Short Calendar: May 20, 2014

This is the first in what I hope to be a frequent installment: Short Calendar, my version of the quick hits sports column but with legal news and commentary, for days when I do not write a longer, single-topic post. The idea may not be original but the content will be.

  • Two days into the week and there are already two major victories for marriage equality. A federal court in Pennsylvania struck down the Keystone State’s gay marriage ban today. This is fresh on the heels of Oregon’s state constitutional ban being ruled unconstitutional yesterday. Oregon’s governor and attorney general are not appealing the decision so it is most likely final. The National Organization for Marriage is attempting to intervene but likely will not (and should not) have standing to do so.
  • The PA decision is the 14th consecutive federal court victory for marriage equality (an intermediate state court declared Arkansas’ ban unconstitutional last week but that was stayed and is pending state supreme court review). It will be difficult to reason and strike a tremendous blow to the equal protection clause for any court to rule differently. So when will the Supreme Court weigh in? Talking Points Memo editor Josh Marshall says by the end of this presidential term. Although the Court could wait until some circuit decisions come out and only take a case if there’s a split, I think it will grant cert to the first circuit decision and, in a decision joined by Chief Justice Roberts, will hold all laws against same-sex marriage unconstitutional. I even think the Court decided Windsor and Hollingsworth last year with the plan that they would lead lower courts to decide this issue in a way that would make its eventual decision both climatic and smooth.

Mitch and Cam can now marry legally in more states than California. The number is getting closer and closer to fifty.

  • The Delaware Supreme Court overturned the conviction and death sentence of Jermaine Wright and remanded the case for a new trial, citing among other things, prosecutorial impropriety for withholding evidence.
  • The Eighth Circuit Court of Appeals stayed the execution of condemned Missouri man Russell Bucklew.  Mr. Bucklew claims a medical condition involving his veins and heart would make a lethal injection extra painful. The court noted, “The irreparable harm to Bucklew is great in comparison to the harm to the state from staying the execution.” Even without the medical issue, the irreparable harm (death) is far greater compared to the alternative to any method of execution–life without possibility of parole–and is no more effective in protecting the state.


The 60th Anniversary of Brown v. Board of Education

Sixty years ago today Chief Justice Earl Warren and a unanimous Supreme Court issued the landmark decision of Brown v. Board of Education, 347 U.S. 483 (1954), declaring unconstitutional segregated public schools; that “separate educational facilities are inherently unequal” in violation of the Fourteenth Amendment.

Brown v. the Board of Education was decided unanimously.

The entire decision is reprinted below

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.

These cases come to us from the States of Kansas, South Carolina, Virginia, and Delaware. They are premised on different facts and different local conditions, but a common legal question justifies their consideration together in this consolidated opinion.[1]

487*487 In each of the cases, minors of the Negro race, through their legal representatives, seek the aid of the courts in obtaining admission to the public schools of their community on a nonsegregated basis. In each instance, 488*488 they had been denied admission to schools attended by white children under laws requiring or permitting segregation according to race. This segregation was alleged to deprive the plaintiffs of the equal protection of the laws under the Fourteenth Amendment. In each of the cases other than the Delaware case, a three-judge federal district court denied relief to the plaintiffs on the so-called “separate but equal” doctrine announced by this Court in Plessy v. Ferguson, 163 U. S. 537. Under that doctrine, equality of treatment is accorded when the races are provided substantially equal facilities, even though these facilities be separate. In the Delaware case, the Supreme Court of Delaware adhered to that doctrine, but ordered that the plaintiffs be admitted to the white schools because of their superiority to the Negro schools.

The plaintiffs contend that segregated public schools are not “equal” and cannot be made “equal,” and that hence they are deprived of the equal protection of the laws. Because of the obvious importance of the question presented, the Court took jurisdiction.[2] Argument was heard in the 1952 Term, and reargument was heard this Term on certain questions propounded by the Court.[3]

489*489 Reargument was largely devoted to the circumstances surrounding the adoption of the Fourteenth Amendment in 1868. It covered exhaustively consideration of the Amendment in Congress, ratification by the states, then existing practices in racial segregation, and the views of proponents and opponents of the Amendment. This discussion and our own investigation convince us that, although these sources cast some light, it is not enough to resolve the problem with which we are faced. At best, they are inconclusive. The most avid proponents of the post-War Amendments undoubtedly intended them to remove all legal distinctions among “all persons born or naturalized in the United States.” Their opponents, just as certainly, were antagonistic to both the letter and the spirit of the Amendments and wished them to have the most limited effect. What others in Congress and the state legislatures had in mind cannot be determined with any degree of certainty.

An additional reason for the inconclusive nature of the Amendment’s history, with respect to segregated schools, is the status of public education at that time.[4] In the South, the movement toward free common schools, supported 490*490 by general taxation, had not yet taken hold. Education of white children was largely in the hands of private groups. Education of Negroes was almost nonexistent, and practically all of the race were illiterate. In fact, any education of Negroes was forbidden by law in some states. Today, in contrast, many Negroes have achieved outstanding success in the arts and sciences as well as in the business and professional world. It is true that public school education at the time of the Amendment had advanced further in the North, but the effect of the Amendment on Northern States was generally ignored in the congressional debates. Even in the North, the conditions of public education did not approximate those existing today. The curriculum was usually rudimentary; ungraded schools were common in rural areas; the school term was but three months a year in many states; and compulsory school attendance was virtually unknown. As a consequence, it is not surprising that there should be so little in the history of the Fourteenth Amendment relating to its intended effect on public education.

In the first cases in this Court construing the Fourteenth Amendment, decided shortly after its adoption, the Court interpreted it as proscribing all state-imposed discriminations against the Negro race.[5] The doctrine of 491*491 “separate but equal” did not make its appearance in this Court until 1896 in the case of Plessy v. Ferguson, supra, involving not education but transportation.[6] American courts have since labored with the doctrine for over half a century. In this Court, there have been six cases involving the “separate but equal” doctrine in the field of public education.[7] In Cumming v. County Board of Education, 175 U. S. 528, and Gong Lum v. Rice, 275 U. S. 78, the validity of the doctrine itself was not challenged.[8] In more recent cases, all on the graduate school 492*492 level, inequality was found in that specific benefits enjoyed by white students were denied to Negro students of the same educational qualifications. Missouri ex rel. Gaines v. Canada, 305 U. S. 337; Sipuel v. Oklahoma, 332 U. S. 631; Sweatt v. Painter, 339 U. S. 629; McLaurin v. Oklahoma State Regents, 339 U. S. 637. In none of these cases was it necessary to re-examine the doctrine to grant relief to the Negro plaintiff. And in Sweatt v. Painter, supra, the Court expressly reserved decision on the question whether Plessy v. Ferguson should be held inapplicable to public education.

In the instant cases, that question is directly presented. Here, unlike Sweatt v. Painter, there are findings below that the Negro and white schools involved have been equalized, or are being equalized, with respect to buildings, curricula, qualifications and salaries of teachers, and other “tangible” factors.[9] Our decision, therefore, cannot turn on merely a comparison of these tangible factors in the Negro and white schools involved in each of the cases. We must look instead to the effect of segregation itself on public education.

In approaching this problem, we cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout 493*493 the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws.

Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.

We come then to the question presented: Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other “tangible” factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does.

In Sweatt v. Painter, supra, in finding that a segregated law school for Negroes could not provide them equal educational opportunities, this Court relied in large part on “those qualities which are incapable of objective measurement but which make for greatness in a law school.” In McLaurin v. Oklahoma State Regents, supra, the Court, in requiring that a Negro admitted to a white graduate school be treated like all other students, again resorted to intangible considerations: “. . . his ability to study, to engage in discussions and exchange views with other students, and, in general, to learn his profession.” 494*494 Such considerations apply with added force to children in grade and high schools. To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone. The effect of this separation on their educational opportunities was well stated by a finding in the Kansas case by a court which nevertheless felt compelled to rule against the Negro plaintiffs:

“Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racial[ly] integrated school system.”[10]

Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority.[11] Any language 495*495 in Plessy v. Ferguson contrary to this finding is rejected.

We conclude that in the field of public education the doctrine of “separate but equal” has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment. This disposition makes unnecessary any discussion whether such segregation also violates the Due Process Clause of the Fourteenth Amendment.[12]

Because these are class actions, because of the wide applicability of this decision, and because of the great variety of local conditions, the formulation of decrees in these cases presents problems of considerable complexity. On reargument, the consideration of appropriate relief was necessarily subordinated to the primary question— the constitutionality of segregation in public education. We have now announced that such segregation is a denial of the equal protection of the laws. In order that we may have the full assistance of the parties in formulating decrees, the cases will be restored to the docket, and the parties are requested to present further argument on Questions 4 and 5 previously propounded by the Court for the reargument this Term.[13] The Attorney General 496*496 of the United States is again invited to participate. The Attorneys General of the states requiring or permitting segregation in public education will also be permitted to appear as amici curiae upon request to do so by September 15, 1954, and submission of briefs by October 1, 1954.[14]

It is so ordered.

…and out comes the Wolf-PAC: An Amendment to Be

There are a lot of political “donors” who have got too much freedom / I want to make it easier for policemen to beat ‘em. I do, but that’s not the goal of Wolf-PAC, an organization founded by Young Turks host and political commentator Cenk Uygur. The goal is to reduce the political influence of corporations, unions and other organizations by limiting their campaign spending. This limits our liberties because individuals are dwarfed by big contributors.

Diamond Joe Quimby finds a briefcase left for him by a campaign contributor.

But why can’t we just make laws against what certain organizations can broadcast or spend during elections? Because after the Citizens United decision, that kind of law would be unconstitutional. And we know that only the Supreme Court can limit constitutional rights.

“But if we changed the Constitution…” …we could make some good laws. Enter Wolf-PAC. Wolf-PAC is a grass roots movement urging state legislatures to pass resolutions demanding a national constitutional convention to propose an amendment. Remember that Article V provides that an amendment may be proposed by 2/3 of both houses of Congress or by a convention called by 2/3 of state legislatures. Wolf-PAC is opting for the convention proposal because it does not think Congress would pass such a proposal. Based on Congress’ inability to pass much of anything worthwhile, it is probably correct.

Although I don’t like limiting speech, I think restrictions on types of political spending and advertising are necessary to encourage and protect all political speech. Politicians from both parties are beholden to money and the people or groups who supply it. When someone slips a representative a briefcase full of money in exchange for a vote or favor, that’s bribery. When the money is a donation to a campaign or an ad on TV, then it’s all good. Additionally, representatives spend most of their time fundraising instead of legislating. All of this harms democracy.

This should be a nonpartisan issue. After all, politicians on both sides of the aisle are bought. If you’re a liberal, you should want your elected Democrats to support progressive ideals and not what the money tells them too. Conservative individuals’ interests do not always line up with corporate interests. It is important to note that unions will also have their influence restricted under this amendment. Unions, while often allied with Democrats, represent themselves and their members, not necessarily all working people’s interests.

Big bucks can turn any politician into a monster.

The convention method has never before been successfully used to propose an amendment. But there’s a first time for everything and this is a good idea. So is eliminating the electoral college.

Cruel and All-Too-Usual

Last week Oklahoma executed condemned defendant Clayton Lockett. The trending headline was that the state “botched” the execution because the new mix of drugs it caused it to take 45 minutes and inflict great pain before death. The execution wasn’t botched–the state attempted to kill a man and succeeded. The state really wanted to do it too. When the Oklahoma Supreme Court stayed the execution, Gov. Mary Fallin ignored the stay and ordered the state to proceed. A state legislator prepared impeachment proceedings against the justices who issued the stay which led to those justices to reverse themselves and allow the execution. Note that supreme court justices in Oklahoma face state elections.

The issue the now deceased Mr. Lockett’s attorneys argued was the secrecy and safety of the drugs of death. States that use lethal injection have been having difficulty obtaining the standard drugs because the European companies that produce them won’t allow them to be used in executions and American companies do not want to start making them. As a result, states desperate to kill have been trying new things. A three-drug protocol was developed in the 1970s to make executions quick without being cruel and painful. Unable to obtain these drugs, Ohio and Oklahoma both used new concoctions this which were untested and not as smooth to say the least.

There were two reactions after the execution was revealed to be less than optimal: 1. That it was terrible, unjust, cruel, etc., and 2. So what? If anything, he didn’t suffer enough! Both reactions are ridiculous. I’ve written about the death penalty in this blog here, here, here and here. I’m against it. Complaining about the method of execution obfuscates the fact that it’s the process–from arraignment through trial and execution–that is unjust and should be eliminated. If a state’s method of execution were for a condemned person to eat, drink and have sex until he or she died of a heart attack, I’d still be against it because the death process is legally unfair and convicts the innocent without being effective in reducing crime.

Connecticut’s upright jerker (patented as the “automatic gallows”). Invented by the Warden of the old State Prison in Wethersfield in 1895, it hung a person by yanking upward on his neck.

The “just shoot him and bill the family for the bullet” argument might get you cheers at a Republican debate but is also a perversion of the criminal justice system because we have the Eighth Amendment which prohibits “cruel and unusual” punishment. That is why we don’t have floggings as punishments for crimes anymore. It’s why death can no longer be a punishment for a non-murder crime against individuals. Executions for rape and robbery–when the victim survived–occurred until the 1960′s. What is cruel and unusual is judged on the “evolving standards of decency” in our society. Strangely it would be cruel and unusual for a state to beat a defendant half to death as punishment for a crime yet it is not cruel and unusual to inject or electrocute him all the way to death. There’s a good argument now that drug manufacturers–not exactly philanthropists–won’t produce execution drugs that society is evolving out of execution. Europe, Australia, Canada, Mexico and South America have already reached this point. The United States, much of the Middle East, Russia, China, North Korea and Vietnam are not there yet.

How do we know that there has been some evolution of decency in the death penalty? Just look at the states that do it. All states have lethal injection even if some still allow defendants to choose a previous method (hanging, firing squad, electrocution, lethal gas, upright jerker). The states that are against the death penalty repealed it. The states that upgraded to lethal injection were clearly ones that supported it. Injection is much more costly than hanging, electrocution or firing squad, so it isn’t cost. There aren’t any Constitutional issues because the Supreme Court has not banned any individual method (although if a state brought back stoning or dismemberment, a 5-4 majority might rule it unconstitutional). States switched to lethal injection because some lawmakers believed that people executed should retain some sort of dignity. Or it could be even more self-serving: they did not want to be perceived as cruel or barbaric. Killing isn’t and shouldn’t be an easy thing for any person to do and even the executioners know that.

“The Constitution is next.”

Here’s a proposal: for an execution to proceed, the governor of the state must carry out the sentence. Not just attend the execution, but throw the switch. Someone else can do the prep work. See how many death warrants are signed then. Rick Perry is a man of faith and justice, surely he can personally push the plunger. Or to save money, he can use a firearm of his choice. There’s a good chance he had an innocent person executed so the guilty shouldn’t be too hard. Gov. Fallin wanted to kill Mr. Lockett so badly, she should jump at the opportunity to see justice done. The legislator who tried to impeach the state supreme court could join her. There’s always “eye for an eye” and justice for the victims talk on the topic of capital punishment. Then why not borrow a page from the past and grant them the legal authority to kill the offender in any method of their choosing? How many would actually go through with it? If that prospect isn’t as appealing for most people as it was in Biblical times or even the early 1900′s, it could be because standards of decency really are evolving.

Say a Prayer For the First Amendment

The bright side of the Supreme Court’s holding in Town of Greece v. Galloway is that it will be easier to give the Establishment Clause the funeral and Christian burial that it deserves.

I wrote about this case before it was argued and criticized Pres. Obama and the administration for siding with the town. This was the case wherein the town of Greece, NY opened its town meetings with prayers given by local citizens and clergy. An unsurprising majority of Justices Kennedy, Roberts, Scalia, Thomas and Alito reversed the Second Circuit and held that the town did not violate the First Amendment. To be clear and fair, the issue wasn’t whether prayer before town meetings violates the First Amendment but whether the prayers should follow guidelines so as not to offend or endorse religion (even the dissenting justices–the “liberal” wing of the Court–opined that prayer itself is not violative of the First Amendment). The majority opinion essentially allows a person to lead the meeting in any prayer

Is Rev. Lovejoy speaking in church or at a Springfield town meeting? After the Greece decision, it’s hard to tell.

To recap, the First Amendment provides the following:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

The first line contains the Establishment Clause and the Free Exercise Clause, which form the bases for the supposed separation of church and state. Organized prayers in public schools and before football games have been held unconstitutional because such prayers show a government preference for religion instead of non-religion and any prayer would likely be an endorsement/establishment of that prayer’s religion. So why are town meetings different?

The majority opinion, using Justice Kennedy’s typical judicial gymnastics, is based primarily on tradition: Congress and state legislatures have been opening sessions with prayers and have employed chaplains since the beginning of the nation. He based it on the Court’s decision in Marsh v. Chambers, which upheld legislative prayer and chaplains. Kennedy further reasoned that the prayer is not coercive (which school prayer is) because people are free to leave the meeting or arrive late. Additionally, it is done for ceremony and not as government business.

This decision wouldn’t be monumentally awful if it just maintained the law of Marsh. The devil is often in the details in these cases. Legislatures (including Congress) give their chaplains guidelines and offer broad prayers (ones that focus on nature, creation, strength etc. and not specific theology such as Jesus or Muhummad). The Greece decision will allow any prayer, even something clearly proseletzying in nature.

Although Justice Kagan in dissent did not argue that government-sponsored prayer was unconstitutional in all circumstances, she did hammer the majority’s coercion argument:

Here, when a citizen stands before her government, whether to perform a service or request a benefit, her religious beliefs do not enter into the picture. See Thomas Jefferson, Virginia Act for Establishing Religious Freedom (Oct. 31, 1785), in 5 The Founders’ Constitution 85 (P. Kurland & R. Lerner eds. 1987) (“[O]pinion[s] in matters of religion . . . shall in no wise diminish, enlarge, or affect [our] civil capacities”). The government she faces favors no particular religion, either by word or by deed. And that government, in its various processes and proceedings, imposes no religious tests on its citizens, sorts none of them by faith, and permits no exclusion based on belief. When a person goes to court, a polling place, or an immigration proceeding—I could go on: to a zoning agency, a parole board hearing, or the DMV—government officials do not engage in sectarian worship, nor do they ask her to do likewise. They all participate in the business of government not as Christians, Jews, Muslims (and more), but only as Americans—none of them different from any other for that civic purpose. Why not, then, at a town meeting?

I think that any government endorsement of religion goes against the First Amendment because for the freedom of religion to work, one must also have the freedom from religion. The ideas that people should pray and that prayer works (after all, someone or something must be listening to the prayer in order to do it) are themselves theological. The major reason that individual denominations have thrived in the United States is because the government by not establishing a religion did not discourage others. Non-religious schools of thought such as agnosticism and humanism deserve the same privilege. Countries that have official or at the very least dominant religions do not have the same plurality and diversity of religious ideas that we have here. It is with great irony that England with its official church–which the Quakers and Pilgrims so famously fled–is now a much more secular country than our own.

The Fourth Amendment Up in Smoke — Navarette v. California

Legal research often takes me back to the 1960′s and 70′s. The Supreme Court, first under Chief Justice Earl Warren, defined many Constitutional rights. Many cases involved the rights of the accused, such as Mapp v. Ohio (exclusionary rule), Gideon v. Wainwright (indigent right to appointed counsel), Miranda v. Arizona (no description necessary). Warren Burger succeeded Warren as Chief Justice in 1969 and the Burger court, while not as progressive as the Warren court, continued or at the very least did not reverse the criminal jurisprudence of the preceding decade. The decline began with the Rehnquist court in the 1980′s and 90′s and continues in the present with the Roberts court.

Today, the Supreme Court issued the decision of Navarette v. California with a majority of Justices Thomas (the author), Roberts, Breyer, Alito and Kennedy. Justice Scalia (Warning: I agree with Justice Scalia) sharply dissented, joined by Justices Sotomayor, Kagan and Ginsburg. Navarette was a Fourth Amendment case and while today’s decision does not carve out a new exception to the warrant requirement, it does make it easier for the police to stop vehicles.

The defendant Navarette was stopped on the highway in California after a 911 caller said that his truck ran him or her off the road. The police, suspecting drunk driving, saw the truck on the highway, followed it and stopped it. After stopping the truck, the police smelled marijuana (police ALWAYS smell marijuana although in this case they probably really did), searched the truck and found bales of marijuana in its bed. It seems pretty open and shut, so what was the Fourth Amendment issue? It wasn’t in the search because the smell of the weed likely provided the requisite probable cause to search. It lies in the stop–did the police have reasonable suspicion to stop the truck? There must be reasonable suspicion that a crime is taking place, has taken place or is about to take place involving the vehicle. That could be a traffic violation. The caller said that the truck ran him or her off the road, which would suggest reckless driving or possibly drunk driving. The caller described the truck and its location and that was enough for the majority to find reasonable suspicion in the totality of the circumstances.

Justice Scalia argues in dissent that there was not enough for reasonable suspicion because the call was anonymous and uncorroborated. The Supreme Court previously held in Florida v. J.L. that an anonymous tip that a young man was carrying a gun without anything more than a description and his location was not enough to justify a stop and search of him. In Alabama v. White, the Court upheld a stop based on an anonymous tip because the police corroborated it through their own investigation. That didn’t happen in Navarette. Although the police followed the defendant, he did not commit any traffic violations during that time nor did he show any signs of drunk driving. There was no corroboration. There was no accident or even identification of the caller.

Why shouldn’t an anonymous tip be enough on its own? Reliability. Our law, especially Fourth Amendment law, requires that information that leads to criminal action against an individual be reliable. That is why judges must sign off on warrants. It is also why courts prefer in person testimony over hearsay. An anonymous call could come from anyone and be for any reason. It is easy to side against the defendants in these cases because appeals come from guilty defendants. We don’t find out about many people who were shaken down by the police on bogus tips.

Based on the Navarette decision, an anonymous tip that a van was made entirely of marijuana, even without any corroboration, would be enough to warrant a traffic stop.

Aside from confrontation clause issues, the Roberts court has not been friendly to criminal defendants. Last year the Court held that a defendant’s silence can be used against him. Two years ago the Court upheld the use of strip searches for taking arrested persons into jail.

The dissent closes by saying, “Drunken driving is a serious matter, but so is the loss of our freedom to come and go as we please without police interference.”

No Fourth Amendment issues here. The van is already parked and open to plain view and plain smell.

Diversionary Programs AR No Guarantee

One of the most common question of people who are charged with criminal offenses is “what can I expect for a sentence” and it is often followed by “this is my first arrest” or “I have no record.” In many situations, a person may be able to avoid a criminal record without trying the case or having the charge nolle’d by the State. Connecticut (and most other states) has many diversionary programs for criminal defendants. When a person enters a diversionary program, the criminal charges will be dismissed if he or she satisfies various responsibilities over a period of time. As a result of the dismissal, there would be no criminal conviction.

Connecticut’s programs include the venerable Accelerated Rehabilitation (“AR”) for many misdemeanors and felonies, the Alcohol Education Program for DUI’s, Drug Education and Community Service Program, Family Violence Education Program (self-explanatory) and Supervised Diversionary Program (SDP or “Psych AR”) for people with psychiatric conditions. Each program has its own eligibility requirements. For instance, for a non military veteran to be AR eligible, he or she must not have a criminal conviction record, not have ever used the program before and not be charged under a statute that is an automatic disqualifier.

There are two stages for the application to these programs. The first stage is the person stating that he or she is eligible for the program in open court. The second stage is when the court either grants or denies the program based on its evaluation of the person between the two court events. It sounds simple enough: no trial, no jail, just filling out some forms, so why hire a lawyer if one is eligible?

“Bart, stop causing a diversion.”

For starters, diversionary programs are ultimately the discretion of the court–the judge decides whether a person is granted a program even if the person is preliminarily eligible. A court may decide that although a person is eligible in the first stage, that person should not be granted the program. One reason for a denial is that the charge or charges is too serious even if it is not program prohibitive by the statute. I’ve seen this happen for burglary charges. Another is the likelihood of a defendant reoffending. During the second stage of an application, an attorney can argue for the granting of the program and can also negotiate with the judge and prosecutor during pretrial as to the program’s requirements or special conditions.

On the opposite end is that a charge might be minor enough or the State’s case weak enough that another sort of nolle or dismissal can be worked out. I’ve done this a few times: reduced a reckless driving (a misdemeanor, not just a traffic violation) to a traffic infraction, had clients do community service in exchange for nolles of breach of peace, complete substance abuse treatment in a domestic violence case instead of FVEP. The reasons or doing this are to preserve a program for the future and to save time and money–some programs require class fees and most take time until they are completed and the case is dismissed, up to years at times. Programs to avoid convictions are great–avoiding programs is even better.

Corporations Can’t Use Contraceptives

For those of you who go to church, how often do you see corporations in attendance? Not employees or stockholders of corporations, but the corporations themselves, the certificate and articles of incorporation sitting in a pew and going up for communion. I don’t belong to or attend any church but am pretty sure that they do not.

People in the United States have the right under our Constitution to freely exercise their religious beliefs and also to not have that right unduly burdened by government action. Many people are claiming that various aspects of the Affordable Care Act (popularly known as Obamacare) is violating their religious beliefs, especially the contraceptive mandate. The mandate was argued at the Supreme Court last week in the Sebelius v. Hobby Lobby Store, Inc. and Conestoga Wood Specialties Corp. v. Sebelius.

In those cases, for-profit businesses (note the Inc. and Corp. in the litigants’ names) argued that the ACA’s contraceptive mandate violated their religious liberties. Here is the actual issue: Whether the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. §§ 2000bb et seq., which provides that the government “shall not substantially burden a person’s exercise of religion” unless that burden is the least restrictive means to further a compelling governmental interest, allows a for-profit corporation to deny its employees the health coverage of contraceptives to which the employees are otherwise entitled by federal law, based on the religious objections of the corporation’s owners (emphasis added).

The National Constitution Center has a very good analysis and expectations by Constitutional scholar Lyle Denniston and attorney/Harvard law professor Alan Dershowitz. Both see in the tea leaves that the Court will decide the case on narrow grounds, either that the Religious Freedom Restoration Act does not apply to corporations or that it does but only to closely held entities. Knowing the Roberts court, I would agree. But that is not how I’d rule.

I would reject the companies’ arguments on the basic grounds that neither the RFRA nor the free exercise clause apply to corporations: that corporations are not people and do not have religious rights. The text of the RFRA applies only to persons. But what of the fact that corporations are owned by people (stockholders)? That does not matter. Corporations are legal entities separate from their owners. Business owners choose to form corporations or LLC’s (limited liability companies) so that they will not be personally liable for the business. For example, if a corporation can’t pay its bills, absent personal guaranties, the creditors cannot hit the individual owners. The same is true for lawsuits: in order to hit an owner personally in an action against a corporation, a plaintiff must pierce the corporate veil which is not easy to do. This is called limited liability. It is not a constitutional right but a protection granted by the states. Business organizations that do not enjoy limited liability include sole proprietorships (not even an entity–really the person doing business in his own name) and partnerships. The owners of these businesses are personally liable for company debts and judgments.

If Hobby Lobby wins, it can decide if it’s employees are sponge-worthy.

Because a corporation is an entity separate from its owners, its providing of healthcare to its employees is the action of the corporation itself, not its owners. The owners are of course free to use or not use contraceptives in their own lives.

In short, if you want to form an entity separate from yourself so that you can protect yourself from liability, then you should not be allowed to use your personal beliefs to circumvent a law that applies to your company. When your company enters the marketplace, it must follow the rules of the marketplace. I don’t think any business, whether a limited liability entity or not, should be allowed exemption from a neutral business requirement but I’d be willing to compromise: if you organize as a sole proprietorship or partnership, you can claim that your company shares your religious beliefs because it can’t be separated. I don’t see Hobby Lobby doing that.

Snoop Dogg has a pocket full of rubbers and his employees do too:

Bondsman or lawyer, who are you going to call?

Few people want to go to jail, which is why they employ lawyers to represent them in criminal cases. In many cases, the lawyer is not the first person who is called. As I wrote in my bail bond post a while back, after an arrest police may release a person from custody on a PTA (promise to appear; “own recognizance”) or set a bond before arraignment. Bond can be posted in full or by a bondsman (bondsman refers to a professional bondsman as well as a surety bail bond agent). For some, the specter of spending any time in jail, even if only for a night at the police station, is enough to spring for the bondsman. To review: a person pays a premium to the bondsman, which is a fraction of the bond amount, as a nonrefundable fee for the bondsman’s services to serve as a surety.

I’ve said before and I’ll say it again: the first thing anyone should do when arrested is invoke his or her rights to silence and counsel. The second thing is to actually call a lawyer to assess the situation and prepare for representation. If there is a bond, the lawyer can determine how to approach it–whether and when to bond out. He or she can also arrange for the bondsman.

Why hire a lawyer before bonding out? Wouldn’t it be better to bond out, look for a lawyer and get started defending the case? For starters, it can actually save money. If a person goes to a bondsman and pays the premium, that premium is based on the current bond amount. If he or she waits, a lawyer has the opportunity to argue the bond down at arraignment. It is not uncommon for courts to reduce initial bonds of $5000 or more to PTA’s. A lower bond means a lower premium. The savings in premium can be worth the attorney’s fee.

Get out of jail for free? Nah, get out of jail for a fee.

Another reason is saving jail credit. When a defendant does not bond out and stays in jail during the pendency of his or her case, the time between the arrest and sentencing counts against any final sentence of imprisonment as preconfinement credit. For a case that has a strong possibility of a conviction and jail time, such as a firearms or drug charge with a mandatory minimum sentence, it may be more sensible to stay in jail and earn credit rather than pay a bondsman for what could only be a few months of limited freedom.

In addition to exhausting a budget and burning credit, posting a bond or paying a premium can place a defendant in the unenviable position of being indigent and not eligible for appointed counsel. The public defender’s and court’s indigency determinations might not account for money or assets that have already been spent on the bond. A court might also reason that the ability to somehow make a high bond is evidence of the means to pay for an attorney.

Bail and bonds are major parts of the criminal justice system. Like every other aspect criminal defense, one should seek the advice of an attorney for bonding out.

The Good Kind of Texas Justice

Congratulations to Daniel Villegas and his attorneys. Mr. Villegas was released on bond today after it was set following a Texas appellate court’s overturning of his murder conviction from 1995. He was imprisoned that entire time. A bond was set because in most cases when a conviction is reversed or vacated, the case goes back to where it was before the error occurred. In this case, that was trial. Mr. Villegas is back to just being an accused (rather than convicted) defendant and can be re-tried.

The reason for the vacatur was that Mr. Villegas proved that his attorney rendered ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments. In addition to the ineffective assistance claim which he won, Mr. Villegas asserted actual innocence–that he did not commit the crime alleged. A key part of the evidence admitted against him in the original trials was his confession, which he claims was false–that he was coerced by the police into incriminating himself (to be accurate, the habeas claim that succeeded concerned third-party liability).

Whether Mr. Villegas’ confession were false or not, false confession is a real thing. According to the Innocence Project, 25% of people exonerated by DNA evidence falsely incriminated themselves. It sounds crazy to most people. While it makes sense to lie to get out of trouble, why would someone make untruthful statements that get him or her into trouble? I’ve written about why someone might stop answering questions. Confusion could be a reason why someone gives incorrect and incriminating answers. Coercion is the best known reason. There’s physical coercion by which a confession is literally beaten out of someone, and then there’s mental coercion, the classic “tell us and we’ll let you go.” This case includes the claim of coercion as well as a couple of other possible reasons. One is that Mr. Villegas was 16 years-old, a juvenile, at the time of his confession. Another is a learning disability. Although it is not clear what effect if any Mr. Villegas’ youth or mental condition had on his confession, young people and those with diminished mental capacity are more susceptible to falsely confessing.

“I shot the clerk?” My Cousin Vinny provides a great example of the perils of talking to the police. Bill Gambini asks a detective, “I shot the clerk?” in response to an allegation. The detective hears that not as a question but the statement, “I shot the clerk.”

In Connecticut, for interrogation statements to be admissible against juveniles in delinquency proceedings, the statements must be made in the presence of the juvenile’s parent or guardian after they were advised of their Miranda rights (or for 16 and 17 year-olds, after the the juvenile is informed that he or she has a right to have a parent present for the interrogation as well as his or her Miranda rights).

The best course of action is to not speak to the police without an attorney.

Criminal justice hall of famer Ernesto Miranda was convicted in his second trial after his original conviction was invalidated by the case which now bears his name.

Daniel Villegas fought and won himself another shot at freedom. Many lost the means to continue fighting