“Knowledge will forever govern ignorance; and a people who mean to be their own governors must arm themselves with the power which knowledge gives.” - James Madison

Stand up and waive if you have read the US Constitution.  Make sure you read that section about “God.”  If you look, “God” is not mentioned in the Constitution.  And there is a good reason for that omission.

President James Madison and the other Founding Fathers would be happy to know the Constitution they signed 233 years ago today is still in place, but they might also be dismayed over the lack of knowledge Americans have of the “people’s document.”  Montpelier’s Center for the Constitution released results of a national survey conducted this summer to gauge knowledge of constitutional principles. Although 79 percent of those surveyed said they understood at least some of the Constitution, only 28 percent of the 988 people surveyed said they have actually read the entire document.

Because so many people have not read the Constitution, they may be surprised to learn the word “God” is not used in the US Constitution.  Unlike the Declaration of Independence, the United States Constitution contains no reference to God. At first, this may seem odd.  But is not odd if one considers the different purposes of the two documents.

The Declaration was about explaining to the world why America was rebelling.  The Declaration calls upon a  non-sectarian concept of divinity to support  rights set forth as unalienable, with liberty as inviolable.  The phrase “laws of nature and of nature’s god” is associated with eighteenth century deism, a “rather vague Enlightenment-era belief . . . in a Creator whose divine handiwork was evident in the wonders of nature” but not “a personal God who interceded directly in the daily affairs of mankind.  WALTER ISAACSON, AMERICAN SKETCHES: GREAT LEADERS, CREATIVE THINKERS, AND HEROES OF A HURRICANE 29 (2009); see also STEVEN WALDMAN, FOUNDING FAITH: PROVIDENCE, POLITICS, AND THE BIRTH OF RELIGIOUS FREEDOM IN AMERICA 88–89 (2008) (“This was the language of the Enlightenment theology that grew up in the eighteenth century as a result not only of philosophical innovations—John Locke, David Hume, and others—but also, more important, of scientific innovations.”).  The term “nature’s god” is consistent with Jefferson’s deistic beliefs. William D. Gould, The Religious Opinions of Thomas Jefferson, 20 MISS. VALLEY HIST. REV. 191, 199 (1933) (“Jefferson was not a deist. . . .  [H]e was a decided Unitarian.”), with 3 DUMAS MALONE, JEFFERSON AND HIS TIME: JEFFERSON AND THE ORDEAL OF LIBERTY 481 (1962) (“Actually, he was a deist, not an atheist.”).

The Constitution outlines a republican government in a free country. The Preamble to the Constitution declares that its purposes are “to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty.” These are wholly secular objects.  A religious reference is therefore extraneous in a document drafted to further those goals. 

The absence of references to “God” in the Constitution is consistent with the strict religious neutrality of the entire document.  There is no state religion and Article VI of the Constitution provides that “no religious Test shall ever be required as a qualification to any Office or public Trust under the United States.” The First Amendment to the Constitution, ratified in 1791, provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” 

As creatures of the Enlightenment, the writers of the Constitution were keenly aware of the threat to the principle of universal freedom of religion.  Indeed, shortly before the Constitution was proposed and ratified, Thomas Jefferson and James Madison squared off against Patrick Henry and his bill for “Establishing A Provision for Teachers of the Christian Religion” for Virginia in the mid-1780s. Jefferson and Madison won the day, and the Virginia legislature did not enact Henry’s bill. 
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Thus, when Madison drafted the Constitution he left out the term “God” since he wanted no part of religious intolerance and bloodshed, and established the first government in history to separate church and state.

After stepping down as a lobbyist for the cable industry, Robert L. Johnson decided to launch his own cable television network. Johnson would soon acquire a loan for $15,000 and a $500,000 investment to start Black Entertainment Television (BET), launched on January 25, 1980.  Black Entertainment Television (BET) is an American pay television channel targeting African American audiences.  As of Feburary 2015, approximately 88,255,000 American households (75.8% of households with television) receive the channel.  It is interesting to note, therefore, that Robert Johnson, has said those who are toppling Confederate and other statues across the nation as "borderline anarchists" -- while challenging the notion that black Americans support pulling down statues.  Johnson believes tearing down a statue means "absolutely means nothing."

I have no way of knowing whether Johnson’s belief is a representative belief of the black community.  But I do know Johnson’s belief serves to highlight my own ambivalence on the topic.

On one hand, pointing a finger at a person from history because they do not hold the enlightened beliefs we have today seems unfair to me.  To blame specific historical individuals for not supporting progressive causes that no one else at the time that we know of was even proposing is basically unfair.  This concerns the doctrine of “presentism” which is explored in the book, Presentism: Reexamining Historical Figures Through Today's Lens which is described as a book about how removing statues has brought the reassessment of historical figures to the fore. “It has raised questions about whom we choose to venerate; how historical narratives form; and whether it is best to erase problematic figures from the historical record, present a new interpretation on them, or attempt to be as unbiased as possible by contemporary attitudes when regarding them. Readers will learn more about this timely and complicated issue through a wide range of perspectives.” 

Presentism is the anachronistic introduction of present-day ideas and perspectives into depictions or interpretations of the past. Some modern historians seek to avoid presentism in their work because they consider it a form of cultural bias, and believe it creates a distorted understanding of their subject matter.  The practice of presentism is regarded by some as a common fallacy when writing about the past.  The historian David Hackett Fischer in his book Historian’s Fallacies, Toward a Logic of Historic Thought, identifies presentism as a fallacy also known as the “fallacy of “nunc pro tunc.” It is the mistaken idea that the proper way to do history is to prune away the dead branches of the past, and to preserve the green buds and twigs which have grown into the dark forest of our contemporary world.

For instance, many believe that our democratic ideas have origins with the ancient Greeks.  But the ancient Greeks supported slavery.  Interesting enough, outside an isolated reference to slavery as being “contrary to nature” and “unjust” in Aristotle’s Politics 1.1253b, translated by H. Rackham, there is no mention of slavery as being wrong and certainly nowhere is there a working plan to abolishing slavery (say by a civil war) in Greek texts.
It  seems to me to be unfair, therefore, to blame Aristotle for not supporting progressive causes that no one else at the time that we know of was even proposing.  Even great thinkers of a time live in that time, not our time.

So it is clear, however, I am not saying “Well, slavery was ok in ancient Greece because, you know, morals were different back then and slavery was acceptable.” That is an endorsement of a form of moral relativism that can take us to some seriously dark, disturbing places.  If morality is dictated solely by society and whatever society says is just must therefore be just, this would mean that, if most people suddenly decided—for no apparent reason—that raping and murdering people was morally good and that not raping and murdering people was evil, then it would actually become morally good to rape and murder people and anyone who did not rape and murder anyone would be not only considered wicked, but actually wicked. Clearly, this is an absurd conclusion.  Clearly, social conformity does not necessarily equate to morality.

So does this excuse people like Thomas Jefferson who boldly proclaimed that “that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness” but had slaves?  No.  Like many Founding Fathers, it has to be admitted Jefferson was a liar on the question of slavery.

As stated by Spencer Alexander McDaniel, B.A. Classical Studies & History, Indiana University Bloomington, Jefferson hypocritically owned slaves but Jefferson authored numerous treatises in which he unambiguously condemned slavery as immoral. He deplored slavery as a “moral depravity,” an “abominable crime,” and a “hideous blot.” He even claimed that it was the greatest threat to fledgling American democracy.  Jefferson supported the gradual abolition of slavery, believing that slavery could not simply be abolished all at once. Like many of the other Founding Fathers, Thomas Jefferson believed that slavery would eventually die out on its own without any form of government intervention.  Jefferson himself only ever set a few slaves free over the course of his entire lifetime. Unlike Washington, Jefferson did not even set his slaves free in his will.  Nor can it be said that in his own lifetime Jefferson was unaware of his hypocrisy.  Black abolitionist writer Benjamin Banneker wrote an eloquent letter to Thomas Jefferson pointing out to him his own blatant hypocrisy over slavery by quoting the words of the Declaration of Independence back to Jefferson.  So the determination of Jefferson as a hypocrite on the issue of slavery is not made from the point of view of today, but from the point of view of yesterday.  Does that mean Jefferson was an evil man?  No.  It means he was a flawed person like any other person.

A person from history lived in history not today.  And even flawed persons have a place in history.  If for no other reason than for us to learn from their mistake.  

​COVID-influenced federal sentence reductions

We can now confidently state that there have been over 500 federal sentence reductions grants in the just the last three months.  Some of those grants are detailed in some of the posts below, and I am hopeful the US Sentencing Commission or someone else "official" might have a truly comprehensive report on these matters before too long.
In United States v. Rodriguez, No. 2:03-cr-00271-AB-1 (ED Pa. Apr. 1, 2020) (available for download below). The start of this new opinion highlights why it is a must-read for anyone working on 3582(c)(1)(A) motions these days:
We are in the midst of an unprecedented pandemic. COVID-19 has paralyzed the entire world. The disease has spread exponentially, shutting down schools, jobs, professional sports seasons, and life as we know it. It may kill 200,000 Americans and infect millions more. At this point, there is no approved cure, treatment, or vaccine to prevent it. People with pre- existing medical conditions — like petitioner Jeremy Rodriguez — face a particularly high risk of dying or suffering severe health effects should they contract the disease.
Mr. Rodriguez is an inmate at the federal detention center in Elkton, Ohio.  He is in year seventeen of a twenty-year, mandatory-minimum sentence for drug distribution and unlawful firearm possession, and is one year away from becoming eligible for home confinement. Mr. Rodriguez has diabetes, high blood pressure, and liver abnormalities. He has shown significant rehabilitation in prison, earning his GED and bettering himself with numerous classes. He moves for a reduction of his prison sentence and immediate release under the “compassionate release” statute, 18 U.S.C. § 3582(c)(1)(A).  He argues that “extraordinary and compelling reasons warrant such a reduction.” 18 U.S.C. §3582(c)(1)(A)(i).
For Mr. Rodriguez, nothing could be more extraordinary and compelling than this pandemic. Early research shows that diabetes patients, like Mr. Rodriguez, have mortality rates that are more than twice as high as overall mortality rates.  One recent report revealed: “Among 784 patients with diabetes, half were hospitalized, including 148 (18.8%) in intensive care.  That compares with 2.2% of those with no underlying conditions needing ICU treatment.”
These statistics — which focus on the non-prison population — become even more concerning when considered in the prison context. Prisons are tinderboxes for infectious disease. The question whether the government can protect inmates from COVID-19 is being answered every day, as outbreaks appear in new facilities. Two inmates have already tested positive for COVID-19 in the federal detention center in Elkton — the place of Rodriguez’s incarceration.  After examining the law, holding oral argument, and evaluating all the evidence that has been presented, I reach the inescapable conclusion that Mr. Rodriguez must be granted “compassionate release.”
Download Rodriguez Memorandum
 
Here are a few more:
United States v. Campagna, No. 16 Cr. 78-01 (LGS), 2020 WL 1489829 (SDNY Mar. 27, 2020) ("Defendant’s compromised immune system, taken in concert with the COVID-19 public health crisis, constitutes an extraordinary and compelling reason to modify to Defendant’s sentence on the grounds that he is suffering from a serious medical condition that substantially diminishes his ability to provide self-care within the environment of the RCC.")
United States v. Powell, No. No. 1:94-cr-00316 (ESH) (DDC Mar. 28, 2020) (available here) ("Defendant is 55-years-old, suffers from several respiratory problems (including sleep apnea and asthma), and has only 3 months remaining on his 262-month sentence. The government does not oppose the relief sought. In addition, the Court finds that requiring defendant to first seek relief through the Bureau of Prisons’ administrative process would be futile because defendant has an open misdemeanor case in Superior Court which the Bureau of Prisons has advised defense counsel renders defendant ineligible for home confinement.")
United States v. Muniz, No. 4:09-CR-0199-1, 2020 WL 1540325 (SD Tex. Mar. 30, 2020) ("Because Defendant is at high-risk for severe illness from COVID-19 and because inmates in detention facilities are particularly vulnerable to infection, the Court finds that Defendant has demonstrated an extraordinary and compelling reason for compassionate release.")
United States v. Gonzales, No. 2:18-CR-0232-TOR-15, 2020 WL 1536155 (Ed Wash. Mar. 31, 2020) ("Defendant is the most susceptible to the devastating effects of COVID-19. She is in the most susceptible age category (over 60 years of age) and her COPD and emphysema make her particularly vulnerable.... The Court was aware of Defendant’s underlying medical condition and took that into consideration at the time of sentencing. In normal times, Defendant’s condition would be manageable. These are not normal times, however.")
 
United States v. Lynn, No. 89-0072-WS, 2020 WL 3229302 (SD Ala. June 15, 2020)
 
United States v. Liew, No. 11-cr-00573-JSW-1, 2020 WL 3246331 (ND Cal. June 15, 2020)

United States v. Miller, No. 3:15-cr-132-2 (VLB), 2020 WL 3187348 (D Conn. June 15, 2020)

United States v. Head, No. 2:08-cr-00093-KJM-2, 2020 WL 3180149 (ED Cal. June 15, 2020)
 
United States v. Rivera, No. 3:13-cr-71-1 (VLB), 2020 WL 3186539 (D Conn. June 15, 2020)
 
United States v. Acevedo, No. 18 CR. 365 (LGS), 2020 WL 3182770 (SDNY June 15, 2020)

United States v. Lavy, No. 17-20033-JAR, 2020 WL 3218110 (D Kan. June 15, 2020)
 
United States v. Patel, No. 3:17cr164 (JBA), 2020 WL 3187980 (D Conn. June 15, 2020)

Segars v. United States, No. 16-20222-3, 2020 WL 3172734 (ED Mich. June 15, 2020)
 
United States v. Madrigal, No. 5:18-cr-00356-EJD-3, 2020 WL 3188268 (ND Cal. June 15, 2020)
 
United States v. Knox, No. 2:16-cr-00116-MHH-JHE-3, 2020 WL 3207799 (ND Ala. June 15, 2020)

United States v. Reed, No. 12-CR-161 YGR, 2020 WL 3128904 (ND Cal. June 13, 2020)

United States v. Bikundi, No. 14-30-2 (BAH), 2020 WL 3129018 (D D.C. June 12, 2020)
 
United States v. White, No. 2:17-cr-00198-4, 2020 WL 3244122 (SD W. Va. June 12, 2020)

United States v. Heitman, No. 3:95-CR-0160(4)-G, 2020 WL 3163188 (ND Tex. June 12, 2020)
 
 
United States v. Fields, No. 2:05-CR-20014-02, 2020 WL 3129056 (WD La. June 11, 2020)
United States v. Halliburton, No. 17-cr-20028, 2020 WL 3100089 (CD Ill.  June 11, 2020)
United States v. DeBartolo, No. 14-016 WES, 2020 WL 3105032 (D R.I. June 11, 2020)
 
REPRINTED FROM: By  Douglas A. Berman, Newton D. Baker-Baker & Hostetler Chair in Law
https://sentencing.typepad.com/sentencing_law_and_policy/
 
 

In this image by Goya, a person, asleep at his drawing table, is besieged by creatures associated in Spanish folk tradition with mystery and evil. The title of the print, emblazoned on the front of the desk, is often read as a proclamation of Goya’s adherence to the values of the Enlightenment—without Reason, evil and corruption prevail.
 
Wisconsin is now under an order from state government to "stay at home" to slow the spread of the new coronavirus.  It is not understatement this order has restricted the lives of people in unimaginable ways.  Gov. Tony Evers issued this order after hearing health care professionals tell him it was the only way to slow the spread of COVID-19.  In other words, there was scientific proof for the uncomfortable order issued by Gov. Evers.
 
Nonetheless, around May 2nd, protesters gathered near Brookfield Square to protest Gov. Evers orders despite the scientific basis for the orders.  Also, Wisconsin Republican lawmakers have asked the state Supreme Court to block the order, telling justices that Evers' administration broke the law in its effort to stop the spread of COVID-19.  Despite the scientific evidence to support this order, Justice Rebecca Bradley viewed those powers as too broad and compared them to tyranny.  "One of the things this order does is allow people to go to prison for leaving their homes unless it's OK with the DHS secretary," said Bradley.

So the bottom line is members of the public and Republican lawmakers have rejected scientific evidence from health care professionals that the only way to slow the spread of COVID-19 is by the stay at home orders.

Apparently, Wisconsin is in a rush to embrace beliefs not supported by science but public opinion alone.  As exemplified by the stay at home protests, its a path that’s not just anti-scientific, but self-destructive. The scientific solution to a pressing social problem is sought to be disregarded in favor of bumper-sticker simplicities and blind faith.  It seems coronavirus and ignorance are contagious.  Wisconsin believes the scientific basis for combating COVID 19 is just so impractical.  The danger is that totalitarian governments manipulate and apply anti-intellectualism to repress political dissent.  For example, in 2019, academics Adam Waters and E.J. Dionne stated that U.S. President Donald Trump "campaigned for the presidency and continues to govern as a man who is anti-intellectual, as well as anti-fact and anti-truth."  America hits peak anti-intellectualism: Majority of Republicans now think college is bad". Salon.;"Is Anti-Intellectualism Ever Good for Democracy?". Dissent.
Can unscientific beliefs be quarantined?

Of course not.  But unscientific thinking presents problems for criminal defense.  After all, some of the anti-scientific protestors at Brookfield Square will be jurors.  How will jurors who contemptuous of science decide cases where “common sense” does not square with scientific evidence?

Take for instance the case of America’s favorite “little tramp,” Charlie Chaplin.  See also, Arthur John Keeffe et al., Sense and Nonsense About Judicial Notice, 2 STAN. L. REV. 664, 670-71 (1950).  In the Stanford Law Review, Professor Keeffe explained that Chaplin had to defend against a paternity claim that was based on the woman saying she slept with no other man besides Chaplin during the period in question.  Chaplin’s defense consisted of unchallenged blood tests excluding Chaplin as a possible father.  The jury found for the woman.  Berry v. Chaplin, 169 P.2d 442, 450 (Cal. Dist. Ct. App. 1946) (jury having heard all the evidence made its determination and the verdict will not be disturbed.

If you think juries have somehow become more sophisticated scientifically, consider People v. Rivera, 962 N.E.2d 53 (Ill. App. Ct. 2011).  Rivera was prosecuted on charges of rape and murder of a young girl.  There was a DNA test result which excluded him as a possible source of semen in the girl's vagina.  But the prosecution had a jailhouse informant and a confession given after Rivera had endured four days of unrecorded interrogation and had suffered what a nurse described as a "psychotic episode.”  The prosecution explained that the presence of the other man's semen in the vagina must have resulted either from her coincidentally having had consensual sex with another man shortly before Rivera raped and killed her, or from contamination of the rape kit sample with sperm of another man sometime in the twenty-four hours after the girl's autopsy.  The state offered no evidence of contamination, and its only evidence of consensual sex was that the girl had been forced to perform oral sex at age eight, knew how to masturbate, and was wearing "red lace panties" the day of her murder.  Jury found Rivera guilty.

Rivera’s case unfortunately is not unique.  Cases examined on the CBS News show 60 Minutes the state obtained convictions of five juveniles in a rape-murder of a fourteen-year-old girl in Chicago based on their stationhouse confessions.  The juveniles say they were forced or tricked into confessing to violent crimes they never committed.  Semen recovered in the rape kit had a single-male DNA profile that failed to match any of the five defendants, but the prosecution continued.  The state's attorney explained that the five men did not ejaculate and that the semen may have been the result of necrophilia - of an unrelated man having sex with the corpse.  Each of the juveniles spent nearly half their lives in prison before being released.

Scientific ignorance in the criminal system, like real life is a dangerous thing.  In the criminal system, ignorance results in wrongful convictions.

SOURCE: Captain Steve Brancazio Boca Raton Police Department



What is a citizen who wants to follow the law to do when:

Wisconsin Governor Evers issued an executive order that to contain the spread of the deadly COVID 19 disease, people should stay at home and non-essential businesses should remain closed. 

Washington County Sheriff Martin Schultis has said failure to follow this order "is a criminal violation. It's an arrestable violation."  Kenosha County Sheriff Beth has also urged people to follow the order.  Milwaukee police are allowed to issue citations to people failing to comply with Governor Tony Evers' "Safer at Home."

However, Racine County Sheriff Christopher Schmaling has refused to enforce Gov. Evers emergency measures and enforce rules and orders to protect the public during a health crisis.  The medical profession, incidentally, disagrees with Sheriff Schmaling “I understand people wanting to verbalize how they feel and wanting to get back on their feet again, but we have to remember the greater good and the fact that we’re not going to achieve that if people are dying, and if we’re putting the health of our population at risk,” said family physician Dr. Shannon Daun.  The doctors opinion is joined by at least 36 other medical professionals.

Which sheriff is right?  Who knows?  The problem is a citizen should not be forced to decide when her liberty hangs in the balance.  Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939)

Arbitrary enforcement of the law pose two problems: when criminal codes fail to clearly define the offense, citizens may not understand what conduct is prohibited and police are likely to enforce the law in an arbitrary and discriminatory manner.  Kolender v. Lawson, 461 U.S. 352, 357-58 (1983).  One of the problems with arbitrary enforcement is its capacity to further racial injustice in the criminal justice system.  After all, police have a tendency to enforce the law against any group that may happen to “merit their displeasure.”  Papachristou v. City of Jacksonville, 405 U.S. 156, 170 (1972).  This is the answer to those who say a vague law is a small price to pay for security of increased police stops.  The officer's infringement on liberty may seem to a majority of a community a small price to pay precisely because it was imposed on a minority community and not on them.  In Johnson v United States, 333 US 10, 13, 17 (1948) the Supreme Court stated that "[t]he point of the Fourth Amendment, which often is not grasped by zealous officers,"" is to protect "one of the most fundamental distinctions between our form of government, where officers are under the law, and the police-state where they are the law."  The basic policy or purpose behind the Fourth Amendment is to safeguard an individual’s privacy and protect individuals against arbitrary invasions by officials of the government.  Delaware v. Prouse, 440 U.S. 648, 653-54 (1979) (quoting Camara v. Municipal Court, 387 U.S. 523, 528 (1967)).  See also, Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978); United States v. Martinez-Fuerte, 428 U.S. 543, 561 (1976); United States v. Ortiz, 422 U.S. 891, 895 (1975); Almeida-Sanchez v. United States, 413 U.S. 266, 270 (1973).

“[T]he dividing line between what is lawful and unlawful cannot be left to conjecture.”  Connally v. General Const. Co., 269 U.S. 385, 393 (1926).  Law enforcement does not have the discretion to pursue their personal predilections on an ad hoc, subjective and discriminatory basis.  Kolender v. Lawson, 461 U.S. 352, 357-58 (1983); Grayned v. Rockford, 408 U.S. 104, 108–09 (1972); Papachristou v. City of Jacksonville, 405 U.S. 156, 168-71 (1972). 

"[I]t will not do to hold an average man to the peril of an indictment for the unwise exercise of his . . . knowledge involving so many factors of varying effect that neither the person to decide in advance nor the jury to try him after the fact can safely and certainly judge the result."  Cline v. Frink Dairy Co., 274 U.S. 445, 465 (1927).  Critically, therefore, a citizen has a right to fair warning at a point in time prior to the state court litigation and contemporaneous with the act which the state seeks to punish for a violation of the law.

This means a person can only be punished fairly if he has notice before he acts.  As matter of fairness, retroactivity is not favored in the law.  Kaiser Aluminum & Chem. Corp., et al. v. Bonjorno, 494 U.S. 827, 837 (1990); Bowen v. Georgetown University Hospital, 488 U.S. 204, 208 (1988). 

Normally governors use executive orders for ceremonial purposes like honoring soldiers and police officers killed in the line of duty.  However in times of emergency, an executive order can do much more.

With the spread of the COVID-19 virus states like Deleware, New Jersey and Rhode Island delayed scheduled spring elections.  Chris Cillizza, Why in the world is Wisconsin still holding a primary on Tuesday?, CNN.com (Apr. 2, 2020, 3:35 PM); COVID-19 and Elections, National Conference of State Legislatures.  Following this trend, Gov. Evers issued Executive Order 74, much like the other states.  The executive order found that “as of April 5, 2020, 2,267 Wisconsinites have tested positive for COVID-19, 624 Wisconsinites have been hospitalized due to COVID-19, and 68 Wisconsinites have passed away as a result of COVID-19, 241,703 individuals in the United States have tested positive for COVID-19, and 5,854 have passed away as a result of COVID- 19, and, worldwide, more than 1,100,000 people have tested positive for COVID-19, and more than 62,000 people have passed away as a result of COVID-19.”  Therefore, every poll worker and voter who visited the polls, “faced a significant risk of exposure to someone infected with COVID19 by engaging in the process of in-person voting.”  In line with state and local public health officials who found that in-person voting on April 7 presented a "serious challenge to controlling the spread of COVID-19, " the governor postponed the election.

Hours after Gov. Evers issued Executive Order 74 postponing the election for two months, the conservative-controlled Wisconsin Supreme Court said he didn't have the authority to reschedule the race on his own.  The Court admitted that a “public health emergency [is] plaguing our state,’ but the Court said that was not the legal issue before the Court.  Rather the question was did the “Governor has the authority to suspend or rewrite state election laws. Although we recognize the extreme seriousness of the pandemic that this state is currently facing, we conclude that he does not.”

So just what is an executive order in Wisconsin?

Although there is no general statutory or constitutional provision establishing the scope and use of executive orders, under Article V, Section 4, of the Wisconsin Constitution the governor is granted broad authority:

[Article V] Section 4. "The governor shall be commander in chief of the military and naval forces of the state. He shall have power to convene the legislature on extraordinary occasions, and in case of invasion, or danger from the prevalence of contagious disease at the seat of government, he may .convene them at any other suitable place within the state. He shall communicate to the legislature, at every session, the condition of the state, and recommend such matters to them for their.c.onsideration as he may deem expedient. He shall transact all necessary business with the officers of the government, civil and military. He shall expedite all such measures as may be resolved upon by the legislature, and shall take care that the laws be faithfully executed."

There are also various statutes which permit the governor to issue orders pertaining to specified matters such as special elections under Wis. Stat. § 8.50 or emergency powers of the governor under Wis. Stat. § 323.10 (“If the governor determines that a public health emergency exists, he or she may issue an executive order declaring a state of emergency related to public health for the state or any portion of the state and may designate the department of health services as the lead state agency to respond to that emergency.”) and Wis. Stat. § 323.12(4)(b) indicating the governor can “[i]ssue such orders as he or she deems necessary for the security of persons and property.”  It is left to the Governor discretion to determine what is “necessary” to protect the public. Wis. Stat. § 323.12(4)(b) (“. . . as he or she deems necessary. . .”).  Finally, Wis. Stat. § 323.12(3) creates three separate duties a Governor shall take during an emergency: (1) “issue orders,” (2) “delegate such authority as is necessary to the [administrator of emergency management services],” (3) “and direct the [emergency management division] to coordinate emergency management activities.” (emphasis added).  Thus, in Executive Order 262, for instance, Governor Walker called a special election for Assembly District 58, “pursuant to article IV, section 14 of the Wisconsin Constitution and section 8.50 of the Wisconsin Statutes.”

Beginning with the Gov. Knowles administration in 1965, formal declarations designated ·as “executive orders" were employed to achieve various purposes not expresly authorized by statute. While his predecessors generally used mOre informal methods, Governor Knowles made frequent use of the executive order to establish a series of committees, councils, and task forces to conduct various studies and provide suggestions for possible legislation.  The Legislative Reference Bureau has noted that “fiscal, social and political environment in which governors conduct state business has changed drastically in recent years. As a result, the governor's job has become more complex and difficult and the public's expectations for state action to solve problems and provide services has risen proportionately. Thus, it is possible to view the increased number of executive orders issued in recent years in the context of the more active role the governor is required to assume in meeting the challenges of governing.”

Despite past actions by other governors similar to Executive Order 74, the Wisconsin Supreme Court said the order was not permissible.  Unlike with Gov. Walker, the Wisconsin Supreme Court read the governor’s powers narrowly. The Wisconsin Supreme Court recently held that Chapter 323 does not authorize the Governor to rewrite or suspend statutes and, therefore, ruled that he may not postpone an election set by state statute. Wisconsin Legislature v. Evers, Case №2020AP608-OA (Wis. Apr. 6, 2020)
 

There are two principal ways for all citizens to participate in our democracy – at the voting booth and in a jury box. Thomas Jefferson considered “[T]rial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” Alexis de Tocqueville said, “The jury, which is the most energetic means of making the people rule, is also the most efficacious means of teaching it to rule well.” Supreme Court Justice Byron White, in Duncan v. Louisiana (1967), wrote: “The jury trial provisions in the Federal and State Constitutions reflect a fundamental decision about the exercise of official power – a reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges.” All of these scholars agree the right to jury trial, as well as the right to vote, grants to the common man and woman the ability to determine issues in a democratic way.  The right to a "trial by jury" is "a valuable safeguard to liberty" and "the very palladium of free government." The Federalist No. 83, at 499 (Alexander Hamilton) (Clinton Rossiter ed., 1961)
 
So does a defendant have a right to jurors to appear in person for a criminal trial in the era COVID-19? 
 
Federal and state courts in all 50 states have postponed jury trials and are struggling to try and maintain court functions and access to the justice system in light of the COVID-19 pandemic and public health concerns. As a result, there is a provision in Congress’ new $2 trillion proposed COVID-19 relief bill that allows for remote proceedings, such as video and teleconferencing in some court hearings.   The Wisconsin Supreme Court has ordered that, “Judges, commissioners and clerks of circuit court are required to utilize e-mail, teleconferencing, and video conferencing technology in lieu of in-person courtroom appearances through at least April 30.”
 
Someone, somewhere is going to propose that jurors at criminal jury trials appear on-line.  For instance, the New York Post reported:

A sick juror was allowed to FaceTime into deliberations on the final day of a Manhattan federal court trial amid New York’s coronavirus outbreak.
The man — one of 11 jurists weighing the fate Al Sadr Hashemi Nejad, an Iranian banker accused of violating US sanctions against the country — called the court Monday and reported feeling unwell and requested to stay home as a precaution.
 
Judge Alison Nathan, who said the court was under “extraordinary circumstances,” ruled the electronic deliberation could move forward.
 
……….
 
Prosecutors in the case asked for a mistrial, arguing the man would not be sequestered in the same way other members of the jury are and would have access to the internet and other reading materials. Judge Nathan denied the request.
Hours after they began deliberating, the jurors voted unanimously to convict Nejad on a slew of charges including money laundering, conspiracy and fraud charges. He faces more than 100 years behind bars at sentencing.
 
On line jurors would present a number problems.
 
Technical problems
Normally, potential jurors appear together in a jury box in the courtroom.  They have the same surroundings.  Not so if a potential juror appears on line from home on some on line platform like Zoom.  This cause real problems.  Initially these platforms allow ease of access and broad information collection as default settings instead of thinking more completely about preventing harms or protecting privacy.  That is the opposite of what is needed for an on line jury trial.
 
A lesson can be learned from what happens to colleges that have been forced to have on line classes.  First, there is the problem of what is said on line during class time.  Many times statements are made that have little to do with course material but instead relate to other topics. These statements can be vulgar, racist, misogynistic toilet humor.  Are we to assume jurors, clothed in on line protection at home rather than the solemnity of a courtroom, would not behave similarly?  Even if it is not the jurors themselves, what about "zoombombing"?  Zoombombing is the process by which racist vitriol or pornographic content is shared with the group by an unwelcome user that infiltrate the online meeting.  In such circumstances, the online class must be shut down.
 
Think of the cost to the taxpayers of on line trials which are zoombombed at some point and must be started over again.
 
The nature of online lying
Research shows that contrary to what may be assumed, people do not lie more online than in real life.  However, the nature of lying on line would be a major concern for selecting a fair and impartial jury.  The same researchers, like Associate Professor of Department of Communications, UW-Madison Catalina Toma, explain that people who lie online do so to satisfy their interpersonal agenda.  Moreover, Prof. Toma also explains that “human beings are incredibly poor at detecting deception.”  So if a potential juror has as their online agenda to hide some attitude, such as racial bias, it likely will not be detected.
 
Denial of effective juror selection
Juror selection or voir dire is difficult.  One study concludes that "[v]oir dire was grossly ineffective not only in weeding out 'unfavorable' jurors but even in eliciting the data which would have shown particular jurors as very likely to prove 'unfavorable."'  Broeder, Voir Dire Examinations: An Empirical Study, 38 S. CAL. L. REV. 503, 505 (1965).  Voir dire is difficult because it is in reality a self-disclosure interview to obtain background and attitudinal information which might affect a juror's decision in the case.  Virtual juor selection guarantees to inhibit rather than facilitate such self-disclosure.  Sitting at home answering questions a potential juror is far more likely to lie than when present in the formal atmosphere of an actual courtroom.
 
Voir dire is important to determine how a potential juror’s feelings may influence their thinking on the jury . To do so, an attorney must build rapport with the potential jurors.  A minimum level of rapport between the person conducting voir dire and the jurors is necessary for a productive dialogue.  This is grossly inhibited with virtual voir dire.
 
Jurors appearing by the internet interferes the making sure a jury is impartial.  An “impartial jury” is one that is “capable and willing to decide the case solely on the evidence before it,” Smith v. Phillips, 455 U.S. 209, 217 (1982), and that disregards any personal prejudices or biases. See, e.g., Powers v. Ohio, 499 U.S. 400, 411 (1991) (referencing a defendant’s “right to be tried by a jury free from ethnic . . . [or] racial . . .prejudice”); United States v. Maldonado-Rivera, 922 F.2d 934, 971 (2d Cir. 1990) (jurors must “be able to view the evidence with impartiality and to decide the case without bias”).
 
A major function of jury selection or voir dire is to screen jurors for conscious or unconscious bias.  Most agree that exposing racial bias can be hard to root out.  As the US Supreme Court explained in Peña-Rodriguez v. Colorado, 580 U.S. ___ (2017) (no-impeachment rule of jury verdict is set aside when a juror makes a clear statement indicating that he or she relied on racial stereotypes or animus to convict a criminal defendant), “generic questions” about racial bias may not go far enough to expose it, but more specific questions could actually make the problem worse.  An on line jury would exacerbate the problem of exposing racial bias since a juror can hide behind a computer screen.  The court concluded that a “constitutional rule that racial bias in the justice system must be addressed—including, in some instances, after the verdict has been entered—is necessary to prevent a systemic loss of confidence in jury verdicts, a confidence that is a central premise of the Sixth Amendment trial right.”
 
Jurors are also told that the one exception to the sanctity of the secrecy to jury deliberations is if a juror in deliberations presents a racially motivated position for a position.  Jurors may be more reluctant to report racially biased statements by other members of the jury than, say, statements suggesting that a juror’s personal experiences with the subject matter of the dispute affected her vote.
 
Open and Public trials
The right to a public trial is a basic tenet of our judicial system, Walton v. Briley, 361 F.3d 431, 432 (7th Cir.2004), rooted in “ the principle that justice cannot survive behind walls of silence․” Sheppard v. Maxwell, 384 U.S. 333, 349, 86 S.Ct. 1507 (1966).  The importance we as a Nation attach to the public trial is reflected both in its deep roots in the English common law and in its seemingly universal recognition in this country since the earliest times. Gannett Co. v. DePasquale, 443 U.S. 368, 414, 99 S.Ct. 2898 (1979) (Blackmun, J., concurring in part and dissenting in part).  Open and public trials are so important that the violation of the right is considered a “structural error” requiring automatic reversal.  Neder v. United States, 527 U.S. 1, 8, 119 S.Ct. 1827 (1999); Waller v. Georgia, 467 U.S. 39, 49-50 & n. 9, 104 S.Ct. 2210 (1984) (agreeing that "the defendant should not be required to prove specific prejudice in order to obtain relief for a violation of the public-trial guarantee" because such a requirement "would in most cases deprive [the defendant] of the [public-trial] guarantee, for it would be difficult to envisage a case in which he would have evidence available of specific injury.")
 
The Sixth Amendment was written after our Founding Fathers knew of the notorious secret courts known as the Star Chamber under Charles I in the early 17th century.  The term "star chamber" became a generalized term for a private court that was accountable to no one (except the chief executive) and was used to suppress political dissent or eliminate the enemies of the regime.  See also, Wis. Const. Art. I, § 7 (the accused shall enjoy the right...to a speedy public trial).  See also, State v. Ndina, 2009 WI 21, 761 N.W.2d 612 (2009)
 
More recently, the Great Purges in the Soviet Union under Joseph Stalin are best remembered for the Moscow Trials, show trials in which the court became a parody of justice, most of the victims of the Terror were tried in secret. Mikhail Tukhachevsky and his fellow Red Army officers were tried in secret by a military tribunal, and their executions were announced only after the fact. The presiding judge of the Moscow Trials, Vasili Ulrikh, also presided over large numbers of secret trials lasting only a few minutes, in which he would quickly speak his way through a pre-formulated charge and verdict.
 
The Wisconsin legislature has recognized that public attendance at a jury trial is important:

The sittings of every court shall be public and every citizen may freely attend the same, except if otherwise expressly provided by law on the examination of persons charged with crime; provided, that when in any court a cause of a scandalous or obscene nature is on trial the presiding judge or justice may exclude from the room where the court is sitting all minors not necessarily present as parties or witnesses. Wis. Stat. § 757.14.  See, See State ex rel. Newspapers, Inc. v. Circuit Court for Milwaukee County, 65 Wis. 2d 66, 221 N.W.2d 894 (Wis. 1974)

However, the legislature has specifically failed to provide that a jury trial could be conducted by “audiovisual means.”  Wis. Stat. § 967.08.  There is no legal provision providing for the suspension of these constitutional or statutory rights.  See, Mitchell F. Crusto, State of Emergency: An Emergency Constitution Revisited, 61 Loy. L. Rev. 471, 504 & n.189 (2015).  The Constitution only provides that habeas corpus may be suspended, not Sixth Amendment rights.  See, U.S. Const. art I., § 9, cl. 2
 
It cannot be reasonably claimed that jurors who are in their private homes not participating in a public trial.