The reason we have Public Defenders Offices covering virtually every jurisdiction in the United States which puts people in jail for criminal violations, local, state, and federal, is because of a case called Gideon v. Wainwright (1963).
Until this famous case, people accused of a crime who could not afford an attorney languished in jail or pled guilty to violations they did, may have, or did not, commit. Separating the good potatoes from the bad potatoes without an attorney was difficult, only these weren't potatoes, they were people.
Starting with the death penalty, the Supreme Court required the assistance of counsel as a matter of the Sixth Amendment right to counsel, incorporated through the due process clause of the Fourteenth Amendment to apply to the states, not just the federal government. The Bill of Rights was originally adopted to restrain the federal government only. Barron v. Baltimore. The first right to be incorporated was the First Amendment, in Gitlow, without much discussion of this new move. Later almost all of the other FA rights were slowly incorporated, one at a time, selectively, to the frustration of Justice Hugo Black who thought they should all be incorporated at once.
One right after another was deemed "fundamental" to "the ordered concept of liberty," a Supreme Court invented construct in Palko v. Connecticut. This is the famous "incorporation doctrine" that law students of the '60s studied, wondering which was next, while practicing attorneys did a lot of work pushing for incorporation as to any as yet unincorporated doctrine that might help their convicted client.
With few exceptions, the Bill of Rights now protects individuals from state oppression as well as federal.
Oppressive is what we call a justice system that unjustly punishes even supposedly guilty people after denying legal safeguards that today we take for granted.
The current example would be the use of torture administered either by us after 9-11, or some of our more thuggish allies, such as Egypt, to whom, according to Jane Meyer's extraordinary expose, "Outsourcing Torture, The Battle over Extraordinary Renditions," in the New Yorker of Feb. 14 & 21, 2005.
September 11 seems to have brought out our worst demons, causing us to abandon the rule of law, which protects all people, including the bad guys, when captured.
UC Berkeley law professor John C. Yoo, a deputy attorney-general in the Bush Department of Justice, Yale Law graduate, and former clerk to Justice Clarence Thomas, is quoted as favoring the outlawing captive terrorists, meaning depriving them of the rule of law when captured, if not assassinated first.
He points to pirates and slave traders as examples of outlaws who should have been dealt with summarily and perhaps were after those activities were outlawed. That, however, was before the civilized world, which included us, entered the Geneva Conventions, which make no such distinctions. The Bush Administration has deemed them not to apply to its newly invented "enemy combatants" category. If Slobodan Milosevich committed torture of American soldier captives, or any captive, on such a pretext, we'd have him up on war criminal charges, which in fact he is.
Torture, in other words, either by us, or friends to whom we hand suspected terrorists over to do the wet and dirty work for us, is not only allowed, it is encouraged. We just don't call it torture, as though this is such a tough concept to grasp for those not undergoing the painful process.
We gain dubious intelligence at the cost of our soul and wonder why the world, such as Europe, turns against us.
Prof. Alan Dershowitz, no shrinking violet when it comes to confronting the horrors of the real world, decries the hypocrisy with which we approach the subject of torture.
He's not against torture, so much as he's against hypocrisy.
He is reported as holding the view that torture should be allowed when necessary, but that instead of allowing some anonymous covert operative to give the order, a torture warrant should be signed by a high-ranking administration official, pehaps an elected official, such as President Bush, to insure that torture committed in your name and mine and that of the United States, is authorized by us, not some misguided low-ranking fool.
Dershowitz seems to want authorization by a high-ranking fool, instead.
His suggestion at least has the merit of eliminating the hypocrisy. Perhaps he could turn his powerful attention to the reasons why there are some roads we'd best not go down, because torture induced intelligence is useless and it turns us, the torturers, into criminals.
When the godfather tells his soldier to rub out a turncoat, the godfather is as guilty as the button-man. Conspiracy and aiding-and-abetting are the operative terms in criminal law. Vicarious liability, it's called, and the godfather is charged as a principal under it.
Such are the implications when we sneer at "human rights" because the latest iteration seems new, expensive, and crazy. We think this usually because we haven't given it enough thought.
Our consciousness, and conscience, hasn't been raised.
We've been asleep and morally blind.
Known principles of humanity have not been applied.
"Attention must be paid." Arthur Miller passed away this week. The line is from his Death of a Salesman.
A wonderful political cartoon the other day has Secretary of State Condoleezza Rice proclaiming to France's Chirac and Germany's Schroeder that Pres. Bush now forgives them for being right about the lack of WMD in Iraq.
We're on the subject of the extension of human rights, of which the right to counsel is a very important one, and how silly each new extension seems to those who haven't given it much, if any, thought. Constitutional Law is the story of each extension, whether little or large. Yesterday's outlandish joke becomes today's essential right, taken for granted.
Anthony Lewis, the NYT reporter who covered the Court in the '60s, wrote an excellent book about Gideon v. Wainwright, called "Gideon's Trumpet." At the time, many mainstream people thought it outlandish to provide costly legal representation at public expense to millions of law-breakers.
"You mean we're going to prosecute and defend them at the same time? How crazy is that?"
That's exactly what we mean and it isn't crazy. New and strange perhaps, but not crazy.
Of course, once Gideon gets a lawyer, he finally gets a fair trial and the jury acquits. There probably wasn't a dry handkerchief on the cell block.
In the TV version, the defense attorney was played by the same actor who played the prosecutor in one of the world's great courtroom crime dramas, "My Cousin Vinnie." Some people remember cases, I remember movies, which are usually more entertaining.
But if you enjoy a McDonald's cheeseburger from time to time, with fries and a large drink, you might want to remember this case, out of London, in which McDonald's is bad-mouthed, sues, and loses, at least in the Court of Public Opinion, where the twin arches butters its bread.
In a recent item here on the European Union, I posted a link to the European Charter of Fundamental Rights and referred to the European High Court of Human Rights in Strasbourg. In some cases, notably individual civil rights, I observed that there appeared to be human rights gap between the EC and the US, with them ahead of us in some areas.
Well, guess what; in Europe you get a public defender to represent you in some civil cases. If you think that's good, why, then, there's an example of the human rights gap I was noting.
Check this account of the latest round of a celebrated defamation case, begun in London, in which McDonald's, the hamburger chain, sued a couple of characters for allegedly defaming it. The case has been going on since 1990. Charles Dickens would be proud. So are human rights activists.
Freedom of expression is fundamental to so many, make that all, other rights, that it has to be taken very seriously. In this example, expression is being put on a par with criminal cases when it comes to the need for an attorney to protect the right.
Under BOSE CORP. v. CONSUMERS UNION OF U.S., INC., 466 U.S. 485 (1984), U.S. appellate courts will independently reweigh the evidence supporting a libel verdict. That doesn't happen in death penalty cases.
An update and further explanation from the NYT, here.
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Quote, 2/15/05, from:
THE BRITISH HERALD
BRITISH libel laws could face a radical shake-up after a court ruling yesterday that two environmental campaigners were denied a fair hearing in their long-running McDonald's defamation action.
The European Court of Human Rights said the denial of legal aid in libel cases, which applies in Scottish and UK law, was unfair and breached their rights to freedom of expression.
The verdict from the Strasbourg court was a victory for the "McLibel Two" from north London. Helen Steel, 39, a former gardener, and David Morris, 50, a former postman, had claimed the libel laws stifled their right to a fair trial and favoured the rich.
The court decided they did not receive a fair trial as guaranteed under the human rights convention, to which the UK is a signatory, because they were denied state help in legal costs, for which they would have qualified in other civil cases.
Legal experts said last night that the ruling would open the door to both defenders and pursuers claiming the right to legal aid in all defamation and libel cases.
Both the Scottish Executive and officials at Westminster said they would be studying carefully the detail of the decision before deciding whether existing laws needed to be altered.
The legal wrangle, the longest civil or criminal action in English legal history, started when the multinational decided to act against the duo, who handed out leaflets 18 years ago containing damaging allegations about McDonald's.
The libel action was launched in 1990 and ended only in 1997 after 313 days in court.
The Strasbourg court said that the pair appeared to have been "articulate and resourceful" and were able to prove the truth of a number of the statements complained about, having received some free help on legal and procedural aspects from barristers and solicitors.
But "in an action of this complexity, neither the sporadic help given by volunteer lawyers nor the extensive judicial assistance and latitude granted to the applicants as litigants in person, was any substitute for competent and sustained representation by an experienced lawyer familiar with the case and with the law of libel".
The pair said in a statement: "Having largely beaten McDonald's and won some damning judgments against them in our trial, we have now exposed the notoriously oppressive and unfair UK laws.
"As a result of the ruling today, the government may be forced to amend or scrap some of the existing UK laws."
Kirsteen MacLeod, a defamation specialist with Burness, the Scottish legal firm, who has followed the case closely, said libel laws would have to be re-examined in light of the ruling.
"What this says is that those in the future who are involved in a libel action and cannot get legal aid are being denied a fair trial," she said.
The cost to the taxpayer of civil legal aid cases in Scotland has dropped from £20.3m in 1999/2000 to £18.6m in 2003/04. Legal aid is available in some civil cases as long as there is a case to answer and applicants' disposable incomes must be less than £9475 a year.