Assignment 16 - Right to Trial by Jury - Jury Nullification - Peremptory Challenges :

The wisdom of our sages and the blood of our heroes has been devoted to the attainment of trial by jury. It should be the creed of our political faith.

Thomas Jefferson, First Inaugural Address (1801)

This is a quickie. The subject of these readings was another of the Bill of Rights provisions that has been held to apply in state court criminal proceedings. This time it was the Sixth Amendment right to trial by an impartial jury. The USSC in Duncan v. Louisiana, 391 U.S. 145 (1968) held for the first time that the right to a jury trial did apply in state court to everything but "petty offenses." Baldwin v. New York, 399 U.S. 66 (1970) defined a petty offense to be any crime that is punishable by six months or less. So there is a constitutional line drawn between serious and non-serious offenses re the right to a jury trial. If the permissible punishment is six months or less, the offense is presumed to be petty with regard to the Sixth Amendment right to a jury trial in state courts. Apparently, this right to a jury trial in criminal cases does not apply to the adjudicative phase of a juvenile delinquency trial. It seems that the accused has the right to waive his Sixth Amendment right to a jury trial and have the court (judge) act as the trier of fact. Also, I notice that the USSC says that the Sixth Amendment right to a jury trial does not include the right to have a jury determine punishment, only guilt.See Spaziano v. Florida 468 U.S. 447 (1984). Of course, Texas is one of those few jurisdictions, eight or ten I think, that allow the jury the additional power of assessing punishment in ordinary felonies and jail- time misdemeanors when the defendant elects to have the jury determine punishment. See Art. 37.07 TCCP. Indeed, when the prosecution seeks the death penalty, the accused cannot waive trial by jury on guilt and punishment. See Arts. 1.13, 1.14 TCCP.

There's also some stuff that I need to read about the size of the jury under the Sixth and whether and when the verdict must be unanimous under the Sixth, etc. The Federal Rules require federal juries to have twelve jurors. But, Texas uses only six in jail time misdemeanor courts, e.g., County Criminal Courts at Law like the ones at the local criminal courthouse, and fineable offense only courts,e.g., justice of the peace and municipal courts, while it has twelve in the pen time courts, e.g., district courts. The USSC seems to allow the states to experiment somewhat as to jury size. Look at Williams v. Florida, 399 U.S. 78 (1970) and Ballew v. Georgia, 435 U.S. 223 (1978) which hold that a twelve-person jury is not required by the Sixth Amendment. The case on Sixth Amendment unanimity is Apodaca v. Oregon, 406 U.S. 404 (1972)holding that a twelve-person state court jury does not have to be unanimous. See also Schad v. Arizona, 501 U.S. 624 (1991). So the USSC doesn't require unanimity in a twelve-person jury, but it does require it in a nonpetty crime if the state uses a six-person jury. See Burch v. Louisiana, 441 U.S. 130 (1979) and Brown v. Louisiana, 447 U.S. 323 (1980). I need to check the Texas Constitution in the back of the Texas Penal Code book, because I think the Texas Constitution gives you a greater right to a jury trial and requires a unanimous verdict for conviction in criminal cases (including traffic court, which obviously involves petty offenses). If so, this is another example of the state constitution, e.g., Texas, giving one a greater right than the Bill of Rights of the United States (federal) Constitution. I got an idea of what its like to be a juror by reading the handbook that the federal government supplies to all jurors in federal cases and the local Harris County juror handbook.

We didn't touch on it in a lot in class because the prof was waxing about the way some of the countries of Western Europe handle the adjudication of guilt issue, but I'm interested in this concept ofjury nullification. I'm concerned that the American jury has the raw power to disregard the law and do whatever the jurors want to do, even though the jurors are instructed by the judge that they are to follow the law contained in the court's instructions to them. This seems to flow from the fact that there is no appeal from an acquittal in a court of competent jurisdiction and from the fact that the verdict of the jury is general ("guilty" or "not guilty" or "not guilty by reason of insanity") without any reasons having to be given for it. I can see some good and some bad in such a power. The case in Assignment 16, Dougherty, makes it clear that the federal courts don't think it is a such a good idea to tell the jury of their power to ignore the law and acquit. Most states follow the federal approach and also don't allow defense lawyers to argue this awesome power. Nullification seems to be a power the system doesn't want to encourage the jurors to exercise. I can see why we wouldn't want to have an ad hoc jury system, which is what we would have if jurors regularly substituted their ideas of what the law should be for what the legislature says it is.

I have to admit that the stuff in the casebook about the way other countries handle the criminal process is something I didn't know. Actually, I thought they had juries in most of Western Europe and a lot of other places. I find that even England, where we got the idea of the jury from, has done away with juries in civil cases and also in what we would call misdemeanor offenses (the crimes they try in their so-called Magistrates Courts).

The USSC has held that the Sixth Amendment requires that the jury be drawn from a group that reflects a fair cross-section of the community in federal and state courts. The defense has the burden of showing a systematic exclusion of a particular group in the community. Racial groups and women constitute such groups that may be subjected to improper exclusion.

Also, there is a violation of the 14th Amendment right to equal protection of the law when there is an intentional exclusion of members of certain classes, e.g., racial and gender based, from juries. The clause prevents purposeful discrimination. We have the Batson v. Kentucky, 476 U.S. 79 (1986) case and its progeny which held that the right to equal protection is violated when a peremptory challenge is used to exclude a prospective juror because of race. This is one of those errors of a constitutional dimension that requires a reversal without any harmless error evaluation.

If you are interested in what the professor said about mixed panels, look at 74 Boston Univ. Law Review 777 (1994) and at Vidmar, World Jury Systems, Oxford Univ. Press (2000). For more info on the issue of whether a felony conviction should bar a person from ever serving on a jury, see Kalt, The Exclusion of Felons from Jury Service, 53 Amer. Univ. L. Rev. 65 (2003). If you are interested in some of the techniques used in picking a jury and much more information regarding the Batson procedure see the CCJA page on Jury Selection in Criminal Cases. See also the ABA Standards: Trial by Jury (1994).

Sans souci.

 

Assignment Seventeen - Prosecution's Burden of Proof - Inferences and Presumptions - Confrontation and Cross-Examination of Witnesses - Right to Remain Silent (Privilege Against Self-Incrimination)

This session winds up the three class breathing-space during which we have been looking at how the Bill of Rights was used in connection with the Fourteenth Amendment's Due Process Clause to create a new framework for the investigation and prosecution of crime in state court criminal trials. There is no Dressler reading for these past three classes. So, the casebook and the professor's notes in Guns are all I've had to read to get a handle on the constitutional due process issues. The rights, rules, and cases are laid out rather clearly in his notes along with some charts and forms and provocative questions. I'll bet he might ask us some objective questions based on this reading, but he has said  that all of his comparative notes that contrast our criminal justice system to those of other countries is not of major concern for exam purposes. Still, it was kind of interesting to see how other countries set up their criminal justice processes, particularly with regard the role of lay juries and the judge.

The casebook  for this session deals with the issues of the burden of proof, the role of presumptions in alleviating the prosecutor's burden of proof, the right to confront witnesses (Sixth Amendment), the privilege not to be compelled to be a witness against yourself in a criminal case (Fifth Amendment), and the exclusionary rule that excludes evidence that has been illegally seized, e.g., by an unreasonable or warrantless search in violation of the Fourth Amendment.

The fundamental principle of a fair criminal trial that requires the prosecution to prove each element of the alleged crime beyond a reasonable doubt (PBARD) (Victor v. Nebraska, 511 U.S. 1 (1994)) is part of the concept of due process of law contained in the Fifth and Fourteenth Amendments.  So, even though the Bill of Rights does not expressly mention the burden of proof in a criminal case, the USSC read the PBARD requirement into the concept of due process of law. This lets me know that due process may go beyond the expressly enumerated rights in the Bill of Rights. See In re Winship, 397 U.S. 358 (1970). See also section 1.12 MPC. There doesn't seem to be any set universally accepted standard definition of what a reasonable doubt is. For a number of years, the Texas Court of Criminal Appeals had a required definition that had to be given in every case. Interestingly, the highly pro-prosecution court recently did away with its former required definition; the case which accomplished this dramatic change was Paulson v. State, 28 S.W.3d 570 (Tex. Crim. App.2000). [We just learned how to get into Westlaw and Lexis in LR&W; so, I'm gonna look this one up. When I graduate and can't afford to pay all these fee based research sites, it's comforting to know that there are a lot of free sites like Findlaw - sponsored, I must in good conscience say, by West-Thomson.]

The Apprendi v. New Jersey, 530 U.S. 466 (2000) case was a bombshell. It held that, "..other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt." This means that this fact, maybe a hate crime aspect that increases the punishment, will be treated as an element of the crime. Whether the Apprendi rule covers increases in the  minimum penalty seems to be answered in the negative. See Harris v. United States, 536 U.S. 545 (2002). Ring v. Arizona, 536 U.S.584 (2002) held that statutory aggravating circumstances necessary for a death sentence are akin to an element of the offense and must be proven beyond a reasonable doubt and be decided by a jury.  I found  that the Timothy Ring case is documented by court tv when I typed "ring" in the search window.  

The Mullaney v. Wilbur, 421 U.S. 684 (1975) case in our book seemed to hold that the prosecution had to disprove all defenses beyond a reasonable doubt, as well as the customary  requirement of proving all the elements of the crime beyond a reasonable doubt. The USSC cleared things up a bit in Patterson v. New York, 432 U.S.197 (1977) when it construed Mullaney narrowly, by making it clear that it is constitutional for states to impose the burden of proof (persuasion) on the defendant to prove some defenses. [So, our Texas approach to affirmative defenses, where the defense has the burden of persuasion by a preponderance of the evidence, seems to be okay from the standpoint of the constitutional allocation of the burden of proof.]

The constitutional requirement that the government must prove the elements of the offense beyond a reasonable doubt places limits on the use of presumptions that lessen the effort the prosecution must put forth to establish a fact via a presumption. Dressler explains the types of presumptions. i.e.,  permissible, mandatory, rebuttable, and irrebuttable. Permissible inferences won't violate due process as long as they are reasonable. But mandatory presumptions, either rebuttable or irrebuttable, do seem to violate due process in that they too easily dispense with the requirement of proof beyond a reasonable doubt.

We talked about the discrete elements of a trial - they're listed chronologically in prof's notes (Guns book on reserve). The Bill of Rights (BOR) says in the Fifth Amendment that you can't compel an accused to testify. Even though the BOR doesn't expressly say an accused has the right to voluntarily testify in his own behalf, the USSC has said that the right is implicit in the concept of due process as a corollary of the right not to be compelled to testify. The privilege against compulsory self-incrimination of the Fifth Amendment applies to state court criminal proceedings, per the USSC in Malloy v. Hogan, 378 U.S. 1 (1964), another case of selective incorporation. In Griffin V. California, 380 U.S. 609 (1965) the USSC held that the Fifth Amendment privilege prevents the prosecution from commenting in jury  argument on the defendant's invocation of his or her right to remain silent at trial.

The Sixth Amendment right to compulsory process (the right to subpoena witnesses) is also applied to state court criminal proceedings in Washington v. Texas, 388 U.S. 14 (1967), again, another of those selective incorporation cases. Of course, there are some limitations, e.g., the subpoena power does not allow one to obtain privileged material.

Confrontation with the witnesses against one is a Sixth Amendment right that the accused has with regard to evidence presented against him. Like many of the other rights in the BOR, it applies through the Due Process Clause to defendants in state court criminal proceedings as well as in federal criminal cases. This same right is interpreted to implicitly afford the defense the right to cross-examine witnesses who appear against the accused.

The Mapp v. Ohio, 367 U.S. 643 (1961) held that the Fourth Amendment protection against unlawful search and seizure applied to the states also. It created the so-called "exclusionary rule" that means that evidence that is unlawfully seized in violation of the Fourth Amendment must be suppressed and excluded from evidence. [This is a bit like the objective entrapment test in its effect, because even though the defendant may be guilty of unlawfully possessing or selling or delivering contraband, he can't be convicted because the police overstepped his rights. The exclusionary rule is purportedly there to keep the police in line.]

[ The prof talked a bit about  the Texas examining trial under Art. 16.01 CCP and the way a Texas prosecutor can avoid an examining trial by obtaining a "hurry-up" indictment from the grand jury. The Texas "examining trial" is equivalent to the federal "preliminary hearing." Both are antecedents to consideration of the case by the grand jury.  Some states, e.g., California,  use the preliminary hearing as an alternative to a grand jury in felony cases. If I remember that's what happened with the ubiquitous  "OJ."

One of the guys in our class asked the professor whether a prosecutor had a duty to present exculpatory evidence to the grand jury.  The prof said that the USSC doesn't require it . See U.S. v. Williams, 504 US 36 (1992). But, he said some state jurisdictions do require it. See Nev. Rev. Stat. Sec. 172.145(2); Sheriff, Clark County v. Frank, 734 P2d 1241 (Nev. 1987); Johnson v. Superior Court of San Joaquin County, 539 P2d 792 (Cal. 1975). I thought that grand juries in theory were supposed to serve as the both a shield and a sword. If they are so totally under the thumb and control of prosecutors, it's hard for me to see how they can be anything but a sword? At any rate, the prosecutors seem to call the shots. The prof's notes indicated that the average time spent by Harris County grand juries in reviewing each felony case for indictment is + or - 3 minutes.]

Populus iamdudum defutatus! (The people have been getting screwed long enough!)

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Assignment 15 - Right to Counsel - Prosecutorial Discretion - Preliminary Hearing - Grand Jury -  Vindictive Prosecution

Put down that slingblade (some folks call it a kaiser blade) and listen to me!  Just kidding ... one of my Weird Al Yankovich... or is it Billy Bob Thornton flashbacks. Hey, a couple of my classmates have complained to me about the prof shutting down my rumbling after its been up for a couple of weeks. I think he's trying to encourage people to read and prepare as we go along rather than waiting until the end of the semester to look at my notes and his Bullets. Personally, it works better for me to keep up with each class, rather than scrambling a couple of weeks before exams. The video advice from the top students from his past classes made it clear that their secret of success in learning and making good grades is preparation as you go. 

The first thing is, I was thinking back to Assignment Twelve about the Texas procedure that lets a defendant get some proof (factual and expert) of the battered spouse or child into evidence.  Just in case this is on the test, I looked up Art. 38.36 (b) CCP that says the accused could show that s/he had been a victim of acts of "family violence" as defined by Sec. 71.01 of the Family Code.  I started wondering what that definition was. So, I also looked it up. It says that "family violence" means: "An act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself."

CAUSATION PROBLEMS: That one page causation handout the prof gave us a couple of sessions back that had the five questions on causation has stuck in my mind. I tried to get him to give me a private explanation, but he seems to think it's not fair to give certain students info that's not given to all.  He claimed he'd put some answers on the web site

Bottom line re causation problems: I've had to try to figure this causation thing out myself. Here's what I came up with. First, the questions are sorta like trick questions. If you thought they were asking what crime X and/or D would be guilty of, read the problem again. The questions ask only about causation. Factual (actual) cause is just the "but-for" test. The C/L, MPC Sec. 2.03, and TPC Sec. 6.04 all include a "but-for" test of causation as part of the equation. There is also legal (proximate) causation which basically determines which of the "but-for" causes are sufficient to impose accountability for the resulting harm. It seems that a person or event must be an factual (actual) cause to be a legal (proximate) cause, but can be a factual (actual) cause without being the legal (proximate) cause. This idea of legal cause is just a way of saying that some "but-for" causes may be too remote to qualify as legal cause. At C/L "proximate" seems to mean foreseeable.

• On question # 1, assuming that X and D are acting separately and not in a complicitous relationship, can two people cause one death under the law? Yeah, if D accelerates the process of V's death that was initiated by X. Both X and D appear to be the actual (factual) cause of V's death. Each caused V to die sooner than he otherwise would. "But-for" the conduct of each, V would not have died when he did. So, it then becomes an issue of whether the escape clauses (MPC remoteness, TPC concurrent cause, C/L proximate cause) break the chain of causation. That's a judgment call. Hard and fast rules that make it 100% clear where you come out on legal cause just don't exist - fairness and remoteness seem to play a big part in the equation. There is no foolproof way of determining legal (proximate) cause. Just look at TPC Sec. 6.04. It's brief, but hardly clear as a cutting edge formula.
  

• As to question #2, it's a trick question in a way. It doesn't matter if D unintentionally shoots V, because the question is just about causation, not at all about mens rea. (Get it?) Of course, D may be less culpable than he would be if he acted intentionally, but the causation issue in #1 and #2 are the same. 
  

• The way I read question #3, it seems that only X is the actual, factual, "but-for" cause of V's death. Nothing D did shortened V's life. This doesn't mean D couldn't be liable for some offense. If, for example, D specifically intended to kill V, he might be liable for attempted murder. He also could be guilty of battery (assault), but D did not cause V's death. X did.
  

• In question #4, if you apply the "but-for" test, it appears that both X and D are the actual, factual causes of V's death. "But-for" the conduct of each, V would not have died when he did.
  

• Question #5 is the toughest one for me. The problem is that the "but-for" test doesn't work here. Since V was going to die at the same time from both of the mortal blows delivered simultaneously, X and D could each claim that his individual blow did not hasten V's death. Yet, to say there is no causation seems unfair, because each of them would walk for the substantive homicide crime. Of course, if the mens rea is there, they each may be guilty of attempted murder. But both of these guys wanted V dead, and each got his desire. It seems like fairness would dictate that they  should both be liable for causing the death. The TPC suggests that there can be but-for  "concurrent causes," each of which might be a sufficient factual/legal cause operating concurrently with one another, so long as each of which is sufficient to product the result. But there is still the problem of the TPC  saying " if the result would not have occurred 'but for' the actor's conduct."  In this question #5, it looks like either or these standing alone would cause the result (death of V) to occur when it did without the other. So, how can we say that "but- for" X's conduct the death of V wouldn't have occurred when it did? Same thing with D. I just don't see how you get past the "but-for" test in nailing either X or D for causing the death. Neither X nor D, standing alone, accelerated V's death. I'll have to see if Dressler has an answer to this one. His chapter on causation has a lot of good hypothetical examples. One thing about causation, even when there is a statutory formula a la the MPC and TPC, there is no hard and fast precise test that spits out a clear standard answer in the hairy problem scenarios.
  

• Question #6 is the one about D1 and D2 independently delivering mortal wounds to V , with V dying more quickly from the combined wounds. In this scenario, it seems like each, D1 and D2, is factually and legally responsible for causing V's death, because each hastened V's death, and V would not have died when he did but for each wound.
  

• Question # 7 is the one about D1 delivering the mortal blow to V, but before V can die, D2 comes along and acting independently finishes V off with a brain shot that kills V instantly, irrespective of the mortal wound inflicted by D1. In that one, it looks to me like D2 is the factual and legal cause of V's death because it is what caused V to die when and where he did. D2 seems like an independent intervening cause that would break the chain of causation. If so, D1 would still seem to be liable for the inchoate crime of attempted murder of V (assuming that D1 had the necessary mens rea, i.e., intent to kill V).
  

That  mental exercise was overly demanding on my brain unit. I must admit that I resist any method of teaching that forces me out of the comfortable role of being a passive receptacle of information that I get from just hearing a professor a one-sided doctrinal lecture. I've noticed that these big 1L law school classes involve more dialogue vis a vis monologue than my undergrad courses. They say, when you become a lawyer, you get paid for speaking and writing. Apparently, we are supposed to start developing these skills in the first year by being asked to participate in class rather than just listening and memorizing.

RIGHT TO COUNSEL -  [Before I get started on what the class was about, I want to wax eloquently on this issue of right to counsel. I'm of the opinion that certain very sensitive aspects of the pretrial criminal investigation and adversary trial, such as: (1) the danger of eyewitness misidentification, (2) the use of government informants who are rewarded for their testimony by receiving property or sentencing concessions or immunity, (3) the danger of involuntary confessions being obtained by fraud, trickery, threat or use of illegal force, (4) the potential misuse of so-called scientific or expert evidence, (5) the existence of police perjury, make it essential that the person accused of any serious crime be allowed to have a lawyer at trial. Interestingly, as one looks back at the history of the criminal trial in common law England, one sees that it was not until the 1730's that the English allowed the accused felon to have a lawyer present at trial to question witnesses. Criminal defense lawyers were totally banned from the trial court.  Strangely enough, accused misdemeanants were allowed to employ trial counsel. Of course, even when there was a right to trial counsel, there was no right to a free court-appointed lawyer.  Until the 1730's, the felony trial was something of a shouting match between the prosecutor, not a public prosecutor as we know it but simply the private person who brought the charge, and the defendant. The judge refereed the confrontation. In those earlier trials, the prosecutor and his/her witnesses were sworn; the defense witnesses and the defendant were not allowed to testify under oath.  Felony trials typically lasted for 30 minutes to 2 hours. A single court might conduct ten trials in a single day. Serious felonies carried the death penalty. Old Bailey, the criminal court for central London, was partially open air, in part because of the stench arising from the indigent prisoners who, pending trial, had been held under intolerable sanitary conditions in the adjacent Newgate jail. Conditions of pretrial confinement were so dreadful that lots of defendants went belly up before they could be tried. JEEZ! Can you imagine this system of sixteenth and seventeenth century common law criminal justice? Note: There is a splendid web site that describes the proceedings at THE OLD BAILEY during the period from 1674 to 1834; I strongly advise everyone in Professor Moses' criminal law class to take a couple of hours and go back in time to the origin of the adversary system of criminal justice - our roots - and wander through the records of the Old Bailey. ]    

In this class session, we consider the Sixth Amendment right to assistance of counsel and a lot of other personal freedoms or protections against the government that were created by the founding fathers when the Bill of Rights was ratified in 1791. The focus of our discussion and reading seems to be on the Warren court's selective extension (incorporation) in the 1960's of many of these federal rights to defendants in state court prosecutions by means of the 14th Amendment's Due Process Clause. There are a whole line of cases that reflect this device of "selective incorporation," e.g., Fourth Amendment - Mapp v.Ohio, 367 U.S. 643 1961) (unreasonable search and seizure); Fifth Amendment - Malloy v. Hogan, 378 U.S. 1 (1964) (privilege vs. compulsory self-incrimination) & Benton v. Maryland, 395 U.S. 784 (1969) (prohibition vs. double jeopardy); Sixth Amendment - Duncan v. Louisiana, 391 U.S. 145 (1968) (right to a jury trial) & In re Oliver, 333 U.S. 257 (1948) (right to a public trial) & Klopfer v. North Carolina, 386 U.S. 213 (1967) (right to a speedy trial) & Pointer v. Texas, 380 U.S. 400 (1965) (right to confront witnesses against oneself) & Washington v. Texas, 388 U.S. 213 (1967) (right to compulsory process for obtaining witnesses); Eighth Amendment - Robinson v. California, 370 U.S. 660 (1962) (prohibition vs. cruel and unusual punishment).  

The Gideon v. Wainwright, 372 U.S. 335 (1963) case is the centerpiece of the right to counsel at trial table. [Note: Clarence Earl Gideon had pretty good representation in the USSC; the USSC appointed future justice Abe Fortas , a Lyndon Johnson crony, to represent Gideon in the Supreme Court case.] In Gideon Justice Hugo Black said, "The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trial in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law." It extended the Sixth Amendment right to counsel to indigent persons (1) charged with felonies in state courts. See also, Argersinger v. Hamlin, 407 U.S. 25 (1972), Scott v. Illinois, 440 U.S. 367 (1979), and Alabama v. Shelton, 535 U.S. 654 (2002). Unfortunately, later cases made it difficult overcome the assumption of effectiveness and overturn the conviction for ineffectiveness of court-appointed counsel. See United States v. Cronic, 466 U.S. 648 (1984) and Strickland v. Washington, 466 U.S. 668 (1984) for the rule that trial counsel's performance must be shown by the defendant  to have so undermined the adversary process that the trial cannot be relied upon as having produced a just result and that but for counsel's ineffectiveness there is a reasonable probability that the verdict would have been different. Note that it is difficult to get a reversal under the Strickland test.  The accused  has the right to his retained counsel of choice. See United States v. Gonzalez-Lopez,  __U.S. __, 126 S. Ct. 2557 (2006) holding that without any other showing of prejudice the trial court reversibly erred in denying the accused the right to have pro hac vice out-of-state counsel. On the issue of whether one has a right to act as his own trial counsel, Faretta v. California, 422 U.S. 806 (1975) said that there is also an unwritten Sixth Amendment right to to defend yourself. In Faretta cases, the trial judge does have the power to appoint "stand-by counsel." McKaskle v. Wiggins, 465 U.S. 168 (1984).

I should also mention the line of cases from the USSC that discuss the right of counsel on appeal. They include Douglas v. California, 372 U.S. 353 (1963) providing the indigent, under the equal protection clause of the Fourteenth Amendment, with the right to counsel in one appeal from the trial court to the next level when such appeal is available to non-indigents. See also, Entsminger v. Iowa, 386 U.S. 748 (1967); Anders v. California, 386 U.S. 738 (1967) detailing the duty of court-appointed counsel on appeal, particularly when the appeal is deemed frivolous by counsel - Re Anders, see also Jones v. Barnes, 463 U.S. 745 (1983), Evitts v. Lucey, 469 U.S. 387 (1985),  Smith v. Murray, 477 U.S. 527 (1986),  Pennsylvania v. Finley, 481 U.S. 551 (1987), McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429 (1988), Austin v. United States, 513 U.S. 5 (Per curiam 1994), Smith v. Robbins, 528 U.S. 259 (2000); Swenson v. Bosler, 386 U.S. 258 (1967) indicating that the indigent does waive this right by failing to request it; Ross v. Moffitt, 417 U.S. 600 (1974) holding that the right to a free lawyer does not extend beyond the first appeal as a matter of right and does not apply to appeals from the state court to the USSC for a writ of certiorari; Martinez v. California, 528 U.S. 152 (2000) holding that appellate courts have the right to require that appellants proceed through counsel; Roe v. Flores-Ortega, 528 U.S. 470 (2000); Halbert v. Michigan, 545 U.S. 605 (2005) holding that the Douglas v. California right to counsel on appeal applies to indigents seeking first-tier discretionary appellate review of nolo and guilty pleas.

A couple of recent USSC right to counsel cases bear mention. In Alabama v. Shelton, 122 S.Ct. 1764 (2002), the USSC held that there is a right to counsel in misdemeanors where the sentence is suspended, e.g., a probated sentence where sentence is adjudicated but execution of if is suspended. (Apparently, this rule may not apply to deferred adjudication probation where both imposition and execution of sentence is deferred.) The prof said that Shelton will probably be retroactive to prior misdemeanor cases. See Berry v. City of Cincinnati, 414 U.S. 29 (1973).  It looks like Texas law, Art. 26.04 CCP, already gives indigent misdemeanants charged with jail-time misdemeanors the right to free lawyer.  See Art. 1.051 CCP. Also, in Martinez v. Court of Appeal, 528 U.S. 152 (2000), the USSC held that there is no right of self-representation at the appellate stage. A Texas case caught my eye. In Texas, death row inmates who are attacking their convictions by post-conviction habeas corpus are not entitled to effective assistance of counsel, only competent counsel. See Ex parte Graves, 70 S.W.3d 103 (Tex. Crim. App. 2002). [There's a great book about Clarence Gideon's quest for counsel. See Lewis, Anthony, Gideon's Trumpet, New York, Random House (1964), written by an acclaimed NY Times reporter. Of course, Gideon was the genesis for the emphasis on delivery of indigent defense.] If you want to read the latest on the subject of ineffective assistance of counsel, I recommend this bibliography of articles in the popular media, journals, books and reports; many of the current media (newspaper articles) resources are hyperlinked.

[One thing that bothers me in light of the current fear of terrorist attack -  If we give up these individual rights that other generations have fought to protect because we are afraid of the remnants of a gang of thugs armed with $4 box-cutters and 19 plane tickets and how they may soon start trying to kill us randomly with NBC (nuclear, biological, chemical), will we be losing more than we gain? In the many years since 9/11 there has not been a single attack on U.S. soil that I know of. One idiot with a room temperature IQ was caught with a shoe bomb on a transatlantic flight. Common sense would suggest that many small attacks could have been made. In light of the current "preventive" war instigated by the U.S. against Iraq,  there will probably be future attacks. But I still wonder why so many folks are readily willing to give up the right of personal freedom that was gained by the blood of so many patriots in days gone by. It's a conundrum that my thought process can't unravel. It's strange how, as a student of criminal law, I feel more like a potential murder victim than I did before 9/11 and the subsequent "war on terror." Even weirder, could I ever be a criminal defense trial lawyer for a terrorist like the moronic "shoe bomber" or the cold-blooded "D.C. (Washington) sniper" or others yet to come and assert these individual Bill of Rights protections for him or her? Recently, I got an e-mail with this semi-poetic statement appended:

When they took the Fourth Amendment,

I was quiet because I didn't deal drugs.

When they took the Fifth Amendment,

I was quiet because I was innocent.

When they took the Second Amendment,

I was quiet because I didn't own a gun.

Now they've taken the First Amendment,

and I can say nothing about it."]

Dressler doesn't have much helpful information for this and the next two assignments. The professor's notes in Guns helped me get a better grasp on the right to counsel and the grand jury. There are some obvious T/F and M/C questions in these readings because the USSC case law is pretty "bright line" specific on the extension of each of these fundamental individual rights. I did hear the professor tell one of the the students after class to look at Art. 26.04 CCP re the right of the indigent Texas misdemeanant to a free lawyer. The prof said that  Art. 26.04 TCCP gives the accused indigent state misdemeanant a broader right to a free lawyer than the USSC does under the Sixth Amendment. It also appears, from looking at Art. 26.04, effective on 1/1/2002, that the Texas Legislature has done some band-aid therapy on the court-appointed attorney mess that we have had here in Texas, particularly in Harris County. [Apparently our longtime local system of judges appointing "go-along to get-along" crony defense attorneys was something of a nation-wide laughing stock to lawyers and the public in other parts of the country, where there are efficiently organized public defender offices. See Burdine v. Johnson, 262 F.3d 336 (5th Cir 2001) (en banc). For many years the indigent's right to counsel allowed Texas trial court judges to play favorites among would-be defenders, as to who gets the court appointments; these same judges can also receive direct political contributions ($$$) from the very lawyers they appoint and pay (+- $18M per annum in Harris County) to represent indigents. I wonder if some Texas judges are sometimes forced to cleave to that which is politically expedient, rather than that which seems right and beyond all reproach. But isn't there something wrong with a process, particularly one that purports to be adversary in nature, that makes trial court judges financially dependent on the criminal defense lawyers who practice before them and vice versa. With the pressure on judges to move their dockets, how can they be entirely politically comfortable with appointing lawyers who will put up a terrific defense for the accused and maybe even tie up the court by insisting on the accused's constitutional right to have a jury trial? If you are interested in reviewing the work of the Texas Task Force on Indigent Defense, you can decide whether the millions of taxpayer  dollars that have been spent on perpetuating an assigned counsel system is meritorious. Read this report:  Lethal Indifference: The Fatal Combination of Incompetent Attorneys and Unaccountable Courts. My own view is that the Houston, Harris County, Texas system remains fatally flawed insofar as providing adequate defense services to the indigent accused. Why? Here are a few reasons: There is no parity between assigned defense counsel and the prosecution with respect to resources; defense counsel is not included as an equal partner in the criminal justice system; assigned defense counsel is not provided with adequate free continuing legal education; defense counsel is not supervised and systematically reviewed for quality, competence, and efficiency according to national and statewide standards; there are inadequate safeguards to ensure that counsel's ability, training, and experience matches the complexity of the case; assigned counsel's workload is not controlled to permit the rendering of quality representation; assigned counsel is not furnished promptly, e.g., upon arrest; and, the public defense function, including the selection, funding, and payment of defense counsel, is NOT independent and free from political influence because the judiciary still maintains too much oversight in deciding who will represent the accused indigent.   The logical solution: A top-notch politically independent PUBLIC DEFENDER'S OFFICE, e.g., San Diego, Seattle, New York and an appointment system that is subject to judicial supervision only in the same manner and to the same extent as retained counsel. There should be state funding and statewide standards to assure uniform quality of lawyering statewide.  Of course, the problem of delivering adequate defense services to indigent accuseds is not specific to Texas or to Houston, Harris County. The problem would not be solved with an inefficient, politically wired public defender office. Our city is not alone in having a questionable system for delivery of defense services; many jurisdictions have underperforming public defense services that are underfunded and understaffed. Here's the way the federals handle court-appointed attorneys when they don't use federal public defenders from local Federal Public Defender Offices.] One other problem in the right to counsel area comes to the surface when a defendant has appealed to the court of appeals and loses there. Within a very narrow thirty day window of time, there is a right to petition the Court of Criminal Appeals for discretionary review; however, there is no constitutional or statutory right to counsel to assist in doing so; as a consequence, many indigent defendants wind up not affording themselves the opportunity to file a pro se petition for discretionary review because their court appointed appellate lawyer failed to advise them of their right to file the petition.

GRAND JURY - I discovered this informative web site on grand juries on the list of links in our own class' web page of links to criminal law sites.  I also found the handbook that the government gives to federal grand jurors.  I also found a web page that lets me see what hundreds of indictments of infamous people look like.  There's even a site containing the 1977 grand jury testimony of the 13 year-old female complainant in the Roman Polanski sexual assault  investigation. But the second most interesting web page is the one containing the 1903 pages of highly focused grand jury investigation into my man, Jacko. Finally, I found my favorite - President Clinton's grand jury testimony in the independent counsel's investigation of the Paula Jones sexual harassment lawsuit before it ripened into the Monica Lewinsky Oval Office up-against- the-wall prison sex case. Is it possible that I'm the only student in the class to look at the links page. If so, should I be keeping this to myself? Nah, because, under that logic, no one will ever read these notes either.

It's clear that the professor believes that, for most purposes, grand juries are putty in the hands of prosecutors. But he did say that many famous investigations have been launched by means of a grand jury investigation, sometimes independent counsel investigations, e.g., Watergate, Ex-President Clinton, etc. The investigative grand jury becomes a sword in the prosecutor's hand rather than a shield for the accused. Prosecutors wind up using the grand jury's subpoena power to call witnesses and subpoena evidence, e.g., the dark navy Monica dress with Mr. Clinton's telltale DNA love tracks all over the front that lit up like Times Square under luminol spray and sealed the morals and perjury case for impeachment against our ex-President. The prosecutors can then use immunity to defeat a grand jury witness' claim of the privilege against compulsory self-incrimination by giving the witness use immunity for what s/he says in front of the grand jury. I can see how you could build a case from scratch, just using the grand jury to make people talk.  If the witness has immunity and doesn't talk, s/he's subject to a judicial finding of being in contempt of the grand jury and will be ordered to jail until s/he purges himself of contempt by answering the questions of the grand jury, like the poor lady in the Carradine case who refused to testify against the Blackstone Rangers Chicago street gang members. [Idea: Could the authorities get some answers in the current multi-pronged investigation of terrorism by using a grand jury investigation and sharing the information uncovered with intelligence agencies and the military. That would seem to be an extension of the grand jury's power.] Note: The Fifth Amendment requirement of indictment in a capital or infamous crime in federal cases has been held by the USSC not to apply to state court criminal defendants. See Hurtado v, California, 110 US 516 (1984). But look at the Texas Bill of Rights, and you'll find that Texas affords this right as a matter of state constitutional law.

Other sources of rights:  The Declaration of Independence ;  US Constitution .   [Historical Note: As future lawyers and protectors of the Constitution, perhaps we all need to read the documents that set up the framework of this huge multi-tiered and hued nation that we inhabit. One day before the beginning of spring 2003, the President ordered our troops to war against the nation of Iraq. Article I, Section 8, of our Constitution gives Congress power to declare war. Art. II, Section 2 makes the President Commander in Chief of the armed forces.  But it's not necessary that Congress to declare war for a President to give the order to attack a foreign country.  I think Congress has declared war only four times: 1812, Spanish-American War, World War I, and World War II. In a war, intentional killing is sanctioned, promoted, and rewarded with medals. The winners sometimes try the losers for war crimes. The moral order of  proscriptions against homicide that we have studied in the crimes course for the past eight weeks may seem to be tipped on its head, but the lawful conduct of war is one of the circumstances in which deadly force is authorized. Look at Section 9.21 (c) TPC.  Anger and fear seems to rule the war days. The side that starts it, the first aggressor or, in situations like Panama and Iraq, the preemptive attacker, has to have motivation, e.g., hate or fear of the folks it is trying to kill or desire for something they have. I wonder: Is there a potential danger that we may lose our own Constitution in the process of winning wars we wage against rogue individuals and countries? If that happens, will we have lost it all? I worry that at some point Due Process of Law may seem expendable and that economy of operations may beckon us to concentrate the power of our nation in the executive branch, with the co-equal branches, i.e., Congress and the courts, deferring to the will of the Commander-in-Chief. As the President tries to stack the deck against suspected terrorists by detaining them indefinitely, aren't we deviating from the democratic process? If so, does this presage tyranny? In trying to protect what we have, I hope that we don't lose a couple of things that make life worth living for each of us 300,000,000 points of light... individual liberty and tolerance under the rule of law. Is the Republic in danger from forces within? If our Constitution ever does come under attack, it's us future lawyers who will need to be in the front lines supporting and defending it.  Wasn't it James Madison who wrote:

"I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations.]  

Wrap time. "And so," in the words of Dr. Samuel Pepys, "to bed." And as Scarlet said, "Tomorrow is another day."