Master of One's Own Fate?

Though Boumediene was probably the biggest opinion released by the Court last week, one opinion that may have warranted more coverage was Indiana v Edwards. In an important variation on the Sixth Amendment right to counsel, the Court validated an Indiana judge’s decision that Ahmad Edwards, though competent to stand trial, was not competent to represent himself. Edwards was charged with attempted murder and other crimes following a 1999 incident in which he stole a pair of shoes and fired a weapon at a security guard. In 2000, based on a psychological examination, Edwards was found incompetent to stand trial and committed to a state hospital. In 2002 he was found competent to stand trial, but then a third examination in 2003 found him again to be incompetent. Finally, in 2005 Edwards was found competent to stand trial at which time he asked to represent himself. The trial court denied his request and insisted he accept the assistance of counsel. Edwards was convicted and appealed his denial of self representation. The appellate court agreed with Edwards and ordered a new trial. The Indiana Supreme Court, looking to Faretta, agreed.

The U.S. Supreme Court sided with the trial court, holding that the constitution permits states to insist that an individual, though found competent to stand trial, accept representation where he is not competent to conduct their own trial. In short, the Court accepted the principle that an individual competent to stand trial is not necessarily competent to represent himself.

The Court in Faretta read into the sixth amendment a defendant’s right to proceed at trial without counsel- a right to be the “master of one’s own fate.” Therefore, prior to the Edwards case, a defendant found competent to stand trial qualified to conduct his own trial without the assistance of counsel. In order to be considered competent to stand trial a defendant need only display an understanding of the nature of the proceedings against him, and an ability to consult with his lawyer and assist in his defense. (See Drope and Dusky.) This created a curious situation in which individuals, like Mr. Edwards, who straddle the border between competence and incompetence, ostensibly had the ability to choose to represent themselves in a court of law. This week, the Court tried to balance the defendants right to self representation with the government’s interest in securing a fair and speedy trial, by allowing judges the discretion to decide whether a defendant is competent to conduct their own trial. Justice Breyer, writing for the majority, distinguished between the capacity necessary to simply enter a plea, as was guaranteed in Godinez, and the capacity necessary to conduct an entire trial pro se. Breyer hinted that judges must consider the potential fairness of a pro se trial and “the spectacle that could well result from his self-representation at trial,”

Surely the Edwards case won’t impact a tremendous number of cases. Those individuals who wouldn’t reach the bar necessary to represent themselves would likely prefer to be represented by counsel. Nonetheless, the court makes a clear statement that the right to self representation is not absolute, and by giving deference to trial judges to make a determination of competency without providing a standard for judges to employ, the Court walks a tight line between judicial economy and a criminal defendant’s rights.

Indiana v. Edwards

Posted by Todd Garvey

D.C. Institutes Neighborhood Roadblock to Curb Violent Crime

District of Columbia police initiated a new public safety measure this week in response to a surge of violence in the crime-ridden, Northeast D.C., Trinidad neighborhood. Police have set up road blocks on the main avenue into the neighborhood, stopping all drivers attempting to enter the area and turning away those that can not show a “legitimate purpose” for entering the neighborhood. Officers will stop all vehicles (pedestrians will not be stopped) and ask drivers for proof that they live in the neighborhood, or for visitors, their reason for entering the area. D.C police have described a “legitimate purpose” as a doctors appointment or a church visit. The roadblocks come on the heels of a violent weekend that saw eight killed. The area has already seen 22 homicides this year.

While these roadblocks are of questionable constitutional validity, they certainly highlight the intricate balancing of government and individual interests that accompanies any constitutional question. Clearly D.C. has a strong public safety interest in setting up these roadblocks. With violent crime rising and other less-controversial means not seeming to deter violence, the use of a roadblock could be considered a proportional response in light of the area’s safety concerns. Simultaneously, the roadblock is clearly infringing on the legitimate privacy and travel interests of residents looking to enter their neighborhood.

While the supreme Court has upheld the use of non-discretionary roadblocks in the past, the D.C. roadblocks raise two interesting issues. The first is the extent officer discretion plays in deciding who is granted, and who is refused, entrance into the neighborhood. The second relates to whether the city’s interest in combating violent crime, an interest unrelated to traffic or transportation concerns, justifies the establishment of a all stop roadblock.

The court is always skeptical of unconstrained officer discretion. While random officer stops lacking individual suspicion have been held to be unconstitutional (Delaware v Prouse), roadblock or checkpoint stops have been upheld where officer discretion in choosing who to stop is limited by department policy mandating that every car be stopped, or, for example, every 10^th car be stopped etc. While the roadblock policy here is to stop all vehicles, the officers seem to have been given broad discretion in determining whether individuals have a “legitimate purpose” for entering the neighborhood. They may have no discretion in who to stop, but with no reasonably articulable standard for who to let in, they exercise great discretion in the ultimate decision of admission. “Legitimate purpose” is by no means a substantively restrictive term. Unless the police department has provided officers with a list of what is a legitimate reason and what is not, officers are free to exercise their own discretion in deciding who gets in and who stays out. If individual officers are making these decisions on their own, unconstrained by department policy, the probability of discrimination increases and the validity of the roadblock decreases.

The Supreme Court has also held that roadblocks must be related to a legitimate law enforcement interest in traffic or road related safety. Under this rule, the Court has upheld stops related to stopping drunk drivers (Michigan v Sitz), while striking down roadblocks related to finding drugs (Indianapolis v Edmund). Here the D.C. police have specifically stated stopping violent crime as their reason for establishing the roadblock. The D.C. Attorney General has referenced an effort, upheld on court review, by NYC police to reduce drive by shootings by setting up these type of neighborhood roadblocks as legal precedent for the D.C. stop. But in the NYC roadblocks, a desire to reduce drive by shootings in an area was associated with a legitimate traffic related interest. A desire to reduce general violent crime in the area, as is the case in D.C., though an extremely compelling interest, is not related to traffic or road safety. If the D.C. roadblock is unrelated to traffic safety, it would seem to run astray of Supreme Court precedent.

The question remains whether a strong interest in public safety outweighs the constitutional concerns of potentially discretionary, non-traffic related roadblock. The checkpoints represent just another collision of safety and liberty.

Washington Post: Police Plan Vehicle Checkpoints

Posted by Todd Garvey

Three Minnesota 8th Graders Suspended for Refusing to Stand During Pledge of Allegiance

Last week three Minnesota 8th Graders were given in-school suspension for refusing to stand during the morning Pledge of Allegiance. The Dilworth Junior High School handbook mandates that all students stand for the Pledge, though students are not required to actually recite the the words of allegiance to the flag. The Minnesota ACLU has challenged the school policy, arguing that public school students cannot be punished for refusing to recite the pledge. The district's Community Education Director has expressed his support for the punishment as a "veteran and a United States of America citizen." The School principal allegedly told students it was disrespectful to sit during the pledge with troops fighting abroad. However, legal counsel for the school admits that the school handbook may need to be amended in order to protect student constitutional rights.

The suspensions raise a variety of First Amendment questions. The Supreme Court has heard numerous cases relating to free speech in public schools, most recently the Morse case ("Bong hits for Jesus") out of Alaska. While First Amendment protections for students within school grounds are not as broad as those rights enjoyed by adults in the outside world, students do not shed their constitutional rights at the school house gates. While most are aware that the Court has outlawed school prayer in public schools under the establishment clause, less may remember that the Court has also outlawed mandated participation in the the recitation of the pledge of allegiance. In striking down a school policy mandating participation in the Pledge and salute, the Court in West Virginia Board of Education v Barnette held: "If there is any fixed star in our constitutional constellation it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." Justice Jackson, writing for the majority, held that forcing students to recite the pledge and salute the flag ran counter to the First Amendment. Clearly, the freedom to speak includes the freedom to remain silent.

Had the students been suspended for their refusal to recite the pledge, Barnette obviously would have been controlling and the school policy would have to be overturned. But these students were not suspended for their refusal to recite the pledge. They were suspended for their refusal to stand during the pledge, a pledge they were not required to recite. The question is whether sitting down during the pledge of allegiance, while others stand, constitutes expressive conduct protected by the First Amendment. The Court has defined conduct as "expressive" where there is an intent to convey a particular message and the message would be understood by those who saw it (See Spence v Washington). The circumstances surrounding the facts of this case would seem to favor a conclusion that the students conduct was expressive in nature. The pledge is read every morning, during which time students are asked to stand, ostensibly in support of the the flag and the messages contained within the pledge. Any student who refuses to stand will be conspicuous, with other students and teachers concluding that the student does not support the messages of the pledge or is making some larger comment on American policy (or perhaps just forgot to stand). However, none of the suspended students have voiced the position that there refusal to stand was a form of protest or in any way an expression of their views. One student specifically said he just forgot to stand up. If the students did not intend their conduct to be "expressive" is this just simply a case of a student refusing to stand at the order of a teacher? Teachers legitimately order students to stand for all sorts of reasons. While standing during the pledge reasonably conveys a message of support for the flag, does a refusal to stand during the recitation represent a clear message of protest constituting expressive conduct protected by the First Amendment when the individual does not make clear their reason for remaining seated? Or does the mere act of sitting during the pledge, when the school policy is to stand, convey a clear message.

The inconsistent reactions to the suspensions exemplify the divide in America that currently exists at the intersection of patriotism and free speech and expression. One parent of a suspended student agreed "100%" with the schools decision. Another parent found the suspensions to be "ridiculous". What does it mean to be patriotic? With soldiers fighting in controversial conflicts abroad, the country is still struggling to determine whether patriotism consists of unflinching support for American military policy, unflinching criticism of American military policy , or perhaps something in between.

Star Tribune: 3 Suspended for Not Standing for Pledge of Allegiance
AP: 2 Students in Western Minnesota Suspended over Pledge of Allegiance

Posted by Todd Garvey

Levels of Scrutiny and the 14th Amendment: Carolene Products Footnote 4 just a footnote?

Any law student worth his or her salt knows that SCOTUS applies various levels of scrutiny depending on the nature of the alleged constitutional violation resulting from the challenged law. These “levels of scrutiny” are repeatedly and mercilessly hammered into the heads of con law students across the country. One can easily picture a professor standing at the front of the room recite a due process hypothetical…stop…look up as students look down…and then the inevitable delivery: “Now, what is the right in question, and what level of scrutiny will the court apply?”

To simplify, in a 14^th amendment substantive due process challenge, if a violated right is classified as “fundamental,” the court will apply strict scrutiny, meaning the law must be narrowly tailored to a compelling interest. Non-fundamental due process challenges receive rational basis review, meaning the law must be rationally related to a legitimate interest. In the equal protection realm of the 14^th amendment, laws that discriminate against protected classes receive strict scrutiny. Discrimination of other select groups, i.e. gender based discrimination, receives intermediate scrutiny, meaning the law must be substantially related to an important interest. Finally, where the law is facially neutral, a disparate impact on a certain class does not violate the constitution unless there is evidence of purposeful discrimination. A seemingly simple analytical paradigm to be applied to constitutional challenges.

Crawford v. Marion County, the recent Indiana photo ID voter case, could have fit cleanly into the existing levels of scrutiny paradigm. The main challenge to the Indiana statute was that by requiring voters to present a valid government photo ID, the state law would create a disparate discriminatory impact on the poor and the elderly who could not, for physical or economic reasons, get to the DMV to obtain a valid photo ID or get to the circuit court clerk’s office to cast their provisional ballot. Had this statute constituted a substantial facial discrimination against certain classes of voters, the court would have most likely applied strict scrutiny and the law would have been stuck down under the fundamental rights strain of Equal Protection (see i.e. Harper). But, this law was facially neutral with only the potential for disparate impact. Under Washington v Davis, such laws will only be struck down where there is evidence of purposeful discrimination in the legislative history behind the statute. Many opponents of the bill argue that the fact that every Republican voted for the measure while every democrat voted against it is sufficient to show an intent by Indiana Republicans to discriminate against potential Democratic voters. A mere partisan divide certainly does not constitute sufficient evidence to establish purposeful discrimination. Most floor votes are down party lines in these fractious times. Additionally, the state has presented overriding valid and legitimate, non discriminatory reasons, for passing the photo ID law. The law could have been easily, and in my opinion, more clearly, upheld under this analysis. (Justice Scalia, joined by Justices Thomas and Alito, came much closer to this line of reasoning than the main opinion.)

SCOTUS apparently did not agree. In Crawford, the court took what could have been a simple application of the above outlined standards, and turned it into an amorphous, indeterminate, and ambiguous balancing of interests. Certainly, the levels of scrutiny do not provide for clear cut standards, but the paradigm at least provided a hierarchy of review for interests of varying values. The levels of scrutiny force the court to clearly identify the gravity of the government interest and the closeness of its relation that would be required to sustain the law. Instead, the court used the test they have applied in previous voting cases, stating that it would uphold the law where it was “justified by relevant and legitimate state interests ‘sufficiently weighty to justify the limitation.’” What does this mean? Is this an application of rational basis review? Is a relevant and legitimate interest different from a legitimate interest? Is there no “fit” requirement in this review? What does the court mean by sufficiently weighty? With what type of eye is the court deciding what constitutes a sufficiently weighty justification? Is there a presumption of validity in this test like in rational basis review or is the court engaging in a searching and skeptical analysis as in strict scrutiny? There was no discussion of whether the court would apply strict scrutiny or rational review, though the court did borrow the “legitimate interest” language form rational basis review. Instead, the court simply considered the state’s interests, that of deterring voter fraud and maintaining public confidence in the state election system, and, without classifying the interest or placing the interest within the levels of scrutiny hierarchy, came to an arbitrary determination that the state interest was “sufficiently weighty.” Still, the Stevens opinion gives us more guidance than the standard of review used by the dissenters. Justice Souter writes, “we have avoided pre-set levels of scrutiny in favor of a sliding-scale balancing analysis: the scrutiny varies with the effect of the regulation at issue.” Such language is a law student’s nightmare.

The standard of review paradigm is by no means perfect, but it constitutes an analytical standard and engenders more predictability and clarity than the ad hoc balancing of “weighty interests” that the Court has used in voting rights cases. The process used to get the result is often much more important than the final outcome, especially when Courts apply the reasoning, more than the disposition, in future cases. The same question that is asked of con law students across the country should be asked of Justice Stevens and the majority opinion: “Now, what is the right in question, and what level of scrutiny has the court applied?”

The full text of Crawford v Marion County Election Board is available here.

Posted by Todd Garvey