Supreme Court: 6th Amendment optional again

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First an overview — here’s the full text of the 6th Amendment to the U.S. Constitution (emphasis added to relevant sections for this post):

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

 
The U.S. Senate website handily provides a plain-English summary of the modern rights derived from this amendment. One of them is that:

Defendants in criminal cases are entitled to public trials that follow relatively soon after initiation of the charges.

This is intended to make sure that people aren’t jailed indefinitely without charges or a trial, as well as to minimize the risk of keeping innocent people in jail for years before a jury can get them freed.

The other key right to note is the right to have legal counsel help a defendant with his or her defense, a right which was extended to apply to state cases through the 14th Amendment (which imposes the U.S. Bill of Rights onto every state).

The Supreme Court first applied this latter part to state cases in a (possibly inadvertently) narrow ruling in Powell v. Alabama (1932), in which they found that in capital cases — ones where the death penalty was on the table — defendants must have access to their lawyers to plan a defense.

But defendants in non-capital cases were not really covered in that opinion, and low-income defendants in general were left to fend for themselves in obtaining counsel until a much later decision in Gideon v. Wainwright (1963), the subject of the film “Gideon’s Trumpet.” In that case, the court ruled that states had to provide (i.e. pay for) legal counsel for those who did not have their own lawyers, in order to fulfill the spirit of the 6th Amendment requirement, even if they weren’t actively denying access to counsel.

With everything that was going on earlier this year, I completely missed a horrid new Supreme Court ruling which functionally wipes out the public defender right found in Gideon v. Wainwright — as well as the right to a speedy trial. Granted, the public defender system wasn’t close to being a smoothly operating system to begin with, but the Supreme Court effectively announced there won’t be consequences for blatant violations, so it’s just up to the good will of the local governments to follow through.

In this case, a man in Louisiana was not given a trial for seven years, which is by no means a “speedy trial.” When he sued, the state admitted in the lower courts that the reason for the delay was on them and their failure to adequately fund and provide him legal representation. Later, during appeals, they tried to retract this admission and lay the fault on the defendant, saying he had repeatedly delayed the trial. Seven years is an awfully long time, and it’s hard to imagine a defendant trying to delay his own trial for that long — unless perhaps he understood that it was the only way to ensure he actually received some kind of representation.

Nevertheless, the Supreme Court said the State of Louisiana didn’t need to provide any compensation for the defendant for failure to provide a speedy trial and didn’t really punish it for failure to shore up its clearly inadequate public defender system.

And so it was that five justices decided this year that there don’t really need to be consequences for states who don’t execute the requirements laid forth in Gideon v. Wainwright. And that’s a problem — because the whole point of that decision was that failure to provide legal counsel to a defendant who doesn’t have his own, due to circumstance, translates in practical terms to failure to uphold his 6th Amendment right “to have the Assistance of Counsel for his defence.”

So now, after this ruling, what incentive do states have to maintain their public defender systems? Not much. Because there are also no consequences now for failing to provide a speedy trial, states can maintain the illusion of not denying access to counsel by just indefinitely postponing a trial.

The only likely consequence of that is the cost of imprisoning the defendants. But most states probably figure these people would go to prison anyway after their almost inevitable plea bargains, arranged by their hurried public defenders, and so that’s a wash. Plus, given the number of states heavily reliant on for-profit prisons and detention centers — who provide a lot of campaign cash to judges and legislators — there’s even less incentive to speed up the process.

I miss the old Supreme Court rulings when they still understood the difference between a literal interpretation of text and an interpretation that factors in functionality and real-world practice. Without a public defender, if you’re poor and can’t afford a lawyer, you don’t get “Assistance of Counsel.” That’s the real-world reason we have public defenders now in state cases.

Think of the moment on all those crime procedural shows when the low-income suspect (whether guilty or innocent) clams up during interrogation and asks for a lawyer. Earlier in the episode, of course, we probably saw the person get a warning (during their arrest) that they have the right to an attorney — and that if they cannot afford one, one will be appointed for them. So, on paper, we know and the character knows that they can ask for an attorney to be present during questioning. At that point, the detective character will usually say something about how the defendant should just answer the questions now to save the time and trouble of waiting for hours before the public defender shows up.

Because, off paper, this is how it really works. Nobody wants to sit around silently in an interrogation room for hours, so they start talking without their constitutionally-guaranteed counsel assisting them. Even if they’re actually innocent, they will probably say something that can (and will) be used against them in a court of law.

Now imagine that instead of it taking a few hours to see a lawyer, the public defender doesn’t show up to provide assistance until seven YEARS later. That’s not a 44 minute TV episode. This is the problem the country faces today. If you can’t afford your own lawyer, that’s just too bad for you, because it’s totally luck of the draw on whether and how fast you’ll ever see one.

The system needs to work better than this, and there ought to be consequences for states for being so lax about upholding their end of the deal that it doesn’t do the job it was created to do. But the Supreme Court doesn’t see it that way. As long as you eventually get a lawyer, even years later, a majority of the Supreme Court feels that your right to counsel has been met. And don’t even ask about a speedy trial. If you had wanted that, you should have waived your right to counsel and pled guilty.

Summary of NYT’s Benghazi report

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libya-flagThe huge New York Times investigation into the 9/11/12 Benghazi attack was released today. Here’s the super short version of the key findings:

Months of investigation by The New York Times, centered on extensive interviews with Libyans in Benghazi who had direct knowledge of the attack there and its context, turned up no evidence that Al Qaeda or other international terrorist groups had any role in the assault. The attack was led, instead, by fighters who had benefited directly from NATO’s extensive air power and logistics support during the uprising against Colonel Qaddafi. And contrary to claims by some members of Congress, it was fueled in large part by anger at an American-made video denigrating Islam.

 
The full article is rather long — though I do recommend reading it fully — so I’ve also provided a more detailed summary below.

While Susan Rice’s initial theory connecting the Benghazi raid to the anti-Muslim video was quickly discarded by people — mostly Congressional Republicans — eager to tie the attack to al Qaeda, it seems pretty likely now (based on many eyewitness accounts) that it was in fact the spark and the 9/11 anniversary was coincidental. Meanwhile, al Qaeda has never even internally claimed responsibility for the attack, and their documents as well as phone intercepts seem to indicate they had not been able to establish a foothold locally yet and were surprised when the attack unfolded.

Instead, the attack was haphazardly and quickly planned in the preceding days (and partly improvised that night) by local groups — not al Qaeda or any foreign group — and the impromptu signal to attack was the news coming over Egyptian satellite TV that Egyptian protesters (against the video) had gotten inside the Cairo compound by that evening.

In contrast to the heavily defended U.S. Embassy in Egypt, the Benghazi consulate (in Libya) was virtually unprotected that night. Angry gunmen from nominally pro-U.S. local groups quickly joined into the attack, after falsely hearing that U.S. guards had shot peaceful demonstrators protesting the video. The video seems to have been the straw the broke the tenuous back of U.S. relations with the many unpredictable and heavily armed local factions (or at least their foot soldiers). When the few remaining dedicated pro-American gunmen arrived to try to stage a rescue of U.S. personnel, they were heavily outnumbered and forced to turn away.

Certainly, it seems reasonable to say that the consulate and the nearby CIA office should have had much better protection than they did — given that they had almost none — but there was no coverup and there was no pre-planned international terrorist attack to mark the anniversary of 9/11. But I’m sure the New York Times won’t convince anyone who thought it was a vast conspiracy or whatever.

You tried it though.

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Over the years, many a high school principal or administrator has tried — with varying degrees of success — to suppress something their high school’s student newspaper would like to print. Generally, the content in these cases is inflammatory or inappropriate in some way and occasionally even potentially dangerous. Sometimes, the school officials are actually trying to cover something up.

In many cases, the courts have smacked down these administrators for unconstitutional infringements of students’ rights to free expression and free press (such as it is). Whereas other forms of expression can sometimes be limited for being overly disruptive to the learning environment, the courts seem to feel that broadly speaking, student newspaper content is pretty harmless, however important it might seem in the heat of the moment to students and staff inside a little bubble.

Most administrations would probably be better off ignoring anything that’s not outright criminal or endangering someone’s safety, because the suppression — much like the proverbial coverup — is nearly always worse than the “crime” and blows something tiny into a national story.

And that brings us to this week’s openly mockable student newspaper suppression attempt by a misguided high school principal. The reasonably successful high school football team of Neshaminy High School in Langhorne, PA is called the “Redskins,” like the Washington NFL team and the teams of many other backward schools nationwide. In an effort to protest the highly offensive nature of the team’s name, the staff of the student newspaper vowed not to print the school’s team name — following the lead of a number of major real newspapers for the real football team.

Principal Rob McGee responded initially, in November during state playoffs, by informing the student paper that they “[didn’t] have the right to not use the word Redskins.”

A truly laughable attempt. In what way did the principal think he was going to keep a school paper from not printing the name of the school’s football team? There’s no way that order passes constitutional muster. There’s clearly no public harm or student harm in not printing something in a school paper.

I’m fairly certain that any case where the courts have ever ruled against a student newspaper has been to tell them they did not have a right to print some controversial thing. I doubt there’s ever been a ruling saying they had to print something — short of perhaps some discrimination/equal opportunity case.

Unsurprisingly, the students running the paper now have legal representation and plan to reinstate their policy of refusing to use the term. Good luck stopping them, Principal McGee. You tried it though.

GOP vs. Health insurance lobby? Good luck.

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Health-and-Human-ServicesSo now that 2 million Americans are about to be getting private health insurance under the auspices of the Affordable Care Act private plan exchange of next week — with another couple million already getting covered through their parents’ plans — anti-ACA Republicans in Congress are hitting up against the very hard, cold reality that the “repeal” of the law (which wouldn’t be possible for at least another three years) would suddenly take away a lot of people’s insurance coverage. And that would make people super mad at Republicans.

While some Republicans still won’t go quietly into the night, whether due to dogmatic delusion or excessive pandering, the result of this realization is largely another round of trying to say that there’s still a way to repeal-and-replace the legislation, leaving the “good” parts (and the now-immovable exchange) while abandoning the “bad” parts.

These “good” parts are the extremely popular sections of the “Patient Protection” side of the law, which do things like compel insurance companies to cover people with pre-existing conditions and not drop chronically ill patients or cap their coverage, etc. etc. The “bad” parts seem to have been reduced down to the individual purchase mandate (and I guess probably some lesser things like the popular but more controversial contraception coverage requirements).

The one good thing about the crushing strength of the American private health insurance industry’s Washington lobby is that they will never allow through these idiotic Republican proposals to replace the Affordable Care Act. That lobby understands two key truths:
1. this law benefits their industry as currently written by providing lots of healthy new customers and,
2. the replacement proposals keep the most popular but most expensive parts in place, while stripping out the money-making purchase mandate that makes it financially feasible to keep the costly parts going.

The law is — and always has been — a big giveaway to the private health insurance companies. The Republican proposals to “fix” it would take that part away and make it financially unsustainable for the insurance firms (edit: as has already been demonstrated in U.S. overseas territories that lack the mandate).

Those firms benefiting from this law donate a lot of political money. If you’re a Republican in Congress right now, you don’t want to get into a political gunfight with the health insurance lobby, unless you’re a self-funding candidate.

Even the tea party wing is still dependent upon big business. They can’t afford to cross private health insurers at the moment. Plus, what kind of terrible, socialistic legislation would that be, to force private companies to provide many expensive services without subsidies, while taking away their revenue? No good tea partier in Congress worth his or her salt could vote for that.

Toledo, China

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The New York Times today has an interesting article on how the Rust Belt city of Toledo, Ohio — population 280,000 — became a magnet for Chinese industrial, land, and business investments in less than a decade. Hundreds of trade reps and businesspeople have traveled back and forth in both directions, along with political officials. Many millions of dollars worth of investments in Toledo have resulted from these exchanges, as have deeper cultural ties.

In part it was lucky geography and its old manufacturing base:

“They looked on a map, figured out where we were sitting and saw the benefit,” said Mayor Bell, a gregarious former University of Toledo defensive lineman, referring to Toledo’s location near a number of large cities in the United States and Canada. “They could see that this town needed to be helped a little bit and that it could be on the upswing — that there was potential, that they could do something, that it could be incredible and it would not probably take a whole lot to do.”

[…] The city is a major transit hub, crossed by railways and highways, and has the busiest general cargo port in the Great Lakes region. Housing is affordable, and the abandoned factories, including those where windows, bottles and windshields were once made and shipped around the world, mean there is plenty of space.

 
But the city has also hauled in extensive investments with trade missions to China that are out-performing much bigger cities and even state governments. That may be somewhat cultural and because of, not despite, Toledo’s relatively small size:

The city’s informal “handshake culture” has also helped, Chinese and American business officials said, as deals that might unravel amid the bureaucratic machinations of a bigger city can be completed in Toledo in a matter of weeks.

 
It seems that in a globalized world, direct local diplomacy and local trade isn’t just for the cities and communities in the heartlands of the developing world. It’s possible to form such links here at home.

Marriage equality comes to Utah (for now)

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It’s been a good week for marriage equality. On Thursday, New Mexico’s state supreme court delivered a unanimous opinion in favor of marriage equality statewide — not a big surprise given that half the population was already living in counties issuing same-sex licenses due to the lack of a law one way or the other. Then, on Friday, neighboring Utah got a big surprise when a Federal district judge ruled that their 2004 State Constitutional Amendment against same-sex relationship recognition was unconstitutional.

This is the first Federal decision at any level on the issue since the Proposition 8 and DOMA rulings were handed down this year. You should read this excellent analysis of the judge’s very thorough case opinion. (It’s really too bad it’s a lower court opinion that can’t be applied anywhere else directly because it would be great material for a precedent decision higher up. Maybe it will get cited higher up.)

Over a hundred same-sex couples immediately rushed to get licenses on the first day (photos here), with more following in the days after. The state government sought emergency stays from the 10th circuit appeals court, which initially rejected it on the grounds that the initial ruling judge at the district level had to consider a stay first. So same-sex marriages continued in Utah throughout the weekend until he formally rejected the request for a stay.

In the absence of a compelling public interest against allowing marriages to proceed — unsurprising given that they are already in progress in nearby California, New Mexico, Washington and over a dozen other states — the Tenth Circuit followed the district’s lead and by Tuesday had denied a stay three times since Friday. For the state government, that means they’re running out of road fast on blocking this from going into effect during the lengthy appeals process.

The de facto result is that same-sex marriages will continue in Utah until either stayed by the U.S. Supreme Court or until the circuit court actually hears the appeal and then overturns the district court ruling, if that is how it rules.

So what are the chances of either of those happening? The former is pretty unlikely. Liberal Obama-appointee Justice Sotomayor has control over emergency stay requests coming from the 10th circuit. She might choose to refer it to the other justices to prevent a re-application to a different justice, which would inevitably follow a unilateral denial. But even if she does, a majority of the court would have to be persuaded that halting same-sex marriage during the appeals process is an emergency (which is probably unlikely, given that 5 justices didn’t find a reason to block it in the Prop 8 cases or DOMA cases earlier this year, even if they weren’t directly ruling on this broader issue).

As for the possibility of the 10th circuit reversing the lower court ruling after denying a stay, that’s harder to predict. I’m certainly not a court expert, but my guess is that the circuit court level ruling could go either way. I’m not sure of the 10th circuit‘s ideological composition, but I believe it leans conservative, even though half of the active seats were filled by Democratic Presidents due to institutional reasons that favor conservative nominees for Federal seats in states with conservative senators.

Plus, I think the way it works is that it’s a pool of potential judges and there’s no way to know whether the same people who denied a stay get pulled to hear the actual case. Thus, it’s entirely possible that the circuit court will find in favor of the state down the road — although existing marriages would likely remain valid. But that decision is probably a year or two away.

So from here, it gets pretty murky. Remember that it took over four and a half years to get a final decision from the Supreme Court on the legal standing of the Proposition 8 proponents, let alone its constitutionality (which they never actually ruled on). There are also other Federal court challenges pending in other states against their constitutional amendments and related laws. Already, on Monday, another Federal case resulted in a ruling that Ohio must accept valid same-sex marriages performed in other states. Nevertheless, this Utah decision is an important milestone, and there are probably a lot of very happy families right now getting the recognition they deserve. That now state of affairs seems likely to continue during the appeals process.

Another win for the Credit CARD Act of 2009

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In May 2009, President Obama signed into law the Credit Card Accountability Responsibility and Disclosure (CARD) Act, a reform package to protect American consumers from abusive practices, misleading advertising and marketing, and more.

Some elements are enforced by the Federal Trade Commission, an independent regulatory agency dating to the Wilson Administration in the early 20th century Progressive Era. The rest is now enforced primarily by the Consumer Financial Protection Bureau created by the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010. The Bureau, perhaps best known for being a major agenda item by Elizabeth Warren before she ran for Senate, is under the aegis of the Federal Reserve, another Progressive Era institution.

The Credit CARD Act, which passed with bipartisan support not long after the height of the credit crunch and the credit carpet being pulled from under average American consumers, sought to curb a wide range of problematic behaviors by the card companies.

  • Bans Unfair Rate Increases
  • Prevents Unfair Fee Traps
  • Plain Sight /Plain Language Disclosures
  • Accountability
  • Protections for Students and Young People

It also outlined some core principles for regulatory enforcement of the law:

  • First, there have to be strong and reliable protections for consumers.
  • Second, all the forms and statements that credit card companies send out have to have plain language that is in plain sight.
  • Third, we have to make sure that people can shop for a credit card that meets their needs without fear of being taken advantage of.
  • Finally, we need more accountability in the system, so that we can hold those responsible who do engage in deceptive practices that hurt families and consumers.


Since the Credit CARD Act took effect, there have been a number of rulings and enforcement orders by Federal regulators against some of the credit card companies for failure to comply with consumer protections. These include failure to limit consumer fees and charges as required or to change policies on issuance of credit cards to minors and students, as well as violations of restrictions on fees and other terms of gift certificates, store gift cards, and general-use prepaid cards. Companies have also had to ensure their advertisements for private credit reports disclose that free credit reports are already available under Federal law.

Capital One, a particularly egregious employer of abusive practices and a well-known (even notorious) marketer of all kinds of cards and credit services, has been one example of a company forced to settle. The venerable American Express has also been forced to make big payouts for attempting to manipulate settlements and for other violations.

The latter got hit with another order today from the Consumer Financial Protection Bureau — which is good news for the consumers they have misled:

The Consumer Financial Protection Bureau has ordered American Express to pay more than $75 million to settle claims that it charged improper fees and misled its credit card customers over so-called add-on products like identity fraud protection.

American Express will have to refund $59.5 million to more than 335,000 consumers over what the bureau called “illegal credit card practices.” American Express will also have to pay a $9.6 million cash penalty to the bureau, according to a statement issued on Tuesday.

The Dealbook/NYT article above details which practices were cited in the enforcement order from the CFPB. Last year’s settlement by American Express was even bigger, at $85 million.

While it’s unfortunate that AmEx is still trying to mislead its customers and potential customers, in violation of repeated actions by the Bureau and other regulators, the system seems to be working better than before the Credit CARD Act was passed in 2009. Moreover, according to Warren, within the first year or so, most companies began complying with — or even going beyond — the law’s requirements. On balance, consumers are being better protected. And that’s great news for everyone.