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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.

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.

Bailing Out: How Bail Bonds Work

The goal for most people who are arrested is to get out or stay out of jail. For many people that can be accomplished very soon after arrest, at least for the short term. While criminal charges are pending, a person is innocent until proven guilty but his or her freedom is still constrained. The bail process allows a person to be free from confinement before the case is decided. Many people are released on a PTA (Promise to Appear), which requires nothing but a promise to appear for all court events. People who are not released on a PTA are given a bond. The bond is what must be posted, usually money, in order to secure release. Bond may be posted by the defendant or another person, or by a professional surety, known as a bondsman or bail bond agent. If the bond is cash-only, it cannot be posted by a professional.

High bonds are bad news for most defendants.

The bail process starts with the arrest. The police may set (based on their department policies) a bond or release a person on a PTA. The bond may be posted at that time and the arrested person can go home. If the person cannot make bond, he or she remains in custody until Arraignment which occurs on the next court day. The defendant can argue bond at arraignment and the judge can modify or maintain the original bond. The bond can be posted at court or at the jail after it is set. If the defendant cannot post bond, he or she is committed to the custody of corrections and will remain in jail until the bond is posted, terminated or the case concludes. Even after conviction, one can remain out on bond pending sentencing or appeal.

No discussion about bail is complete without bail jumping. Bond is essentially collateral or attending court. When a person out on bail misses court, the bond can be forfeited. Failure to appear (FTA) in Connecticut is an additional criminal charge–an additional misdemeanor if the defendant fails to appear for a misdemeanor and a felony if that person fails to appear for a felony. When a person fails to appear, the court usually issues a bench warrant which allows the defendant to be re-arrested and brought back to court. A bench warrant may however be vacated in certain circumstances. If a defendant used a professional surety, the surety is able to track down and apprehend the defendant. That is where bail enforcement agents come in. Bail enforcement agents (commonly known as bounty hunters even though not all bounty hunters are licensed bail enforcement agents) are professionals hired by sureties to apprehend people who jump their bail.

You were probably expecting Dog the Bounty Hunter. I give you Steve McQueen.

If you are arrested or know of a warrant, it is best to contact an attorney to help guide you through the criminal and bail processes.

Top Ten Law-Related Christmas Songs

While many people slow down around the holiday season, this is actually one of my busiest times of the year. In addition to my usual cadre of cases, I’m defending a green guy charged with stealing Christmas (he gave the stuff back!) and prosecuting foreclosures and evictions for a client named Mr. Potter. Since the law doesn’t take holidays, here are ten songs to get you into the holiday spirit and also highlight some of the season’s common legal issues.

The Kinks “Father Christmas”
This holiday favorite stands on its own as a rock song. The protagonist is a department store Santa who is roughed up by a group of youths who want money and not toys (this song was written during the English recession in the ’70s). One asks for a job for his unemployed father and another asks for a machine gun so that he can threaten and rob. Larceny, robbery, assault and threatening are among the potential crimes described. Additionally, this fun-sounding song delves into the relationship between poverty and crime.

Bob Rivers and Twisted Radio “Police Stop My Car” (to “Feliz Navidad” by Jose Feliciano)
A common theme in these Christmas rock songs is having too much to drink. In this song, the speaker is pulled over for a DUI. Have a sober–or get pulled over–Christmas.

The Pogues “Fairytale of New York”
Having too much to drink lands this singer in the drunk tank on Christmas Eve. At least he wasn’t driving. Public intoxication is not a crime in Connecticut however intoxication can lead to breach of peace, disorderly conduct, assault and other charges. Additionally, drug possession is referenced (“you’re an old slut on junk”). The subject couple in this song immigrated to the US and may face ICE (Immigration and Customs Enforcement–not frozen water) issues.

No Doubt “Oi to the World” (cover of the Vandals)
A gang fight between punks and skinheads breaks out only to be settled by Christmas magic. Before Gwen Stefani went B-A-N-A-N-A-S, she fronted No Doubt (bonus: does anyone recall the Gwen Stefani stomach-pumping rumor from way back?).

The Vandals “A Gun for Christmas”
The singer here gets a gun for Christmas to protect his other gifts. If giving or receiving a firearm, check all applicable firearm statutes to avoid legal problems. The Vandals recorded an entire Christmas record. “My First Christmas as a Woman” is another good listen.

Ramones “Merry X-Mas (I Don’t Want to Fight Tonight)”
The song and video imply an unstable couple on the brink of family violence (here’s a tip- don’t say “Hi ho, let’s go” to your significant other). Christmas Eve is not a night to fight. If you get taken in and can’t post bond, because Christmas is a court holiday, you won’t have the chance to argue it down or be released for another day.

Blink 182 “I Won’t Be Home for Christmas”
This guy did fight before Christmas and spent the holiday in custody. On a serious note, incarceration affects not just convicted defendants but their families who will spend holidays without them.

Dr. Elmo “Grandma Got Run Over By a Reindeer”
This is a great song for lawyers because it involves both civil and criminal issues. Christmas drinking does it again as Grandma never makes it home after drunkenly trudging through the snow. Civilly there is a potential wrongful death action against Santa. Grandpa should note that the statute of limitations in CT is two years. It might take a while sending a marshal to the North Pole to complete service. Santa will need a lawyer for the possible criminal charges, which may include manslaughter and/or homicide by a motor vehicle. His sleigh insurance carrier will likely defend him in the civil suit.

Weird Al “The Night Santa Went Crazy”
Santa really goes over the deep end in this one. Maybe it’s related to being sued and losing his license for running over an old lady or that was just an indicator of a larger problem. Santa lands in federal prison after committing cruelty to reindeer, unlawful restraint and using dangerous weapons, including a flame thrower and a Luger. I’m not sure how the U.S. has jurisdiction over the North Pole. I’m guessing it has something to do with maritime law. Note that the opening of this song is similar to “Black Gold” by Soul Asylum.

Dropkick Murphys “The Season’s Upon Us”
Just seeing that the Murphy’s recorded this song is enough to know that it’s about drinking. Although it doesn’t explicitly reference criminal activity, you know there’s going to be some fighting and probably a divorce at some point.

Have a safe and legal holiday season! If you don’t, call me.

Maryland Abolishes the Death Penalty. 18 Down, 32 to Go.

Another one bites the dust. Last week, Maryland Gov. Martin O’Malley signed a bill passed by the state legislature to repeal the death penalty. The Old Line State became the sixth state in six years to repeal its death penalty. Connecticut repealed the death penalty a little more than a year ago. Sort of.

The repeals that are now law in both Connecticut and Maryland prevent the penalty from being imposed. Convicts currently condemned to death still may be executed. Specifically, crimes committed after April 24, 2012 in Connecticut would not be eligible for the death penalty. A recent high-profile case necessitated that quirk for the bill to be passed. Our state Supreme Court will end up deciding whether the eleven prisoners on death row will be executed. It heard the first challenge on April 23 in the case of Eduardo Santiago. It also remains possible for the State to seek the death penalty on a prosecution that begins after April 24, 2012 if the act was committed before that date.

George Appel prepares to ride the lightning in New York in 1928. His famous last words: “Well gentlemen, you are about to see a baked ‘Appel.’”

Maryland’s new law stops death penalty prosecutions going forward no matter when the charged offense was committed. The governor, who has latitude in commuting sentences (our governor does not have such power–that is vested in the Board of Pardons and Parole), says he will review each case individually in addition to the expected legal challenges.

So in the states that repealed the death penalty, horrible murderers will be paroled instead of executed? No. In states that repeal the death penalty, persons convicted of the most severe murder charges (we used to call it capital felony–it is now murder with special circumstances) will receive sentences of life without the possibility of parole, which is what they would receive if they were convicted of the crime but not give the sentence of death in the penalty phase of the trial. Life without the possibility is essentially a death sentence anyway. A convict is locked up and the key is thrown away.

Maryland is now one of eighteen states to no longer have the death penalty (or have some sort of repeal in effect). With most of our country including the federal government still having this penalty as law, there is a long way to go. For many reasons, some I have already written about and others that I can and will write about in the future, the death penalty is unfair and inimical to our rights. The government must both protect the people from crimes committed by other people, and ensure that people’s rights under the law are protected. This is not to be a balance. Both objectives must be satisfied fully and fairly. Life without parole is the least restrictive means to punishing the worst criminals and protecting the public from them. A prisoner will never be free to hurt again but will remain alive to pursue the legal remedies available to him–such as clemency or a claim of actual innocence. Kirk Bloodsworth, whose name couldn’t have helped him at trial, was sentenced to death in Maryland in 1985. In 1993, he was released when his innocence was reestablished by DNA testing, becoming the first person to be exonerated from death row by DNA evidence. He wasn’t the last. Since 1973, 142 people have been exonerated and freed from their sentences of death.

Facebook ‘em, Danno. Social media and legal evidence.

Social media occupies a firm place in our society and many people’s time. Facebook, Twitter, Instagram and other platforms have made all sorts of things easier, from checking out pictures of your friends’ dogs to creating a scandal that forces you to resign from Congress. The prevalence of social media and available technology has led to the adverse phenomenon of individuals over-sharing information about themselves. This modern hubris most often leads to ridicule or just disgust by the person’s followers. Sometimes, it leads to legal problems.

My good buddy Jesse Dill, a Milwaukee attorney who is an authority on social media legal issues, Tweeted a link that the IRS may begin checking the Facebook and Twitter pages of individuals who have questionable tax returns, with the aim to uncover evidence of higher income or lavish spending.

This follows a trend among law enforcement agencies. Police departments all over the country have been using social media in their investigations. In many cases the work is already done for them by suspects sharing information of criminal activity, from pictures of drugs, guns and money to straight-up boasts of committing a crime. One of many examples is a young man in Oregon who was arrested after posting the following status on Facebook: “Drivin drunk…. classsic ;) but to whoever’s vehicle i hit i am sorry. :P”. One of his friends notified the police after seeing it. He was arrested and charged.

Police departments in Connecticut are also using social media for investigation and to communicate with the public.

“Imagine the law enforcement possibilities for this new machine.”

So how can the police do this? What about Fourth Amendment protections? The answer is pretty simple. Social media posts are largely public statements: the poster is not making them with any expectation of privacy. The Fourth Amendment protects people when they have a reasonable expectation of privacy. A person who is posting something for others to see is likely not exhibiting any expectation of privacy for that statement and even if he or she were, it would likely not be held to be reasonable. In the Oregon case, the poster was reported by two of his followers, so there was not even any government action that caught his post.

A few years ago in Wisconsin, a girl named Jenny began Facebook friending students at the University of Wisconsin-LaCrosse. Jenny was really a police officer who used her new friend status to find pictures of her underage friends drinking. The students were called down to the police station–not arrested–voluntarily went and were ticketed for underage possession of alcohol. These types of sting operations are a little dicier Fourth Amendment-wise because it is the police who initiated the contact, but again, the stung party was free to reject the investigator’s request. These and more elaborate police actions will likely be litigated more going forward but it will not likely lead to greater Fourth Amendment protection.

Facebook at least has some privacy protections compared to other social media. It does not take much effort to find YouTube videos of people engaging in illegal activity. When I was in college, before Facebook became the dominant photo sharing platform, people used other websites such as Webshots, Shutterfly and Worldisround to share their pictures, which tended to show college social activities of dubious legality. Although there were not full profiles to tie pictures to someone, they were completely open to anyone looking online. The point to remember is: you never know who is looking.

“Look, the suspect just checked into the 27th St. McDonalds on FourSquare.”

It also is not just law enforcement that is using social media. Opponents in civil cases often use social media to find things out about their opponents. This is very common in divorce cases. It is also common in personal injury cases–defense attorneys and insurance companies look for evidence of plaintiffs doing physical activities that would indicate their injuries are not severe. Employers may also be checking up on their employees. Due to the admission by a party opponent rule in evidence, it is not difficult to admit statements of a civil opponent into court.

For all of the concerns about government intrusion into privacy and the rapidly eroding Fourth Amendment, people are their own worst enemies. Individuals routinely waive their protections under Fourth and Fifth Amendments by volunteering information to the police and just about everyone else. I now emphasize to my clients that while they have the right to remain silent, that right does not protect what they willingly reveal to other people in conversations or online, and that they must be careful.

Look for DeMatteo Law on Facebook and Twitter. I assure you that all of our posts are legal.

Will You Go To (Integrated) Prom With Me?

The landmark case Brown v. Board of Education, 347 U.S. 483 (1954), ended legal school segregation more than six decades ago. This is an example of how the the law changed before individuals’ minds did. The civil rights movement and racial strife continued in the United States through the 1960′s and in many ways are still not over. Although there is no longer legal racial segregation, there are still instances of de facto segregation and private segregation, and individual racism.

Nettie and Nickie Hunt on the steps of the Supreme Court following the Brown decision.

One such example is the prom situation at Wilcox County High School in Georgia. The school and its activities are integrated. The school’s proms however, have not been integrated. After years of separate events, a group of students is pushing for an integrated prom. In 2013. The term prom may be a bit generous as the school does not sponsor an official prom. The events–a “white prom” and now, an integrated prom for all to attend–are private dances. They are sponsored and financed by private organizations and individuals. It is sad but sadly not surprising that this sort of thing still exists in our country.

A scene from Little Rock, AR in 1959. The law requires public places and activities to be integrated. Private events and places…not so much.

How is this legal? In short, civil rights law really only governs public places, actors and events. The 14th amendment prohibits legal segregation–most notably segregated schools and other public facilities. The Civil Rights Act of 1964, among other laws, prevents common carriers, businesses and other parts engaged in commerce from discriminating. Many states have their own laws against discrimination. Private parties (meaning both people and actual party-type parties) and events are often beyond the reach of the 14th amendment and civil rights laws and are even Constitutionally protected in different ways. The 1st amendment protects the rights of free expression and association. That is why groups that promote racist, sexist and other unpopular views are allowed to exist and publicly demonstrate. That is the way the law should work: as has been proven throughout history, unpopular ideas need the most protection.

In this case, the segregated prom is a private event in much the same way an invitation-only ball is. It cannot use public facilities, such as a school gym, but can rent a private space. The public school is not allowed to sponsor or promote it in any way. The integrated prom however was allowed to hang up signs because even though it is also private, is not discriminatory in nature.

Bayside always had an integrated prom.

Although we have come a long way from separate-but-equal and racial riots, there is still a long way to go. In Georgia and in the rest of the states. This group of students is going in the right direction.

Let’s Rock

Don’t call it a comeback, the blog has been here for years. It just hasn’t been updated in a long while. Now it is updated with a new name and a new design to go along with my new law practice. As I have publicized in person and across other media, I left Jazlowiecki & Jazlowiecki in early December 2012 to set up my own office in New Haven. It was just time to move on. Time to move on to new challenges and time to move on to new types of cases. I learned a lot in my nearly two years in Bristol; most importantly how to handle civil cases and the day to day workings of a busy law practice. I am still assisting J&J on a few matters and remain close with my former colleagues.

The first few months of solo practice have been exciting and challenging. I expect the future to at least be interesting. The purpose of this forum is to share those experiences and comment on legal issues…and probably some other things. The website for my office, DeMatteo Law, is located at

Call It The Tumbling Dice

Next time I have a criminal jury trial, one of my voir dire questions will be whether prospective jurors watch Nancy Grace.* That is one of the great things about the jury system–that both the prosecution and defense choose the fact-finders of their case.

*What’s with her label “Tot Mom”? Isn’t every woman who has a young child a “tot mom”? Nancy Grace sucks.

As fast as the not guilty verdicts could be tweeted there were clamors that the jury in the Casey Anthony trial were wrong. After thirty days of evidence and a day and a half of deliberations, the jury voted to acquit. For many it was a surprising result. To Nancy Grace, much of the media and the people that heard the evidence through them, the State of Florida proved beyond a reasonable doubt that Casey Anthony murdered her daughter. To the twelve jurors who decided this case–whose opinion was the only one that mattered–who were chosen by the State and the defense–who actually heard and saw all the evidence live in the courtroom–the State did not meet its burden.

From time to time you’ll hear lawyers on both sides of the aisle say that taking a case to a jury is akin to rolling the dice. I don’t like that expression because it undermines the concepts of fact-finding, advocacy and the law. There is risk for both sides in going to trial because, unlike a plea bargain, the outcome is not known in advance. Few if any cases are slam dunks.

As I did not watch the trial from the jury box nor discuss the evidence in the jury room, I don’t know what swung the case. What I do know is that the decision to convict or acquit was made by twelve people and that it had to be unanimous. Like everything, juries and jurors are imperfect. Still, the chances of having twelve terrible jurors is quite remote. One or two may slip in with a bias that cannot be detected in voir dire, but with both sides able to exercise challenges, and those sides composed of high-powered and experienced prosecutors and defenders in such a high-stakes case, the jury should not be as a whole biased one way or the other. Additionally, the chances of a jury having a Henry Fonda holdout persuade his eleven angry peers to switch to his position is slim as well.

The purpose of a trial is to determine whether a person accused of a crime committed it. To protect citizens from the power of the government, defendants are presumed innocent and must be proven guilty beyond a reasonable doubt. The burden is on the government. The facts and doubts are assessed by an impartial jury of citizens, not government employees or any other group (such as the media) which may come to the proceedings with an interest. The people in the media and the outlets themselves are not free of interests. The system has a plan for that as well: jurors are not supposed to read about the cases they are to decide. Again, while jurors may have biases that are not readily apparent, juries as a whole are still not nearly as flawed as those who are trying to sell advertising time or newspapers.

Interestingly enough, one of the biggest threats to jury reliability was present in the Anthony case and was put there by the law. Casey Anthony was charged with capital crimes and faced the death penalty if convicted. Death cases have two phases: guilt and penalty. After a person is convicted of a capital offense in the guilt phase, the same jury decides in the penalty phase whether the death penalty should be imposed. The wrinkle is that death penalty juries are composed of jurors who say that they can vote for execution. People who say in voir dire that they cannot vote death (for any reason) are dismissed for cause. The resulting juries therefore are called “death-qualified.” Studies have shown that supporters of the death penalty–a more conservative group–are more inclined to believe prosecutors and law enforcement personnel than defendants and their lawyers. When the prosecutors stepped up to the table, they were rolling loaded dice. Yet they still didn’t make their point.

It wasn’t the jury. It was the evidence. It almost always is.

“This low down bitchin’ got my poor feet a itchin’ / You know you know the duece is still wild”