We have been exploring the Bill of Rights since last week. We have made some important statements about these protections, particularly the First and Second Amendments in conjunction with the apparent efforts of the current administration and its supporters to at the very least, weaken those rights. While I do not want to ignore any of these Amendments, I do want to accelerate the process slightly so that we can get to a timely discussion on the Ninth and Tenth Amendments. The importance of which will be readily recognizable to anyone once the discussion begins.
This is not to imply that the following three amendments are not as equally critical to the existence of a free nation, but these amendments, which are for the most part, self explanatory and with the exception of the Eighth Amendment protection against cruel and unusual punishment, are rarely challenged.
I will say that the discussions we are to have on the Ninth and Tenth Amendments will overshadow these three only in their immediate connection to current flow of politics and to the efforts many States are now pursuing to reinforce these rights in the face of increasing pressure and interference by the Federal Government.
The Sixth Amendment
Right to Speedy Trial, Confrontation of Witnesses.
Ratified 12/15/1791.
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.”
It is a safe assumption that all Americans agree that the innocent should be free and the guilty should be punished. To insure justice to that end, the Sixth Amendment requires that all persons facing criminal prosecution do so in a fair and impartial way and that the trial that will determine a person’s guilt or innocence be held within a reasonable period of time.
In 1966 Sheppard v. Maxwell, 384 U.S. 333, determined that a public trial was not absolute and could be denied if the publicity associated with the trial would impact or prevent a fair and impartial verdict. While important, this case was related only to the right to a public trial and not a speedy one.
In many other justice systems innocence was not presumed and those facing charges also faced the reality that they were considered guilty until such time as their innocence could be established. The incarceration was harsh and the trials to establish guilt or innocence happened expressly at the convenience of the government, which could be years.
A measure to establish what is considered “speedy” had to be defined if this amendment were to have any meaning at all. Incredibly, it wasn’t until 1972 that a reasonable challenge had been made to the Supreme Court requiring that they rule on what measure should be used to determine if a person’s right to speedy trial had been violated. That case, Barker v. Wingo, 407 U.S. 514 alleged that the defendants right to a speedy trial had been violated and required a judgment from the court as to the exact definition of what would constitute a violation of law.
The court rendered a decision that the speed at which a trial should proceed must be determined by the facts in each individual case and did write four criteria with which the courts could base that determination on. Those four points are:
Delay:
1- Length of Delay: A delay of a year or more from the date on which the speedy trial right "attaches" (the date of arrest or indictment, whichever first occurs) was termed "presumptively prejudicial" (but the Court has never explicitly ruled that any absolute time limit applies.)
Reason for delay:
2- The prosecution may not excessively delay the trial for its own advantage, but a trial may be delayed to secure the presence of an absent witness or other practical considerations.
3- Time and manner in which the defendant has asserted his right: If a defendant acquiesces to the delay when it works to his own benefit, he cannot later claim that he has been unduly delayed.
4- Degree of prejudice to the defendant which the delay has caused.
The Supreme Court ruled against the petitioner, Willie Barker, in that he had previously waived his right to a speedy trial by agreeing to the continuances, and that the verdict was not prejudiced by the delays. However, the importance of this case is evident in the crafting of the four points that would determine the viability of future challenges to this Amendment.
The following year (1973), the Supreme Court heard the case of Strunk v. United States, 412 U.S. 434 in which these criteria were put to the test. The Supreme Court found in favor on the petitioner based on the four points established in Barker v. Wingo, and overturned a conviction obtained in his trial after it was determined that Strunk’s rights to a speedy trial had in fact been violated.
The Seventh Amendment
Trial by Jury in Civil Cases.
Ratified 12/15/1791.
“In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”
Even where a legal, rather than an monetary , issue is in question, the judge has a role in the determination of the verdict. The Supreme Court has held that judges may render an opinion on the facts in dispute provided that the jury actually determines the dispute after deliberation. A judge may also direct the jury to pay special attention to certain evidence and require the jury to answer certain questions relating to the case in addition to giving a verdict. If the judge deems the plaintiff's evidence insufficient, he may direct the jury to find in the defendant's favor. The jury may, however, return a verdict contrary to the judge's direction.
As common law provided, the judge has the power to set aside (or nullify) a jury verdict that he deemed was reached contrary to the evidence or the law but common law precluded the judge from himself entering a verdict. Where a judge has nullified a verdict on these grounds, only a new trial with a new jury would be the only permissible course.
The Eighth Amendment
Cruel and Unusual Punishment.
Ratified 12/15/1791.
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.:
The Eighth Amendment is almost identical to a provision in the English Bill of Rights of 1689, in which Parliament declared, "as their ancestors in like case have usually done...that excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
In 1947 the Supreme Court ruled that the Eighth Amendment protection against cruel and unusual punishment did, in fact apply to the individual States as well as to the Federal government.
While the 1878 Supreme Court did issue general prohibitions against a number of punishments including drawing and quartering, public dissecting, burning alive, or disemboweling, it would not be until 1972 (apparently a very busy year for the Supreme Court) that the court finally rendered a decision that spelled out, yet another four points that could be used to determine whether a punishment could be construed as cruel or unusual.
Those points are:
1- The "essential predicate" is "that a punishment must not by its severity be degrading to human dignity," especially torture.
2-"A severe punishment that is obviously inflicted in wholly arbitrary fashion.”
3- "A severe punishment that is clearly and totally rejected throughout society.”
4- "A severe punishment that is patently unnecessary.”
As far as the death penalty is concerned, the Supreme Court has had a mixed bag of decisions over the years. Some cases centered on the method used for execution and others in the actual imposition of a death penalty where the victim of the crime had not been killed such as in cases of rape.
The argument on the death penalty is a morally charged subject that is deeply contested where ever it is used. Instead of outlawing the practice entirely, The Supreme Court has instead, prohibited the use of language that would require a mandatory death sentence for certain crimes and has also required that special legal procedures be used to guarantee that capital crimes are pursued with great care and are scrupulously prosecuted. To meet this requirement, some States have opted to remove the duty of imposing the death sentence from the judge altogether and have instead, opted to hold two separate jury trials; one to determine guilt or innocence and upon conviction a second trial to determine the severity of the punishment ranging from imprisonment to execution.
I myself do not oppose the death penalty for certain crimes but we have all seen overzealous prosecutors that are more interested in a conviction than the truth. Case in point was the rape case involving the 2006 Duke University Lacrosse team. North Carolina District Attorney Mike Nifong ignored exculpatory evidence that would have cleared the Duke students of any wrongdoing and had continued to shape the actions of police and other persons involved in the case. Mr. Difong then aggressively pursued a false trial for what some have said was his goal to gain the notoriety that comes with winning a conviction in a highly publicized trial.
I would submit that some dangerous men just like Mike Nifong, still exist within the criminal justice system. With that in mind, only irrefutable physical evidence should allow us, a reasonable and civilized society, the certainty required to escort convicted criminals towards the death penalty regardless of the alleged crime. If we are to deprive one of their life as the supreme form of punishment, we must be deadly sure that there is no mistake in how that conviction was obtained. We must be sure that we are right by a factor of 200% or more or answer for our lack of diligence in a far higher court.
This is not to imply that the following three amendments are not as equally critical to the existence of a free nation, but these amendments, which are for the most part, self explanatory and with the exception of the Eighth Amendment protection against cruel and unusual punishment, are rarely challenged.
I will say that the discussions we are to have on the Ninth and Tenth Amendments will overshadow these three only in their immediate connection to current flow of politics and to the efforts many States are now pursuing to reinforce these rights in the face of increasing pressure and interference by the Federal Government.
The Sixth Amendment
Right to Speedy Trial, Confrontation of Witnesses.
Ratified 12/15/1791.
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.”
It is a safe assumption that all Americans agree that the innocent should be free and the guilty should be punished. To insure justice to that end, the Sixth Amendment requires that all persons facing criminal prosecution do so in a fair and impartial way and that the trial that will determine a person’s guilt or innocence be held within a reasonable period of time.
In 1966 Sheppard v. Maxwell, 384 U.S. 333, determined that a public trial was not absolute and could be denied if the publicity associated with the trial would impact or prevent a fair and impartial verdict. While important, this case was related only to the right to a public trial and not a speedy one.
In many other justice systems innocence was not presumed and those facing charges also faced the reality that they were considered guilty until such time as their innocence could be established. The incarceration was harsh and the trials to establish guilt or innocence happened expressly at the convenience of the government, which could be years.
A measure to establish what is considered “speedy” had to be defined if this amendment were to have any meaning at all. Incredibly, it wasn’t until 1972 that a reasonable challenge had been made to the Supreme Court requiring that they rule on what measure should be used to determine if a person’s right to speedy trial had been violated. That case, Barker v. Wingo, 407 U.S. 514 alleged that the defendants right to a speedy trial had been violated and required a judgment from the court as to the exact definition of what would constitute a violation of law.
The court rendered a decision that the speed at which a trial should proceed must be determined by the facts in each individual case and did write four criteria with which the courts could base that determination on. Those four points are:
Delay:
1- Length of Delay: A delay of a year or more from the date on which the speedy trial right "attaches" (the date of arrest or indictment, whichever first occurs) was termed "presumptively prejudicial" (but the Court has never explicitly ruled that any absolute time limit applies.)
Reason for delay:
2- The prosecution may not excessively delay the trial for its own advantage, but a trial may be delayed to secure the presence of an absent witness or other practical considerations.
3- Time and manner in which the defendant has asserted his right: If a defendant acquiesces to the delay when it works to his own benefit, he cannot later claim that he has been unduly delayed.
4- Degree of prejudice to the defendant which the delay has caused.
The Supreme Court ruled against the petitioner, Willie Barker, in that he had previously waived his right to a speedy trial by agreeing to the continuances, and that the verdict was not prejudiced by the delays. However, the importance of this case is evident in the crafting of the four points that would determine the viability of future challenges to this Amendment.
The following year (1973), the Supreme Court heard the case of Strunk v. United States, 412 U.S. 434 in which these criteria were put to the test. The Supreme Court found in favor on the petitioner based on the four points established in Barker v. Wingo, and overturned a conviction obtained in his trial after it was determined that Strunk’s rights to a speedy trial had in fact been violated.
The Seventh Amendment
Trial by Jury in Civil Cases.
Ratified 12/15/1791.
“In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”
Even where a legal, rather than an monetary , issue is in question, the judge has a role in the determination of the verdict. The Supreme Court has held that judges may render an opinion on the facts in dispute provided that the jury actually determines the dispute after deliberation. A judge may also direct the jury to pay special attention to certain evidence and require the jury to answer certain questions relating to the case in addition to giving a verdict. If the judge deems the plaintiff's evidence insufficient, he may direct the jury to find in the defendant's favor. The jury may, however, return a verdict contrary to the judge's direction.
As common law provided, the judge has the power to set aside (or nullify) a jury verdict that he deemed was reached contrary to the evidence or the law but common law precluded the judge from himself entering a verdict. Where a judge has nullified a verdict on these grounds, only a new trial with a new jury would be the only permissible course.
The Eighth Amendment
Cruel and Unusual Punishment.
Ratified 12/15/1791.
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.:
The Eighth Amendment is almost identical to a provision in the English Bill of Rights of 1689, in which Parliament declared, "as their ancestors in like case have usually done...that excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
In 1947 the Supreme Court ruled that the Eighth Amendment protection against cruel and unusual punishment did, in fact apply to the individual States as well as to the Federal government.
While the 1878 Supreme Court did issue general prohibitions against a number of punishments including drawing and quartering, public dissecting, burning alive, or disemboweling, it would not be until 1972 (apparently a very busy year for the Supreme Court) that the court finally rendered a decision that spelled out, yet another four points that could be used to determine whether a punishment could be construed as cruel or unusual.
Those points are:
1- The "essential predicate" is "that a punishment must not by its severity be degrading to human dignity," especially torture.
2-"A severe punishment that is obviously inflicted in wholly arbitrary fashion.”
3- "A severe punishment that is clearly and totally rejected throughout society.”
4- "A severe punishment that is patently unnecessary.”
As far as the death penalty is concerned, the Supreme Court has had a mixed bag of decisions over the years. Some cases centered on the method used for execution and others in the actual imposition of a death penalty where the victim of the crime had not been killed such as in cases of rape.
The argument on the death penalty is a morally charged subject that is deeply contested where ever it is used. Instead of outlawing the practice entirely, The Supreme Court has instead, prohibited the use of language that would require a mandatory death sentence for certain crimes and has also required that special legal procedures be used to guarantee that capital crimes are pursued with great care and are scrupulously prosecuted. To meet this requirement, some States have opted to remove the duty of imposing the death sentence from the judge altogether and have instead, opted to hold two separate jury trials; one to determine guilt or innocence and upon conviction a second trial to determine the severity of the punishment ranging from imprisonment to execution.
I myself do not oppose the death penalty for certain crimes but we have all seen overzealous prosecutors that are more interested in a conviction than the truth. Case in point was the rape case involving the 2006 Duke University Lacrosse team. North Carolina District Attorney Mike Nifong ignored exculpatory evidence that would have cleared the Duke students of any wrongdoing and had continued to shape the actions of police and other persons involved in the case. Mr. Difong then aggressively pursued a false trial for what some have said was his goal to gain the notoriety that comes with winning a conviction in a highly publicized trial.
I would submit that some dangerous men just like Mike Nifong, still exist within the criminal justice system. With that in mind, only irrefutable physical evidence should allow us, a reasonable and civilized society, the certainty required to escort convicted criminals towards the death penalty regardless of the alleged crime. If we are to deprive one of their life as the supreme form of punishment, we must be deadly sure that there is no mistake in how that conviction was obtained. We must be sure that we are right by a factor of 200% or more or answer for our lack of diligence in a far higher court.
Paul
No comments:
Post a Comment