23 June 2008

Colorado Public Defender Rules Unconstitutional?

Colorado Public Defender Rules May Be Unconstitutional

In a not terribly surprising decision, the U.S. Supreme Court ruled that the right to counsel attaches when you are incarcerated and arraigned before a magistrate, even if the prosecutor's office has not yet become involved in the case because the proceedings were begun by a police officers authorized to do so in local practice. Rothgery v. Gillespie County, Texas.

The only surprising part of the decision is that the District Court and 5th Circuit Court of Appeals had ruled to the contrary (apparently the 5th Circuit had ruled the wrong way in a previous case).

According to the majority in Rothgery, Colorado is one of seven U.S. states that do not "take the first step toward appointing counsel 'before, at, or just after initial appearance.'" It went on to state with regard to these states (citations omitted):

[E]ven in the remaining 7 States (Alabama, Colorado, Kansas, Oklahoma, South Carolina, Texas, and Virginia) the practice is not free of ambiguity.

One brief cited by the majority suggested "that the practice in Alabama, Kansas, South Carolina, and Virginia might actually be consistent with the majority approach." Thus, Colorado and Oklahoma practice, in addition to the Texas practice at issue in the case, might have to be reformed as a result of this decision.

I don't practice criminal law in Colorado on a regular basis and thus, I am not familiar with this detail of Colorado practice. I invite comment from those better informed than I about the impact of the Rothgery decision in Colorado.

Juries For Juveniles In Kansas

Another interesting ruling came out of the Kansas Supreme Court Friday, which held, in the case of In re L.M., that juveniles were entitled to jury trials in juvenile court deliquency proceedings because the juvenile justice system was no longer sufficiently different from the adult process (as a result of tough on crime reforms) to justify denying juveniles a right to a trial by jury.

To my knowledge, Kansas is now the only state in the United States where juveniles have a right to a jury trial in juvenile court. The ruling, arising under the Kansas Constitution, and hence, not reviewable by the U.S. Supreme Court or subject to amendment by the Kansas legislature without a constitutional amendment, was not retroactive in effect.

The decision would provide cover to other state supreme courts similarly disillusioned with the state of juvenile justice, and will almost certainly spawn copy cat litigation in other states, particularly if the right to a jury trial proves unproblematic.

I recall reading the U.S. Supreme Court decision that eliminated the right to a jury trial in juvenile court delinquency cases in law school and found it unpersausive. The Kansas Court summarized that U.S. Supreme Court decision at the outset of its analysis:

[I]n McKeiver v. Pennsylvania, 403 U.S. 528, 29 L. Ed. 2d 647, 91 S. Ct. 1976 (1971), . . . a plurality of the Court held that juveniles are not entitled to a jury trial under the Sixth and Fourteenth Amendments to the Constitution.

In McKeiver, the United States Supreme Court addressed the constitutionality of the Pennsylvania and North Carolina juvenile justice systems, neither of which afforded juveniles the right to a jury trial. Although the resulting plurality opinion held that juveniles are not entitled to a jury trial under the federal constitution, the justices could not agree on the reasoning to support that holding. Four of the justices supported their decision with the following 13 policy considerations and assumptions or speculations about the impact of jury trials on juvenile proceedings:

(1) The Court had previously refrained from flatly holding that all constitutional rights assured to adults accused of crimes were imposed on state juvenile proceedings;

(2) Imposing jury trials might remake juvenile proceedings into fully adversarial proceedings, thereby putting an end to the intimate, informal proceedings envisioned by the creators of the juvenile justice system;

(3) A governmental task force that had studied the juvenile justice system did not make any recommendation regarding jury trials as a means of improving the deficiencies and disappointments in the juvenile system;

(4) As noted in dictum in Duncan v. Louisiana, 391 U.S. 145, 149 n.14, 20 L. Ed. 2d 491, 88 S. Ct. 1444 (1968), a jury trial is not a necessary part of every fair and equitable criminal process;

(5) The imposition of a jury trial would not strengthen the factfinding process and would eliminate the juvenile system's ability to function in a unique way, placing the juvenile "squarely in the routine of the criminal process;"

(6) The Court was reluctant to preclude the States from experimenting with different ways of handling juvenile problems;

(7) The Court refrained from concluding that the abuses in the system were of constitutional dimension;

(8) Nothing prevented the juvenile court judge from using an advisory jury;

(9) Twenty-eight States and the District of Columbia denied juveniles the right to a jury trial, while 10 States provided a jury trial under certain circumstances;

(10) A great majority of States had previously concluded that In re Gault, 387 U.S. 1, 18 L. Ed. 2d 527, 87 S. Ct. 1428 (1967), and Duncan did not require jury trials for juveniles;

(11) The Uniform Juvenile Court Act stopped short of proposing a jury trial;

(12) Injecting a jury trial into juvenile proceedings would bring "the traditional delay, the formality, and the clamor of the adversary system and, possibly, the public trial"; and

(13) The possibility of prejudgment by a judge who has had prior access to the juvenile, the juvenile's record, and the juvenile's social file would ignore every aspect of fairness, concern, sympathy, and paternal attention contemplated by the juvenile system. McKeiver, 403 U.S. at 545-50.

Two concurring justices relied on other reasoning. Justice Harlan concurred with the result because he did not believe that the Sixth Amendment or the right to due process required the states to provide criminal jury trials for anyone. McKeiver, 403 U.S. at 557 (Harlan, J., concurring). Justice Brennan also concurred with the result but relied on the concept of fundamental fairness. According to Justice Brennan, the State did not have to provide jury trials for juveniles as long as some other aspect of the process adequately protected the juvenile's Sixth Amendment interests by preventing governmental oppression. Justice Brennan concluded that the Pennsylvania system was adequate because it allowed public trials, thereby "exposing improper judicial behavior to public view, and obtaining, if necessary, executive redress through the medium of public indignation." 403 U.S. at 555 (Brennan, J., concurring). Under this rubric, Justice Brennan concluded that the North Carolina system was not constitutionally sound because it did not allow public trials. 403 U.S. at 556-57 (Brennan, J., concurring).

Justices Douglas, Black, and Marshall dissented, stating that "neither the Fourteenth Amendment nor the Bill of Rights is for adults alone." McKeiver, 403 U.S. at 559 (quoting In re Gault, 387 U.S. at 13). Noting that the "Sixth Amendment . . . speaks of denial of rights to 'any person,' not denial of rights to 'any adult person,'" the dissenting justices discerned no difference between allowing juveniles the right to a jury trial and the previously granted rights to notice, counsel, protection against self-incrimination, confrontation, and conviction under the beyond a reasonable doubt standard. 403 U.S. at 560-61 (Douglas, J., dissenting). The dissenting justices looked behind the facade of the delinquency charge to the underlying criminal statute and concluded that juveniles who are prosecuted for a criminal act involving a potential loss of liberty are entitled to the same protections as adults accused of a crime. 403 U.S. at 560-61.

When Wrong Is Right

The Colorado Supreme Court and U.S. Supreme Court, in unrelated decisions, held today that sometimes a clearly incorrect legal ruling must be upheld when no timely objection is made to it.

In the Colorado case, Kancillia v. Pearson, a debtor was entitled to exempt disability payments from creditors claims in an amount greater than the amount authorized by statute, because a timely objection to the claim of exemption was not made by the creditor. The Colorado case was unanimous.

In the U.S. Supreme Court case, Greenlaw v. United States, a 15 year sentence was upheld, despite the fact that the defendant was convicted of a crime with a 25 year minimum sentence, because federal prosecutors didn't appeal that sentence, even though they had objected at trial to it. The U.S. Supreme Court ruling was a 6-3 decision not made on the usual partisan lines.

The idea that a clearly legally incorrect decision can be legally binding and unreviewable is sometimes hard for non-lawyers to understand, even though these situations come up fairly often, although usually less blatantly.

Judges and lawyers often make mistakes, and if there weren't limits upon reopening those mistakes, the judiciary's authority would be undermined by the uncertainty involved in judicial rulings.


Anonymous said...

The US Supreme Court case, Greenlaw, was decided by a 7-2 vote, not 6-3. Breyer concurred in the judgment that the court of appeals should not have corrected the error sua sponte (i.e., in the absence of a cross-appeal by the government).

Andrew Oh-Willeke said...

Fair enough. I was aware of the counting issue. Since Breyer joined in most of the dissenting opinion, I was torn about how to characterize his partial dissent, and ultimately took a pessimistic view.

But, placing him in the majority when he concurs in judgment even he partially joins in a dissent, probably is a more accurate characterization.

Andrew Oh-Willeke said...
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