Wednesday, November 30, 2005

The 6th Amendment And Durance Vile

Amendment VI: 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 defense.

If ever any amendment to our Constitution has taken a severe beating, to the point of death, then it is a certainty that it is the 6th Amendment. No other Amendment is so routinely ignored by judges, lawyers, jurors, and the judicial system itself, as this one is ignored. The saddest thing is that no efforts are ever made to conceal the abuses of the 6th Amendment, indeed, it is so commonplace now, that most people take it as a matter of course that the abuse is the norm.

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial..."

This is one of the fundamental rights laid forth in the Bill of Rights by our Founders. An essential liberty that incorporates basic fairness, as well as fiscal and societal responsibilities. If an accused person is imprisoned until their trial then the State bears the responsibility of supporting that person until the trial, often at considerable expense to the taxpayer. And while that person is imprisoned their family also suffers economic depravation that may require them to seek public assistance for their very survival; this is especially so in the case of the poor. And when the accused has been released on bail this should apply as well, since the incentive to "jump bail" is much greater, even if they are innocent.

It is in the best interest of all parties, but especially the taxpayer, that trials be swift. Today though prosecutors will stretch cases out as long as possible in the hopes of cutting a deal with an accused person or to make sure that an appropriate amount of exposure is provided for the case by the media, thereby slanting public and jury opinions in their favour.

Many states have speedy trial laws in addition to the 6th Amendment. My current state of residence is one of them. A few short weeks ago I watched as a tough, law and order prosecutor completely dropped the ball and failed to bring case against an accused murderer to trial in time. The accused is now free, walking the streets and having, one assumes, a happy holiday season. Of course, the same cannot be said for his victim, may she rest in peace.

Since the advent of the USA PATRIOT Act even this fundamental right has been assailed. Recent trials of "suspected" terrorists have had large portions of their proceedings closed to the public, ostensibly for reasons of "national security". While this is within the bounds of reason for the court, it has been pointed out that it is the prosecution who has requested these closures. The right to a trial in public, as protected by the 6th Amendment, is a right which belongs to the defendant, not to the prosecutor. We are also endangering this particular amendment with the current administration’s continued threats to move the trials of "suspected terrorists" to secret military tribunals. The 6th Amendment was included in the Bill of Rights because our Founders had seen the English Court of Star Chamber and the French lettre de cachet and the abuses these heaped upon basic liberties.

"…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...."

Other than the "impartial jury" section, this is one of the few parts of the 6th that sees relatively little abuse. The few times that a case is sent to a court outside of the area in which the crime was committed it is in an effort, usually in vain, to obtain a semblance of a fair trial. Finding an impartial jury, though, is a virtual impossibility in this day and age. With the sheer volume of information that is transmitted and seen on a daily basis by the average citizen the chances of a person being unbiased or uninformed in a jury trial is virtually impossible. When even the smallest crime makes the 6 o'clock news what is a person to do? Trust to the good will of their fellow man to be impartial in a day and age where everyone has a reasonably informed opinion?

"…to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor…"

Somebody get the ointment. This poor section of the 6th has taken the world's worst beating and has been left to die in the ditch. The Federal government, in collusion with state and local police agencies, has seen to it that this section of the 6th Amendment is, as far as they are concerned, null and void. I'm not going to cite case names and numbers for this, I will simply point you in the direction of virtually any "Drug War" case. Confidential witnesses, (historically known as "stoolies"), are commonplace in these cases and their identities are almost always withheld from the defence and the jury. Warrants are routinely issued on the "word" of "confidential government witnesses" who never have to attend the trial of the accused.

Following closely in the steps of these frequently used tactics in the failed "Drug War" are the prosecutors and federal investigators in charge of our latest effort, "The War on Terror." Most notably we have seen the Federal case against Zacharias Moussaoui, for complicity in the events of September 11th, 2001. The Federal prosecutors refused to allow the defence to call witnesses who are in federal custody at this time, in an attempt to clear himself of the charges against him. The Prosecution continued to argue against this, citing (once again) reasons of national security, despite the fact that there was no overriding, nor compelling reason to do so as any refusal is a violation of a defendant's 6th Amendment rights. One would think that the government lawyers who, we presume, attended a school of law would be aware of this, but apparently they are not. Of course the presiding judge was aware of it and had made it abundantly clear that she would not allow such a violation to occur in her court. Not to be outdone, the Federal prosecutors threatened to move the proceedings to a secret military tribunal, where Mr. Moussaoui will be given a fair trial, found guilty and hanged. Goodness only knows what the status of poor Mr. Jose Padilla is, or will be. He has no apparent rights any more, as we have seen by the new charges against the man.

"....and to have the assistance of counsel for his defense."

Fortunately, there are few judges that will allow someone to appear before them without having the assistance of legal counsel. Of course, if the federal government has you in custody as a "suspected terrorist" of some sort then all bets are off. You, like Jose Padilla, may have to wait years in secret prisons to get to the point were they will charge you. It has not been the policy of our country to hold a prisoner in durance vile. One must wonder what it takes in this new world order to gain access to legal counsel? Or to even be charged with a crime and have evidence and witnesses presented? The 6th Amendment is no help if you cannot even be afforded those rights afforded you by the 8th, as well, does it?

Welcome to our brave, new world. The Bill of Rights, Void Where Prohibited by Law.

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