issues and generally on top of things legal, forget that there are those quiet amendments, the ones that lawyers never mention and courts never consider.  The sad truth is, they are the forgotten amendments.

We need to read the Bill of Rights from time to time.  No, I don’t have any particular issue to raise with most of them, though I really can’t get excited by the 7th no matter how hard I try.  The 9th and 10th, on the other hand, present a certain nagging sense that they ought to come into play far more than they do, and I wonder whether the federalists today ought to spend more time thinking about why they don’t.

So a big shout of thanks to the Randazza team for giving me a reason to read through each of the first ten amendments, to remind myself why they are there, and for coming up with a 3d Amendment post, a rather miraculous feat. 

And if you’re wondering why the water is always warm when you dive into the First Amendment, that would be because Randazza keeps the heat turned up.