1. The United States Constitution
– Section 9.
o Habeas Corpus cannot be suspended unless rebellion/invasion/public safety require it
o Bills of attainder and ex post facto laws are disallowed
– Section 1. Establishes structure of the court
– Section 2.
o Establishes scope of federal court’s jurisdiction
§ Public officials
§ Controversy involving US govt
§ Two states
§ (State 1) vs. citizen/property-owner(state 2)
§ Citizen(state 1) vs. citizen(state 2)
o Trial by jury
– Section 3.
– Citizens shall be entitled to the privileges and immunities of citizens in the several states
– Constitution is the supreme law of the land
Bill of Rights
– 1st amendment – freedom of religion, speech/press, assembly, petition the govt
– 2nd amendment – right to bear arms (militia extrapolated into public right)
– 3rd amendment – quartering soldiers
– 4th amendment – search and seizure (probable cause, oath/affirmation, and description of warrant’s scope.
– 5th amendment – presentment / double jeopardy / due process / condemnation of private property for public use
– 6th amendment – criminal charges – right to speedy trial by jury / right to be informed of charges / right to confront witnesses
– 7th amendment – where value of controversy is greater than $20, right to trial by jury is preserved
– 8th amendment – prohibits excessive bail or fines / cruel & unusual punishment
– 9th amendment – the bill of rights cannot be construed to limit the rights of the people
– 10th amendment – rights not explicitly given to govt are reserved by the states/ then the people
– 13th amendment – eliminates slavery/involuntary
– 14th amendment – equal protection, due process for all citizens
Chapter 1. The Criminal Process: Failures Choices and Legitimacy
A. Failures (pg 9)
1. James Goodman – Stories of Scottsboro. March 25 1931.
– Nine black kids and some white kids boarded a freight train illegally. The black kids got into a fight with white kids and won. By won, I mean that they threw all but one of the white kids off the moving train. At the next stop, they were arrested and charged with assault and attempted murder.
– In the aftermath, two white women (Price and Bates) stepped forward and accused defendants of rape. At the time, the punishment for black men raping white women was death.
– The sheriff called in the National Guardsmen to prevent these boys from being lynched. Nevertheless, while imprisoned, the boys were beaten and threatened.
– They were tried 12 days after the arrest. Over the next 3 days, 4 juries heard bates and price tell their stories. The courtroom was filled with white men over the age of 21.
– The press waited outside. The story was scandalous – but affirmed what white society already knew – that black men were savages. (segregation, supremacy, and womanhood).
– The witness’ testimony was suspect. Yet believable because jury WANTED to believe it was true.
– Witnesses Price and Bates came from the lowest strata of Southern Society – so low in fact that they lived in the black part of town. They were treated poorly even by white society. They saw this rape as a means to an end – an opportunity to be viewed as poor but virtuous white women who were worthy of respectability within white society.
– The black men died for their lies.
2. Powell v. Alabama , US Supreme court, 1932
– Nine defendants, tried together
– black men accused of raping white women
o no representation by counsel on the day of arraignment
o colloquy by judge was that they’d be represented by the “all members of the bar” for the “purposes of arraignment”
– The trial was severed into three parts – the defendants plead not guilty to each part.
o Each trial was completed in a day
o Alabama imposes 10yrs to death as punishment for black men raping white women
o The men were found guilty
– The lower (AL state) courts all upheld the judgment
o One AL Supreme Court justice registered his dissent with outcome
– On appeal, the issue is whether they were denied 14th Amendment due process and equal protection when they were denied
o 1. A fair trial
o 2. Right of counsel
o 3. Trial by a jury that included members of their own race who were systematically excluded
– Only the second issue is addressed here – denial of counsel
o Policies at play
§ Defendants were ignorant and illiterate,
· referred to as “the boys” not necessarily due to age
§ Defendants were presumed innocent until proven guilty
§ Duty of the court to ensure fair trial
o 1. Whether defendants were (in substance) denied right to counsel? Factors to consider
§ A. Speed of prosecution
· defendants were nonresidents of AL
· not advised of right to counsel
· not given opportunity to contact relatives
· defendants were tried six days after they were indicted
o Speed is necessary, but not when it’s instituted with all the haste of a vicious mob
§ B. Court appointed counsel was insufficient
· Appointment was close-in-time to trial.
o Designation was so close to trial date so as to amount to denial of effective/substantial aid
· Relative credentials of attorneys
o Mr. Roddy – who wasn’t a member of the local bar – was allowed to appear alongside counsel
o No lawyer was appointed until the morning of trial
o Appointing “all members of the bar” for purposes of “arraignment” is insufficient
§ Weight and importance of appointing the named individual
§ Prosecutor appointed even before trial’s start date while defense had no counsel
o Mr. Moody was a member of the bar who offered to HELP Mr. Roddy
§ This is insufficient
§ C. Fact investigation and attorney preparation was impossible
· Defense attorney’s appearance was pro forma, NOT actual
o 2. If so, whether denial of counsel infringes on due process? Factors to consider…
§ AL state allows for attorney-designation in capital offenses
§ Federal law only applies to the extent that due process is implicated
o Right to be heard
o Right to aid by counsel
§ Counsel serves as
· Guide to rules of evidence
· Preparation of defense
· Stopgap measure to prevent improper conviction for ignorance or illiteracy
§ Note that pro se plaintiff/defendant can refuse counsel
o Here, the failure of trial court to give the defendant’s reasonable time and opportunity to secure counsel was an effective denial of counsel
– Dissent by Justice Butler
o Finding of counsel’s lack of preparation is not clear from the record
o Time to prepare element expands scope of due process into field occupied by states
I. Notes and Questions
Bottom line takeaways
(1) Defendants EFFECTIVELY lacked counsel because of the “time and opportunity” to prepare/investigate.
(2) Suspect witnesses and doubts about guilt do not play a role in due process.
a. Due process is the right to a fair trial – no more, no less.
(3) A trial should be fair to the spirit and faithful to the letter of the law.
a. A reversal in an appellate case allows for retrial or dismissal and reindictment on NEW charges (double jeopardy).
(4) The race-factor in the 1930s. The Scottsboro defendants – 4 cases were dismissed, 5 were convicted with varying sentences. One escaped to the north. One was sentenced to death and then pardoned by Gov. Wallace, who ironically was the same Wallace who moved armies to prevent racial integration at the University of Alabama. Wallace was later shot at democratic convention and confined to a wheelchair. Later in his life he sought conciliation with black politicians.
(5) The race factor in the 1900s. Not even a positive identification by a rape victim was required in order to convict . (See 1906 Chatanooga case where witness could not positively identify defendant, defendant was convicted and sentenced to death, Federal court ordered a “stay of execution” in order for an appeal to be held on the issue of due process fairness and mob shot the guy before federal trial could be held. Note however that sheriff and law enforcement officers were charged with contempt of court. )
a. Dead defendant = dismissal of pending trial
b. Dead defendant’s amici can clear his good name.
(6) The religious factor in 1915. Growing anti-Semitism. (See Frank v. Mangum. Leo Frank (a Jew) was convicted of murder of female employee in an era where anti-Semitism was on the rise. Frank was sentenced to death based solely on circumstantial evidence. Supreme Court denied habeas corpus petition because they were reluctant to intrude on state’s rights. Executive clemency petition was filed with the governor and the prison commission. Governor commuted death sentence to life sentence
elds of knowledge
§ Law and economics
§ Law and literature
§ Law and philosophy
o (2) Considers illegitimate factors and can be referred to as critical scholarship.
§ How race/gender/class/hegemony leads judges to shut the door on those who are not in the dominant political majority
– Three factors play a role in causing judges to choose one permissible outcome over another
o (1) American judges are citizens in a free democracy – who care about security and individual rights
§ Security from our enemies subverts individual freedoms
§ Judges secure a balance ensuring that individual freedoms remain protected against govt agents like police and prosecutors
o (2) Federalist and anti-federalist policies demonstrate a shifting balance of relative outcomes based on what state you’re in.
§ There is no consistency among all states
§ Federal courts are reluctant to “reach” into issues “previously occupied exclusively by the states” — reference to and deference to state actors
o (3) Racism
§ Torture was acceptable in the 1930s.
– READING ON… contemplate range of acceptable choices
o Security and liberty
o Robust and minimal federal intervention
I. Notes and Questions
(1) Should holding in Powell (representation by able counsel) be extended to non-capital offenses? Was race a factor in Powell decision? Hypo:
a. Larceny conviction precedes trial for robbery.
i. Understanding the nature of proceeding (defendant previously plead guilty — he’s now standing trial).
ii. Knowledge of process (but he’s not helpless/ignorant of nature of charges or criminal procedure).
iii. Level of education is sometimes a factor (characterization as a person of “ordinary intelligence” may be adequate to waive right to lawyer. Little education is NOW a factor to consider.)
iv. Ability to hire lawyer (poverty, indigence)
b. Defendant’s defense is an alibi.
(2) Rules v. Norms.
(3) Bias v. federalist impulse.
B. Seeking Legitimacy in the Fourteenth Amendment (pg 34)
– The fourteenth amendment (1790) & overcoming the fear of centralized govt after British Parlimentary abuse
– Only then did it become clear that the bill of rights reserved only unenumerated rights to the states (contra marshall’s decision in Barron v. Baltimore).
1. Akhil Reed Amar – The Bill of Rights and the Fourteenth Amendment
– Barron’s holding kept faith with the letter and spirit of the bill of rights – reserving authority to the states
i. Joshua Dressler & Alan Michaels- Understanding Criminal Procedure
– Fourteenth amendment limited state action in three wasys
o No state will make/enforce laws that abridge the privileges/immunities of citizens in the US
o No state shall deprive any person of live/liberty/property without due process
o No state shall deny any person equal protection under the law
– To what extent the 14th amendment INCORPORATES the bill of rights against the states is debated. The debate matters because–
o (1) incorporation protects people from overreaching state agents
§ There is no federal criminal code – but there is a federal law regulating search and seizure (4th amendment)
o (2) federalist values are at stake in the incorporation debate
§ Uniformity among states is inimical to traditional notions of federalism
o (3) incorporation raises questions regarding the proper role of judiciary in the enforcement of constitutional rights (Federal questions).
§ Competing theories of incorporation leave room for variance in judicial results. (danger of bias)