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ATTORNEY PAUL A. KSICINSKI
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HISTORICAL NUNC PRO TUNC: THROW DOWN A BUST OF ARISTOTLE TO FIGHT RACISM

6/27/2020

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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.  
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COVID-influenced federal sentence reductions

6/17/2020

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​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/
 
 
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The First Amendment protects acts designed to express disgusting opinions.

6/10/2020

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Letting disgruntled citizen vent is important to national security, experts say, but some messages emanating from angry Americans in recent weeks have pressed the boundaries of free speech.  Dr. Jerrold Post, a George Washington University political psychology professor who spent 21 years with the CIA, said that in nations where free speech is snuffed, such as Yemen and Pakistan, domestic terrorism is more prevalent.  Experience shows that the way to fight political expression with which one disagrees is not to outlaw it, as Congress has repeatedly sought to do, but to express disapproval.

This is especially important when the expression is disgusting and goes against a majority viewpoint.  That is when First Amendment protections are most needed.  We don't need the First Amendment to protect popular or majority viewpoints, we need First Amendment protections to protect the disgusting or even offensive speech.  In 2013, Secretary of State John Kerry offered a defense of freedom of speech, religion and thought in the United States by stating to German students that in America "you have a right to be stupid if you want to be."  He continued, "And we tolerate it. We somehow make it through that. Now, I think that's a virtue. I think that's something worth fighting for," he added. "The important thing is to have the tolerance to say, you know, you can have a different point of view."  This is because an important function of symbolic speech is to invite dispute. Terminiello v. City of Chicago, 337 U.S. 1, 4 (1949).  Moreover, symbolic speech best serves its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.  Symbolic speech should be provocative and challenging.  Terminiello, 337 U.S. at 4.  Such freedom will not cause the disintegration of society but will strengthen it. Johnson, 109 S. Ct. at 2547; Barnette, 319 U.S. at 641-42.  To censor symbolic speech, the State must show more than a desire to avoid the discomfort and unpleasantness that accompanies unpopular viewpoints.  The State must bear the heavy burden of showing the forbidden speech would materially and substantially interfere with the rights of others.  Tinker, 393 U.S. at 511.

Speech communicates an idea.  The Supreme Court has repeatedly observed that there are derivative and corollary rights that are essential to effectuate the expression of ideas which are inherent in the rights expressly enumerated in the Amendment.  See, Lamont v. Postmaster Gen., 381 U.S. 301, 308 (1965).

As has often been said, “actions speal louder than words.”  When actions communicate an idea it is called symbolic speech.  Symbolic speech consists of nonverbal, nonwritten forms of communication, such as flag burning, stripping, wearing arm bands, and burning the flag. It is generally protected by the First Amendment.  Texas v. Johnson, 109 S.Ct. 2533, 2546 (1989); Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969); PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990).  The United States Supreme Court has generally afforded such “speech” the same constitutional protections afforded normal or usual speech.  See, e.g., Brown v. Louisiana, 383 U.S. 131, 142 (1966) (Fortas,J); West Virginia State Board of Ed. v. Barnette, 319 U.S. 624, 642 (1943); Stromberg v. California, 283 U.S.359, 369 (1931).  ). A number of commentators have argued that symbolic speech is more fundamental to a free society then ordinary speech.  See, e.g., F. Haiman, Speech and Law in a Free Society 6 (U.Chi. Press 1981); Rotunda, The “liberal” Label: Roosevelt’s Capture of a Symbol, 17 Public Policies 377 (Harv. U. Press 1968).

This includes the right to protest has been recognized by the United States Supreme Court in perhaps the most famous right-to-protest case of them all, Texas v. Johnson, 491 U.S. 397 (1989).  See also, Virginia Bd. of Ed. v. Barnette, 319 U.S. 624 (1943) (pledge of allegiance), Spence v. Washington, 418 U.S. 405 (1974) (attaching a peace sign to the flag), Stromberg v. California, 283 U.S. 359 (1931) (displaying a red flag), and Smith v. Goguen, 415 U.S. 566 (1974)
Here are some particularly disgusting conduct which is nevertheless protected speech.  In Snyder v. Phelps 131 S. Ct. 1207 (2011).   The Westboro Baptist Church believe that God punishes the United States for its tolerance of homosexuality, particularly within the military.  Mr.  Phelps therefore picketed at military funerals of veterans like Lance Corporal Matthew Snyder, who was killed in the line of duty in Iraq in 2006. Westboro picketed Matthew Snyder's funeral displaying signs that stated, for instance, "God Hates the USA/Thank God for 9/11," "Thank God for Dead Soldiers," and "Don't Pray for the USA."   Phelps was arrested and  argued that his speech (the picketing and the signs) was protected under the Free Speech Clause of the First Amendment to the Constitution.  The Supreme Court  held that the Phelps and his followers were "speaking" on matters of public concern on public property and thus, were entitled to protection under the First Amendment.  Likewise, with Rapkin she was clearly responding to an issue of public concern on public property so that her action to communicate her disagreement with the protestors entitled to protection under the First Amendment.

But what about racist expressions?  Racist speech, like hate speech, can be protected speech.  In Matal v. Tam, 137 S. Ct. 1744 (2017) Justice Samuel Alito (for four justices) explained
 [The idea that the government may restrict] speech expressing ideas that offend … strikes at the heart of the First Amendment. Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.”

Justice Anthony Kennedy wrote separately, also for four justices, but on this point the opinions agreed:

A law found to discriminate based on viewpoint is an “egregious form of content discrimination,” which is “presumptively unconstitutional.” … A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the government’s benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.

That is why even racists, like the Nazis, must be allowed free speech.  National Socialist Party of America v. Village of Skokie, 432 U.S. 43 (1977). is a United States Supreme Court case dealing with freedom of speech and freedom of assembly of the Nazi Party parading through predominantly Jewish Skoie. ILL. Collin v. Smith, 578 F.2d 1197 (7th Cir. 1978). and Smith v. Collin. 439 U.S. 916 (1978) (denying certiorari).

These cases clearly demonstrate the answer to racist speech is not censorship but voices of reason raised against racism.


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DEBUNKING THE VOTER FRAUD MYTH

5/20/2020

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DEBUNKING THE VOTER FRAUD MYTH

"Sensationalist claims have circulated this election season about the extent of voter fraud, with some politicians going so far as to tell voters to fear that this November’s election will be “rigged.” Because electoral integrity is one of the elements necessary to making America the greatest democracy in the world, claims like this garner media attention, and frighten and concern voters.But putting rhetoric aside to look at the facts makes clear that fraud by voters at the polls is vanishingly rare, and does not happen on a scale even close to that necessary to “rig” an election."
https://www.brennancenter.org/sites/default/files/analysis/Briefing_Memo_Debunking_Voter_Fraud_Myth.pdf
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COVID 19 PROTESTS, SCIENTIFIC IGNORANCE AND FLAWS IN THE CRIMINAL SYSTEM

5/13/2020

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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.
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STOPPING COVID 19 BY ATTACKING THE PLACES WHERE IT IS MOST CONCENTRATED

5/2/2020

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Wisconsin is trying to address the COVID 19 pandemic by shutting down places where the disease is most easily spread among large groups of people.  That makes sense.

But what does not make sense is Wisconsin refusing to address the places where the disease is most easily spread among large groups of people.  Jails and prisons.  The deadly problem is getting worse in prisons. The number of prisoners who have tested positive for the virus grew by more than 50 percent in the past week. The first COVID-19-related death in a prison came on March 26. Since then over 215 prisoners have died from complications of the virus.  In Wisconsin, there have been at least 18 cases of coronavirus reported among prisoners in Wisconsin.

While we know considerably more about how many prisoners are getting sick, another group of people is at risk in these facilities: correctional officers and other workers. We know even less about how the virus is affecting them, though they have the potential to carry the virus both into facilities and back into their communities. It’s difficult to assess how prison workers are being affected because many aren’t being systematically tested.

Nevertheless, the Wisconsin Supreme Court rejected (interestingly enough by remote appearance) the lawsuit to release inmates to prevent spread of COVID-19.  This despite in other states inmates have been temporarily released to avert the spread of the disease.  The lawsuit explained that the first confirmed COVID-19 cases have appeared in the State’s overcrowded prisons -  eleven department of corrections staff and four prisoners have been diagnosed with the disease.1 At least nine inmates and five staff have the disease at Wisconsin county jails.  This is a warning sign that immediate, drastic action is needed.  In a declaration accompanying the lawsuit, Dr. Amanda M. Simanek and Dr. Lorraine Halinka Malcoe, both professors of epidemiology at the University of Wisconsin-Milwaukee stated: “as epidemiologists and public health professionals, we urge actions to safely and rapidly reduce Wisconsin’s prison populations in order to minimize the risk of severe outbreaks of COVID-19 – and especially hospitalizations and deaths – among incarcerated persons as well as correctional staff. The time for action is now.” 

Interestingly enough, at least 1,324 confirmed coronavirus cases are tied to prisons and jails across the United States, according to data tracked by The New York Times, including at least 32 deaths.  “The jail in Chicago is now the nation’s largest-known source of coronavirus infections, according to data compiled by The New York Times, with more confirmed cases than the U.S.S. Theodore Roosevelt, a nursing home in Kirkland, Wash., or the cluster centered on New Rochelle, N.Y.”

A model of the spread of COVID-19 inside prisons from the nonprofit Recidiviz suggests that hospitals will soon be overwhelmed by a deluge of sick prisoners—further burdening already overwhelmed healthcare systems, and preventing sick people on the outside from accessing care when they desperately need it.  Looking at current counts of people in jails and prisons alongside this model, it seems that more than one-third of the public hospital beds in the nation could be in use by prisoners in less than three weeks.

Simply put, releasing prisoners  now means less prisoners taking hospital space so more free people will be able to get into the hospital when needed

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WHATS A CITIZEN TO DO WHEN SHERIFFS CANNOT AGREE ON WHETHER SOMEONE SHOULD BE ARRESTED?

4/29/2020

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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). 
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What is a an executive order under Wisconsin law

4/17/2020

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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)
 
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PROBLEMS OF JURORS APPREARING AT TRIAL ON LINE

3/31/2020

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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.

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MARSY’S LAW: WELL INTENTIONED BUT MISTAKEN LAW

3/29/2020

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In the worst act of domestic terrorism in American history Timothy McVeigh stood charged with bombing the Alfred P. Murray Federal Building, in Oklahoma City, which took the lives of a hundred and sixty-eight people and injuring some seven hundred.  During the trial of Timothy McVeigh, a mother described her conversation with an employee from the medical examiner’s office about whether she would like it to return her four-year-old deceased daughter’s hand found in the rubble. The testimony was so emotionally powerful that it brought not only the witness to tears but also the jury, courtroom reporters, and the judge.  Wayne A. Logan, Through the Past Darkly: A Survey of the Uses and Abuses of Victim Impact Evidence in Capital Trials, 41 ARIZ. L. REV. 143 (1999). 
 
Understandably, there was intense media interest in the case.  Robert Nelon, a First Amendment lawyer at the firm Hall Estill in Oklahoma City who represented a coalition of national news media in the case said, “The media interest was extraordinary.  Reporters covered the rescue and recovery, the personal stories of victims, the response of police and fire units, the cooperation of public officials and outside groups like the Red Cross, and the motivations of McVeigh and [accomplice Terry] Nichols.”  Stephen Jones, the lead defense attorney for McVeigh, said “The media interest was extraordinary, Reporters covered the rescue and recovery, the personal stories of victims, the response of police and fire units, the cooperation of public officials and outside groups like the Red Cross, and the motivations of McVeigh and [accomplice Terry] Nichols.”
This media interest was so intense, that Judge Richard Matsch announced on the first day of the trial, “This is not theatre.  This is a trial.”
 
So what is a criminal trial?  As Judge Matsch said criminal trials are supposed to be about the evidence produced in a case, not the emotions produced by the case.  As the U.S. Supreme Court has made clear on a number of occasions, it is of some “importance that decisions be, and appear to be, based on reason rather than caprice or emotion.”  Gardner v. Florida, 430 U.S. 349, 349 (1977).  A citizen is on trial for a social wrong which allegedly deprived another citizen of a life or property.  It is not a harm between two individuals but a harm to society as a whole.  That is why the citizen who has been wronged is not represented by an individual advocate but by an impartial representative who is supposed to represent society as a whole. 
 
This puts a public prosecutor in a vastly different position than an attorney simply representing a party in a case.  “The State, when it becomes the party in a criminal prosecution, occupies a very different position from a party plaintiff in a civil action. It is as much interested in vindicating the innocence of one wrongfully accused, as in convicting one who is really guilty. The sole object of the prosecution is, to ascertain the truth, and to maintain the law. Its process should be as ready, therefore in behalf of the accused, as against him, for the sole purpose of such process is, to procure the attendance of witnesses, by whom the truth is to be established”  West v. The State, 1 Wis. 209, 232 (1853).
 
As Judge Matsch explained, twelve people are selected to look at the evidence and decide the guilt or innocence of the other citizen.  Judges tell Wisconsin juries their decision should be “based upon reason and common sense” and not on “on mere guesswork or speculation” or “personal feelings.” Specifically, a judge tells the jury to “decide the case solely on the evidence offered and received at trial” using their “soundest reason and best judgment” to reach a verdict.  A jury is told not to “be swayed by sympathy, prejudice, or passion” but to “act with judgment, reason, and prudence.”  Finally a judge tells the jury that “these rules are intended to assure that jurors remain impartial throughout the trial.”
 
So what if there is a movement, as exemplified by the Marsy law movement,  to decide a case not on evidence but on sympathy, prejudice, or passion?  Can citizen on trial be prohibited from introducing evidence which would show the citizen was not guilty?  Should an impartial public prosecutor be replaced by a private attorney Is such a law which so drastically changes other constitutional rights currently being used in Wisconsin criminal trials constitutional?
 
The Montana Supreme Court has said “NO.”  A constitutional amendment which so broadly amended multiple sections of Montana’s Constitution was found unconstitutional.  Montana Ass’n of counties v. State, 2017 MT 267, 404 P.3d 733 (2017).  “Although well intentioned,” explained petitioner and Lewis and Clark County Attorney Leo Gallagher, “the process leading to CI-116’s passage deprived Montana voters of the ability to consider the many, separate ways it changed Montana’s constitution or explain the significant administrative, financial, and compliance burdens its unfunded mandates imposed upon state, county and local governments while jeopardizing the existing rights of everyone involved with the criminal judicial system.”
 
Marsy’s Law misstates and misunderstands what is fairness.  Marsy’s Law represents an appeal to
personal feelings and an attempt to decide a case not on the evidence of what did or did not happen but by sympathy, prejudice, and passion.  It is a false distinction to try and equate “victim’s rights” to the rights of those accused of a crime.  The U.S. Constitution and all 50 state constitutions guarantee defendants’ rights because they are rights against the state, not because they are valued more by society than victims’ rights. Defendants’ rights only apply when the state is attempting to deprive the accused – not the victim – of life, liberty, or property. They serve as essential checks against government abuse, preventing the government from arresting and imprisoning anyone, for any reason, at any time.  Marsy’s Law does nothing to check the power of the government but provides rights against another individual.  This is the current approach of the Wisconsin Constitution.  Wisconsin Constitution Article 1, Section 9m:
 
Victims of crime. Section 9m. [As created April 1993] This state shall treat crime victims, as defined by law, with fairness, dignity and respect for their privacy. This state shall ensure that crime victims have all of the following privileges and protections as provided by law: timely disposition of the case; the opportunity to attend court proceedings unless the trial court finds sequestration is necessary to a fair trial for the defendant; reasonable protection from the accused throughout the criminal justice process; notification of court proceedings; the opportunity to confer with the prosecution; the opportunity to make a statement to the court at disposition; restitution; compensation; and information about the outcome of the case and the release of the accused. The legislature shall provide remedies for the violation of this section. Nothing in this section, or in any statute enacted pursuant to this section, shall limit any right of the accused which may be provided by law. [1993 J.R. 2, vote April 1993]
Marsy’s Law has no comparable language.

Wisconsin’s constitutional provision is similar to what was done in New Hampshire.  In New Hampshire victims’ rights statute preempts conflict between rights by stating that victims’ rights shall be enforced “to the extent . . . they are not inconsistent with the constitutional or statutory rights of the accused.” This language recognizes that victims’ rights may come into conflict with defendants’ rights and that our justice system works only if defendants’ rights against the state are upheld.
 
But, here is the worst problem as pointed out by Montana Supreme Court Justice Jim Nelson. In enforcing the victim's constitutional rights, the defendant’s constitutional rights may be violated. For example, the victim can do that by preventing the defendant’s counsel from interviewing the victim and some witnesses. If the defendant’s constitutional rights to a fair trial, to due process, to effective assistance of counsel, to confront and meet accusers and witnesses face to face and to compulsory process for witnesses, both wisconsin and Federal Constitutional law may require that the charges against the defendant be dismissed or may require a second trial -- the victims’ rights notwithstanding. That, obviously, is the last thing a crime victim needs.
 
Finally, there are existing laws much better than Marsy’s law at protecting the rights of alleged victims.  The Wisconsin and New Hampshire approachs are much better than Marsy’s Law.  And it is cheaper having to correct all the errors in Marsy’s law.  South Dakota had to engage in the taxpayer paid process of revising Marsy’s Law after it initially passed.  Montana Supreme Court Justice Jim Nelson called Marsy’s Law “A solution in search of a problem.” He explained: “Montana’s Legislature has already enacted a comprehensive body of laws that provide virtually the same victim’s rights as does I-116.” The issue is not that victim protections have not been legally prioritized. They are. Enforcement must improve and those responsible for enforcement must be held accountable. Creating a duplicative law in no way ensures that enforcement of these statutory protections will improve.  As Justice Nelson points out, “If victim's rights are truly a concern, then voters and victims should insist that the present statutory protections be adequately funded and enforced. There is always the remedy of the ballot box for public officials who won’t perform their duties.”
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