Archive for February, 2012
The Far [Or Not So] Reaches of a Lie
Yesterday, the US Supreme Court debated the ethics and effects of a lie as a law punishing those who falsely claim winning military honors came up for ruling.
During an intense hour of debate before the U.S. Supreme Court on Wednesday that touched on the harms and benefits of lying, the dramatic high point came when Chief Justice John Roberts Jr. asked if a “pure lie” had any value under the First Amendment. Federal public defender Jonathan Libby fumbled for an answer, positing that author Samuel Clemens’ creation of his false Mark Twain persona had value. But that did not cut it for Roberts, so Justice Stephen Breyer interjected with a historic lie that saved lives and no one would want to punish. ”Obvious example: Are there Jews hiding in the cellar? No!” Breyer said with theatrical emphasis, recalling the days of World War II when Europeans gave safe haven to Jews who were being hunted down by Nazis.
But whether that honorable lie will lead the Court to strike down the law under debate on Wednesday is far from clear. At issue in U.S. v. Alvarez is whether the Stolen Valor Act of 2006, which makes it a crime to falsely claim winning a military honor, violates the First Amendment. The Court at first seemed poised to reject the law, with several justices expressing fear it could lead to laws forbidding fibs about high school diplomas or extramarital affairs. “Where do you stop?” Roberts asked of Solicitor General Donald Verrilli Jr., who was defending the law. Justice Anthony Kennedy also worried about the creation of a government “ministry of truth” policing prevarication in many spheres of expression. And Kennedy said there is no Court precedent for upholding a law criminalizing falsehoods that cause no injury. “I simply can’t find that in the cases,” he said.
But true to his role as swing justice, Kennedy was soon sounding like he would uphold the law. If the Stolen Valor Act is struck down, Kennedy asserted, the constitutionality of a much older law forbidding the wearing of falsely obtained military medals would be in “serious doubt.” That’s because wearing a medal could be viewed as a form of expressive conduct meriting as much protection as verbally lying about a military medal. He and other justices suggested striking down the Stolen Valor Act could also jeopardize a range of federal fraud and impersonation statutes, including the law that makes it a crime to make false statements to a federal agent. “It seems to me you’re proposing a test that would invalidate all of the laws on the books regarding false statements,” Justice Elena Kagan told Libby, the lawyer challenging the Stolen Valor Act.
More than once, Kennedy pointed toward a compromise way out: avoiding the knotty First Amendment issue and upholding the law as a form of trademark protection, akin to protecting the name of the U.S. Olympics from being used by others, which the Court allowed the government to do in the 1987 case San Francisco Arts & Athletics v. U.S. Olympic Committee. A brief offering that alternative was filed in the Alvarez case. With both sides making “slippery slope” arguments about the impact of upholding or striking down the law, that option may gain appeal. Though the government mentioned the trademark defense only in passing in its brief, Verrilli appeared to embrace it during oral argument.
The case was argued against the backdrop of a string of decisions in recent terms giving strong First Amendment protection to offensive speech, ranging from films depicting animal cruelty, to virulent protests at military funerals, to violent video games. The challenge for Verrilli was to frame the Stolen Valor Act as a very narrow law that would not significantly expand the zone of speech that the Court views as unprotected, and would not threaten related speech that should be protected. Verrilli went a long way toward doing that, repeatedly asserting that the law only involved an easily verified falsehood about oneself, and served the valid interest of protecting the integrity of a military honors program that was launched in 1782 by George Washington—#8212;whose birthday was Wednesday.
Verrilli also stressed that the law did not impinge on the “breathing space” needed to protect valid political commentary, theater, satire or parody. “It advances a legitimate, substantial, indeed compelling governmental interest,” Verrilli said, “and it chills no protected speech.” Justice Sonia Sotomayor seemed to reject Verrilli’s argument, questioning what harm flowed from lying about having won a military honor. Someone who validly won such a medal would not think less of it just because someone else was lying about having won one, she said. “So outside of the emotional reaction, where’s the harm? And I’m not minimizing it. I too take offense when people make these kinds of claims, but I take offense when someone I’m dating makes a claim that’s not true.”
Verrilli responded, “As a father of a 20-year-old daughter, so do I, Justice Sotomayor.” For Libby, his adversary, the task was to show that the law swept more broadly, criminalizing lies that caused no harm and were not aimed at monetary gain. He represented Xavier Alvarez, a local California politician who was prosecuted after claiming in a public speech that he was a Marine veteran and had won the Congressional Medal of Honor. In fact, Alvarez never served in the military.
“It doesn’t matter whether the lie was told in a public meeting or in a private conversation with a friend or family member,” Libby told the justices. “And the law punishes false claims to a military award regardless of whether harm results or even is likely to result in an individual case.” But Libby stumbled in rebutting Verrilli’s argument that the law gave adequate breathing space to speech that deserved First Amendment protection. When Kagan pointedly asked him, “What truthful speech will this statute chill?” Libby replied, “Your honor, it’s not that it may necessarily chill any truthful speech.”
Kagan’s reply: “So, boy, I mean, that’s a big concession, Mr. Libby.” Libby tried to recover, asserting that nothing in the law would prohibit prosecution of those who lie about military honors in the context of satire or parody. But the damage was done. When Verrilli gave his rebuttal, his final words were, “As respondent concedes, there is no chill here, so this statute is constitutional.”
For original article: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202543179580
Promoting Justice As Utah Attorneys
Image via Wikipedia
Promoting Justice
The following article from the New York Times outlines how some of your privacy is [or is not] being protected.
“Prosecutors have a constitutional duty to disclose significant evidence favorable to a criminal defendant. But too often that duty, as laid out by the 1963 Supreme Court decision Brady v. Maryland, is violated.
To help ensure compliance, some prosecutors, criminal defense lawyers and legal scholars have sensibly concluded that prosecutors’ files, as a general rule, should be made open to defendants. In cases where turning over evidence might endanger a witness, for example, a judge could allow an exception.
A small number of state and local governments have adopted open-file policies that require prosecutors to make available well before trial all information favorable to the defense, without regard to whether such information is likely to affect the outcome of the case. North Carolina and Ohio and places like Milwaukee have found that such policies make prosecutions fairer and convictions less prone to error. The Justice Department should join this movement and set a national example. But instead, it continues to take half-measures in response to its own failures to meet disclosure requirements.
It responded to several cases of Brady violations by its attorneys — including egregious misconduct in the case of the late Senator Ted Stevens — by providing more training and by directing each United States attorney’s office to set forth clearly its version of the department’s Brady policy, which is to turn over favorable evidence only if it is “material,” meaning likely to make a difference in the case’s outcome.
Those changes are not sufficient because the Brady rule is too easily skirted. It allows prosecutors to withhold favorable evidence that they deem not to be material, leaving defense lawyers unaware of evidence that may be owed them. Ninety-six percent of federal criminal cases are resolved by plea bargains, so the rule puts defendants at a disadvantage in negotiation: without access to information in the government’s files, they don’t know the evidence they face and can’t assess their odds at trial.
This weakness in the Brady rule also means there is no way of knowing how many violations are buried by plea bargains. The few that become known, through trials or post-trial challenges, are no index of the problem’s true dimensions, but they can show how deeply rooted it is.
After the Justice Department dropped the case against Senator Stevens in 2009 because of prosecutorial misconduct, including the withholding of exculpatory evidence, Judge Emmet Sullivan of the Federal District Court in Washington, D.C., chose to appoint outside counsel to investigate what went wrong rather than trust the Justice Department to do it.
In 2009, Judge Mark Wolf in Boston likewise found that the long-standing problem eroded his trust in federal prosecutors. “In the District of Massachusetts,” he wrote, “the government has had enduring difficulty in discharging its duty to disclose material exculpatory information to defendants in a timely manner.”
In both the federal and state court systems, it is essential that rules about disclosing evidence be followed in ways that promote justice. An open-files policy would come closer to meeting this important standard. “
For the original article: http://www.nytimes.com/2012/02/27/opinion/justice-and-open-files.html?_r=1&hp
