Saturday, May 20, 2006

Due Process Revisited

"Where justice is denied, where poverty is enforced, where ignorance prevails, and where any one class is made to feel that society is an organized conspiracy to oppress, rob and degrade them, neither persons nor property will be safe." --Frederick Douglass

As we saw in a previous post Civil and Criminal Defendants - Who Has The Most Rights?, criminal defendants are granted the constitutional rights of “due process” of law. They are assumed innocent until proven guilty, provided a public defender at taxpayer expense (even down to misdemeanor level) if they cannot afford one, given a trial by jury and given every consideration to guarantee that their civil rights aren't violated in the process of ascertaining their guilt. If they are convicted, they receive a jail term that is definite.

One of the main governing case laws for the above is a U.S. Supreme Court ruling in the case of Hargersinger v. Hamlin, 407 U.S. 25 (1972) where the Petitioner, an indigent, was charged in Florida with carrying a concealed weapon, an offense punishable by imprisonment up to six months, a $1,000 fine, or both. The trial was to a judge, and petitioner was unrepresented by counsel. He was sentenced to serve 90 days in jail, and brought this habeas corpus action in the Florida Supreme Court, alleging that, being deprived of his right to counsel, he was unable as an indigent layman properly to raise and present to the trial court good and sufficient defenses to the charge for which he stands convicted. The Florida Supreme Court by a four-to-three decision, in ruling on the right to counsel, followed the line we marked out in Duncan v. Louisiana, 391 U.S. 145, 159, as respects the right to trial by jury and held that the right to court-appointed counsel extends only to trials "for non-petty offenses punishable by more than six months imprisonment." 236 So.2d 442, 443.
This decision was reversed.

The Sixth Amendment, which in enumerated situations has been made applicable to the States by reason of the Fourteenth Amendment, provides specified standards for "all criminal prosecutions." One is the requirement of a "public trial." In re Oliver, supra, held that the right to a "public trial" was applicable to a state proceeding even though only a 60-day sentence was involved.

Very interesting in this ruling are the comments made by Mr. Chief Justice Burger in concurring with the ruling where he said:
“I agree with much of the analysis in the opinion of the Court and with MR. JUSTICE POWELL'S appraisal of the problems. Were I able to confine my focus solely to the burden that the States will have to bear in providing counsel, I would be inclined, at this stage of the development of the constitutional right to counsel, to conclude that there is much to commend drawing the line at penalties in excess of six months' confinement. Yet several cogent factors suggest the infirmities in any approach that allows confinement for any period without the aid of counsel at trial; any deprivation of liberty is a serious matter. (emphasis added) The issues that must be dealt with in a trial for a petty offense or a misdemeanor may often be simpler than those involved in a felony trial and yet be beyond the capability of a layman, especially when he is opposed by a law-trained prosecutor. There is little ground, therefore, to assume that a defendant, unaided by counsel, will be any more able adequately to defend himself against the lesser charges that may involve confinement than more serious charges. Appeal from a conviction after an uncounselled trial is not likely to be of much help to a defendant since the die is usually cast when judgment is entered on an uncounselled trial record.”
The highest court of the nation recognizes that “any deprivation of liberty is a serious matter.” They understood the necessity of having counsel and a trial by jury along with due process of law.

The American Bar Assn. (ABA) concurs in this concept for the criminal. In the above SC case you will note (bottom of page 43) where “the ABA in a companion ABA Report on Standards Relating to the Prosecution Function and the Defense Function, the same basic theme appears in the positive standard cast in these terms:
"Counsel for the accused is an essential component of the administration of criminal justice. A court properly constituted to hear a criminal case must be viewed as a tripartite entity consisting of the judge (and jury, where appropriate), counsel for the prosecution, and counsel for the accused."
However, it is felt by this blog that this concept should be applied to not only to criminals, but civil cases where loss of liberty is possible. What justification could there be in not doing so? Loss of liberty has the same effect whether for a criminal or a non-criminal. To deny due process to a non-criminal defendant is an egregious injustice and violates all that we, as Americans, believe in.

Non-payment of alimony, for various reasons of an inability to do so, subjects thousands of spouses to the threat of incarceration for contempt of court. Frequently, the courts impose a 59 day limit so that they don’t run afoul of the “in excess of 60 day rule.” Yet there are many instances where spouses are incarcerated for sentences that far exceed this rule.

As an illustration, a concept in law, regarding contempt of court, is that the Contemnor carries keys to cell in his own pocket. Pasin v. Pasin, 480 So.2d 699 (Fla. 4th DCA 1985); Pugliese v. Pugliese, 347 So.2d 422 (Fla. 1977). Thus if the spouse lacks the ability to pay, he therefore does not possess any “key” to get out of the cell. This being the case, the contemnor can frequently be incarcerated for an indefinite period far in excess of the 60 days.

It would appear logical to the average person to apply common sense reasoning and conclude that the same logic that grants due process to a criminal would hold true in a non-criminal case where there was the chance of a “deprivation of liberty.” For some unfathomable reason in cases of amily law it appears that this logic escaped the makers of this system.

You have to ask yourself, where is the justice in giving a criminal greater rights and privileges than would be given to a normally law-abiding citizen whose only crime is in not having an ability to pay???

Consider the fact of the existence of “lifetime” alimony and the fact that when a spouse retires or their income is reduced, the ability to pay is concurrently reduced. At that point, the spouse is then subject to incarceration from contempt of court. Should the court not grant a reduction of alimony, then the contemnor gets to spend some of their “golden years” as a guest of the state.

The sad part about all of this is that as widespread as this situation is and how it affects thousands upon thousands of spouses, its very existence is swept under the table by the family law system, relatively ignored by the media and discounted by those alimony-paying spouses who haven’t suffered any financial setbacks yet.

A tip of the iceberg can be seen from some of the posts in the CFLAP Yahoo Groups forum. Go there and read some of the horror stories. For some of you, it is only a question of time when you will encounter the family law “injustice” system and be facing a similar fate. With the high rate of divorces and the ease with which one get a dissolution, the odds are in favor of your being one of the casualties.

One cannot help but wonder if it is not the profit motive resulting from the multi-billions of dollars derived from the practice of family law that is the driving force for the prevailing injustices. The more adversarial relationship the attorneys can create between the parties, the more fees they can generate. The more rules there are, the easier it is for them to justify their involvement.

Remember, the law system is a self-perpetuating entity. Legislators who make the laws regulating alimony are, by and large, attorneys. The judges who rule on the laws and see to their enforcement are attorneys. And finally, the participants in the court system are the attorneys representing their clients.

You don’t have to be a rocket scientist to figure this organization structure out to conclude that the ones making the rules, the ones administering the rules and the ones representing the parties are the ones benefiting from all the rules. The more rules there are, the more attorneys and judges are needed to administer them. That one hand washes the other can plainly be seen.

To top it all off, the more people snared in the system, the more money the State makes from grants generated from the Federal government to compensate them and “defray” expenses wracked up in engulfing people in their tentacles, which often lasts for the rest of their lives. And, we all know the State’s propensity for finding and retaining any sources of income to fuel their growth.

Should all this be allowed to continue? Are you going to sit by the wayside watching these injustices to persist? Do you really think that it won’t happen to you and it only affects the “other” person? Think again! Too often people stand on the sidelines keeping out of the fray and hoping to benefit from the efforts of those who will fight back. If that is what you are waiting for, you might be in for a long wait.

In life….do you want to be a player or spectator? Are you going to “make” things happen or just “watch” what happens? Remember the quote by Edmund Burke: “The only thing necessary for the triumph of evil is for good men to do nothing.” It’s time to do something….now! Start by visiting and the other “links” shown in the menu on the left.

* Smashing The Glass Ceiling

* No law for 'taking' of man's life
* Feud in judge race still taking the lower road

* Trial To Open In Criminalizing Political Speech For Criticizing Judge

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