The Practice : Season Seven (2002-03)
Feticide and Fetal Rights (last updated May 6, 2003) (back to top)
Massachusetts, like many other states, does recognize the intentional or negligent killing of a fetus as a kind of homicide, and thus might excuse violent acts done in the defense of such a fetus just as it would excuse reasonable acts done in defending other persons. Traditional legal principles held that the victim of a homicide must have been born alive before being killed first (and thus a fetus could not be "murdered"), but about 35 states have departed from this rule in recent decades.
While proponents say that such changes are designed to protect unborn children and to criminalize behavior that would otherwise escape prosecution due to a legal loophole, some see the feticide movement as a way to erode the basis for abortion-rights. Even so, the United States Supreme Court examines governmental ways of protecting fetuses based on context, distinguishing between abortion and non-abortion contexts; it held in a 1989 case that states could recognize and protect unborn children but not in a way that would undermine a woman's right to have an abortion, and in a 1992 case did not acknowledge the fetus as having any rights in whether a woman could have an abortion.
Legal Recognition of Feticide
About 35 states recognize the killing of an unborn child as a kind of homicide, according to a September 2002 report by the National Right to Life Committee, an anti-abortion rights group. According to the report, 14 states recognize the killing of an unborn child at any stage of development as a kind of homicide. Twelve states recognize the killing of an unborn child after a certain stage of development, such as viability outside the womb, as a kind of homicide. Seven states criminalize certain conduct that results in the termination of a pregnancy.
In addition, New York law treats the killing of a fetus after 24 weeks from gestation as a crime and as a homicide, but not as a murder. Article 125 of New York's penal law does distinguish between a "person" and an "unborn child" and recognizes the death of an unborn child after 24 weeks of gestation as homicide, but treats certain actions taken to cause a miscarriage not as murder but as an "abortional act."
Perhaps the most famous court case involving the death of a fetus is Keeler v. Superior Court of Amador County. In that 1970 case, the California Supreme Court held that the state's common-law definition of a "human being" – within the definition of murder as "the unlawful killing of a human being, with malice aforethought" – did not cover a child until it was born alive and that a man who beat a pregnant woman to the point that her child was stillborn could not be prosecuted for homicide. California subsequently revised its murder statute to cover fetuses. Whether that covered nonviable fetuses was decided in 1994, when the California Supreme Court determined that the statute covered fetuses once they were past the embryonic period, which occurs about 7-8 weeks after fertilization.
Many states, like California, departed from the common-law definition with new legislation. Others, like Massachusetts, made its departure through judicial decisions such as Commonwealth v. Cass, 392 Mass. 799 (1984), where a conviction for vehicular homicide of an unborn child was upheld.
In 1999, the U.S. House of Representatives passed a bill that would have amended federal law to criminalize conduct that caused the death of a "child in utero." However, the proposed legislation did not make it out of Senate committee and thus did not become law. The House bill was sponsored by Rep. Lindsey Graham (R-South Carolina) and was passed in a 254-172 vote.
Other Uses of Fetal Rights
Although the existing state laws are usually applied to people who specifically kill fetuses (in California's Keeler case, an estranged husband sought out his ex-wife and beat her to the point that she lost her child, whose father was another man she had begun living with), South Carolina has applied its murder statute to cover a woman whose child was stillborn because she ingested crack cocaine during pregnancy. In May 2001, Regina McKnight was convicted for murdering her unborn child and was then given a 12-year prison sentence; she is believed to be the first woman ever convicted of such a crime.
Under the leadership of Attorney General Charlie Condon, South Carolina has prosecuted several women who have used drugs during pregnancies, first under child abuse statutes, and then under murder statutes. The Supreme Court of South Carolina recognized the state's murder statute to cover fetuses in 1984, and determined in 1997 that a viable fetus was a "person" for the purposes of the child neglect statute, thus upholding the conviction of Cornelia Whitner.
Other states, such as Wisconsin, have laws criminalizing such in utero child abuse. But unlike South Carolina, such states generally use their laws to take the child away from its mother after birth, not to prosecute the mothers themselves.
Finally, there are some efforts to grant fetuses certain legal rights to sue under state "wrongful death" statutes, which ordinarily give people the right to sue on behalf on a deceased person for damages for wrongful or negligent acts causing such deaths. In the mid-1990s, the Florida Supreme Court and the Georgia Supreme Court both rejected such efforts and held that fetuses were not persons under the states' wrongful death statutes. This has a mostly procedural effect; such rulings prevent a mother from recovering damages for the death of her unborn fetus on behalf of that unborn fetus, but still allow a mother to sue on her own behalf for the harm done to her by the loss of her child.
Sources: The National Right to Life Committee is on-line here, and its September 2002 report on state homicide laws recognizing the unborn is on-line here. The American Civil Liberties Union, What's wrong with fetal rights: a look at fetal protection statutes and wrongful death actions on behalf of fetuses (July 1996), on-line here. American Civil Liberties Union, Analysis of S. 1673/H.R. 2436" (February 18, 2000), online here. Feticide Laws, on-line here. The following cases are on-line via Findlaw.com: Keeler v. Superior Court, 470 P.2d 617 (C.A. 197), People v. Davis, 872 P.2d 591 (C.A. 1994) and Young v. St. Vincent's Medical Center, Inc. (Fla. 1996). The Supreme Court of South Carolina's final opinion in Whitner v. South Carolina is on-line here. Patrik Jonsson, South Carolina tests the bounds of a fetus's rights, Christian Science Monitor, June 28, 2001, on-line here.
Date-Rape Drugs (last updated April 22, 2003) (back to top)
Drugs such as flunitrazepamn (commonly known as Rohypnol or roofies) and Gamma Hydroxybutyric acid (commonly known as GHB) have been called "date rape" drugs because they have been used to incapacitate potential sexual-assault victims by reducing their capacity to resist and causing memory problems afterwards. Rohypnol and GHB are both banned in the United States but are illegally imported and can be found in clubs.
It is difficult to know how prevalent are sexual assaults involving date-rape drugs, as they pass quickly through the body and residual amounts are very difficult to detect, drug officials have said.
According to a DEA official's prepared testimony in March 1999, "the number of cases in which GHB has been used to facilitate sexual assault is impossible to determine; many such cases may go unreported or unsubstantiated due to the difficulty of detecting its use. GHB is quickly eliminated from the body making detection in the body fluids unlikely. In addition, GHB's fast onset of depressant effects and its amnesiac effect render victims unable to recall the details of the attack."
Nonetheless, there were at least 13 sexual-assault cases involving 22 victims under the influence of GHB known to the DEA from 1996 to 1999, according to the DEA official's testimony.
GHB was originally sold in health food stores as a releasing agent for growth hormones that would stimulate muscle growth, but the FDA issued an advisory declaring GHB generally unsafe and illegal in 1990, and re-issued its warning in 1997. GHB then became a Schedule I controlled substance in 2000, which means that it cannot be used for any legal purpose in the United States.
Flunitrazepam is manufactured as Rohypnol by Hoffman-La Roche and is prescribed as a sleeping pill in Europe, Mexico and other places outside the United States, but it has never been approved for medical use in the United States and is treated as a Schedule I controlled substance in several ways.
The Drug-Induced Rape Prevention and Punishment Act of 1996 makes it a federal crime to give any unconsenting individual a controlled substance with the intent of committing a violent act such as rape against that individual. The Hillory J. Farias and Samantha Reid Date-Rape Drug Prohibition Act of 2000 banned GHB and required annual reports on the abuse of date-rape drugs. Some states have also revised their rape laws in recent years so that the use of date-rape drugs or other substances to reduce a victim's ability to consent or resist are covered.
Sources: March 1999 testimony by Terrance Woodworth, deputy director of the DEA's Office of Diversion Control, is on-line here. A September 2001 DEA report on club drugs, including GHB and Rohypnol, is on-line here.
Death Penalty (last updated January 11, 2003) (back to top)
Hundreds of people are sentenced to death each year in 38 states and in the federal courts, though the pace of new sentences far outpaces that of actual executions (71 were executed in 2002). Studies in recent years have drawn attention to errors in how capital punishment is applied and have shown that some people are wrongfully convicted, let alone improperly sentenced.
Between 1930 and 1999, the state and federal governments of the United States executed more than 4,400 people. In 1999 alone, 98 people were executed while about 3,500 people remained on death row, according to the Department of Justice's Bureau of Justice Statistics; 85 people were executed in 2000, 66 in 2001, and 71 in 2002.
There was a brief, judicially-mandated moratorium throughout the United States in the mid-1970s. In 1972, the Supreme Court held that capital punishment, which was then typically administered as a mandatory punishment for certain crimes, violated the Eighth Amendment's prohibition of cruel and unusual punishment (read the actual text of the amendment here). However, at least 35 states and the federal government quickly enacted new capital punishment procedures. In 1976, the Supreme Court held that such statutes were constitutional as long as there were guidelines that examined the particular circumstances of each case before the death penalty was applied.
At the federal level, a de facto moratorium lasted longer. Before the June 2001 executions of Oklahoma City terrorist Timothy McVeigh and drug kingpin Juan Raul Garza, the federal government had not executed anyone since 1963. A federal district court ruled in July 2002 that the federal death penalty was unconstitutional because of the error rates associated with the application in other jurisdictions, but this decision was reversed by the Second Circuit Court of Appeals in December 2002. For more on the federal death penalty, go here.
Showing both the slow pace of capital punishment as well as errors resulting from the justice system, more prisoners sentenced to death between 1973 and 1999 actually had their convictions overturned than were executed, according to the Bureau of Justice Statistics. About twice as many had their death sentences overturned by a court than were executed.
Thirty-eight states have the death penalty (this includes Illinois). Twelve states (and the District of Columbia) do not. The following map shows which states do not have the death penalty (white), which states do (either shade of red), and which states had more than 100 prisoners sentenced to death as of December 31, 1999 (darkest red). Alaska and Hawaii are not pictured but neither has the death penalty.
Of those states that have the death penalty, 18 states banned the imposition of the death penalty on defendants who are mentally retarded (Arizona, Arkansas, Colorado, Connecticut, Florida, Georgia, Indiana, Kansas, Kentucky, Maryland, Missouri, Nebraska, New Mexico, New York, North Carolina, South Dakota, Tennessee, Washington). The federal government has such a ban in place as well. On June 20, 2002, the Supreme Court ruled in a 6-3 decision (Adkins v. Virginia) that a national consensus had formed that the execution of the mentally retarded was cruel and unusual, and banned such executions in every state; only two states had banned such executions when the Supreme Court last considered the issue in 1989. However, the Supreme Court did acknowledge that there was still disagreement as to which offenders are in fact retarded, and left that definition to individual states.
For more background on Illinois, go here.
Sources: The Bureau of Justice Statistics, on-line here, has many resources available, including Capital Punishment 1999 bulletin, on-line here. Information on those states banning the imposition of the death penalty on mentally retarded defendants was taken from the Illinois Governor's Commission on Capital Punishment's April 15, 2002 report, which is available on-line here. Jodi Wilgoren, Governor assails system's errors as he empties Illinois death row, New York Times, January 12, 2003. The Supreme Court's 1972 decision declaring capital punishment as then applied unconstitutional was Furman v. Georgia, 408 U.S. 238 (1972) and its decision accepting new capital punishment procedures was Gregg v. Georgia, 428 U.S. 153 (1976); these cases are on-line via Findlaw.com. The Second Circuit Court of Appeals December 2002 decision upholding the Federal Death Penalty Act as constitutional is on-line here.
Forced Medication of Pre-Trial Detainees (last updated April 9, 2003) (back to top)
Can the state forcibly medicate someone solely for the purpose of rendering him or her competent enough to stand trial?
The Supreme Court has recognized that all persons -- including those people who have been arrested and are awaiting trial -- have a constitutional right to refuse medication, but this right can be outweighed in certain circumstances, including when the state wants to render someone competent to stand trial. However, the Supreme Court has not yet clarified exactly how courts should weigh these factors, and it heard oral arguments in March 2003 as to whether someone charged with fraud could be forcibly medicated against his will solely so that he could stand trial.
At the very least, a court has to try balancing the detainee's liberty interest in being free from unwanted antipsychotic drugs against the state's interest in bringing accused persons to trial. Some detainees have refused medication because of the possible side-effects, and some have tried refusing at least in part because they would face trial if they were to become competent. Failure to consider the detainee's liberty interest can result in a conviction being overturned; the Supreme Court in 1992 thus overturned the conviction of a murderer and ordered new proceedings.
Courts generally consider whether the state's interest in prosecuting outweigh the detainee's interest in refusing medication, whether less intrusive means of rendering a detainee competent are available, and whether using the medication was "medically appropriate." Some advocates want "medical appropriateness" to account for the ethics of rendering a patient competent in order to prosecute him and possibly execute him, but the D.C. Circuit Court of Appeals said in 2001 that the term referred only to whether the medication would render a patient competent, whether the benefits outweighed the side effects, and whether competency was in the patient's best interest, without any consideration of medical ethics or whatever steps the government might take next.
Another consideration may be how serious the alleged crimes are; one judge has argued that the government should not be able to force medication on people accused of health-care fraud as readily as they could on accused murderers.
Prominent Cases
Perhaps the most high-profile case raising this issue in recent years involved Russell Eugene Weston, a schizophrenic who shot and killed two officers of the United States Capitol Police, Jacob Chestnut and John Gibson, on July 24, 1998. Weston was found to be mentally incompetent in April 1999, but a district court ordered him to receive antipsychotic medication against his will in September 1999. The D.C. Circuit Court of Appeals finally affirmed the order in September 2001 by deciding that the government's interest in prosecuting Weston for such serious crimes as murder outweighed Weston's right to refuse medication, and the Supreme Court declined to hear the case in December 2001.
Weston then began undergoing medication and was reportedly improving as of a November 2002 court hearing; he could stand trial sometime in 2003.
Another recent case raising this issue is that of Michael Sell, who was initially charged in May 1997 with several fraud-related counts and later charged in August 1998 with conspiring to kill a witness and an FBI agent. Sell's mental condition reportedly deteriorated after the initial charges were brought against him, and a court concluded in April 1999 that he was incompetent. Doctors then wanted to use medication to render Sell incompetent, but Sell refused. A district court allowed forcible medication in April 2001 solely to render Sell competent, the Eighth Circuit Court of Appeals affirmed in a 2-1 decision in March 2002, and Sell has appealed this decision to the Supreme Court, which heard oral arguments in March 2003.
Sources : Weston v. United States, 255 F.3d 873 (D.C. Circuit 2001). Sell v. United States (8th Circuit 2002) (No. 01-1862). Riggins v. Nevada, 504 U.S.127 (1992). Arthur Santana, Capitol Slaying Suspect Improving, Doctor Says, Washington Post, November 20, 2002.
Racial Profiling (last updated October 13, 2002) (back to top)
Racial profiling describes police and quasi-police tactics that target individuals for searches and more intense scrutiny based on their racial or ethnic identity, rather than on legitimate factors that could give rise to the belief that one is involved in criminal activity. National attention to racial profiling as it related to black and Hispanic motorists reached new heights in the late 1990s and took on a new dimension after the September 11, 2001 attacks.
Racial profiling, if and when it can be proved to exist, violates federal anti-discrimination laws, whether committed by law-enforcement or by private institutions such as airlines. The difficulty in enforcing restrictions on racial profiling lies in proving that racial profiling actually does exist. Not only would someone have to show that certain racial or ethnic groups are indeed being treated differently than others, but also that such treatment is not justified because of legitimate factors. For example, if blacks do drive faster than whites or if Sikhs do carry more weapons than other groups, then these groups should expect to be stopped by police or security more frequently.
Both Presidents Bill Clinton and George W. Bush have condemned racial profiling. In 1999, Clinton called it a "morally indefensible, deeply corrosive practice" and said it "is in the fact the opposite of good-police work, where actions are based on hard facts, not stereotypes. It is wrong, it is destructive, and it must stop." Bush called for an end to racial profiling in his first State of the Union address, and he directed Attorney General John Ashcroft to study the problem.
Muslims and People of Middle Eastern Descent
Federal authorities have on several occasions criticized what "appears to have been a rash of improper and insensitive searches and other improper treatment of Sikhs and Arab Americans by airport and air carrier security personnel" in the wake of the September 11, 2001 attacks. Just 10 days after the attacks, in response to reports that airlines were apparently removing passengers who appeared to be Middle Eastern or Muslim, a Department of Transportation attorney e-mailed airlines to remind them not to engage in such discrimination.
Since then, federal agencies have provided more guidance to aircraft and airport personnel on how to comply with their legal obligations. For example, according to some memos available on-line, aircraft and airport personnel should not select people for inspection based on their racial, ethnic or religious background, or on appearance or dress that is associated with a particular national origin or religion, and should be sensitive to inspection procedures that could be offensive, such as asking a veiled woman to unveil in public. At the same time, aircraft and airport personnel can ask a veiled woman to remove her veil in order to confirm her identity, and can confiscate a Sikh's kirpan, which is a sheathed ceremonial sword.
Blacks and Hispanics
Addressing the racial profiling problem regarding blacks and Hispanics has been more difficult and contentious. Despite the new attention brought to the problem via a confluence of events, lawsuits, and legislative proposals, the existence and the magnitude of the problem is still unclear and much debated, largely due to a lack of comprehensive data.
To help understand the problem better, more state police agencies are being required in recent years to collect racial and ethnic data for traffic stops; 16 of 49 state law-enforcement agencies were so required as of March 2001, with another 23 agencies collecting such information in some circumstances. Bills were also introduced in the Senate in 2001 and in 2002 to require such data-collection programs on a wider basis.
One recent nation-wide effort to study the problem was the 1999 Police-Public Contact Survey conducted by the Department of Justice. According to that study, blacks were overrepresented among those stopped, searched, and arrested, and Hispanics were overrepresented among those searched and arrested. Blacks represented 9.8 percent of licensed drivers, but represented 11.6 percent of those stopped at least once and 13.7 percent of those stopped more than once, 21.6 percent of those physically searched by police during a traffic stop, and 19.9 percent of those arrested. Hispanics represented 9.8 percent of licensed drivers and represented only 8.4 percent of those stopped, but represented 13.6 percent of those physically searched and 11.7 percent of those arrested.
However, the study warned that such data cannot be taken to prove or disprove the existence of racial profiling. "[T]he analysis cannot determine whether racial differences in the breaking of traffic laws rather than racial profiling is the reason for the higher rates at which black drivers were stopped by police," the report said at one point.
Legally, a police officer may not order a person to halt or remain in a particular place unless the officer has a reasonable, articulable suspicion to believe that a crime has been or is being committed. A traffic violation can serve as such sufficient grounds, even if police are using the traffic violation as a pretext to justify a stop (as the United States Supreme Court approved in its 1996 decision in Whren v United States). Once police stop someone, they can seize contraband that is in plain sight and can ask a motorist to allow them to search the car, a request to which many people surprisingly do consent.
The problem of racial profiling arises in the application of these procedures, when police use their discretion in making such stops to target blacks and Hispanics. Some have said the problem stems from the war on drugs, in which federal and state law enforcement authorities were allegedly trained to single out such minorities as potential drug couriers.
Sources: The Department of Justice's Civil Rights Division has collected resources relating to airline profiling of Muslims and people of Middle Eastern descent on-line here, including the FAA memo quoted above. The Bureau of Justice Statistics has published several reports based on the 1999 National Survey, including Contacts between Police and the Public, on-line here, and Characteristics of Drivers Stopped by Police, 1999, on-line here. David A. Harris, Driving while Black: Racial profiling on our nation's highways, American Civil Liberties Union, June 1999, available on-line here. Deborah Ramirez, Jack McDevitt, Amy Farrell, A resource guide on racial profiling data collection systems, Department of Justice, November 2000.
The Catholic Church and Sex Abuse Against Minors (last updated November 5, 2002) (back to top)
Claims of clergy sexual abuse against minors has been a topic of concern since at least the mid-1980s and especially in recent months. The U.S. Conference of Catholic Bishops, the foremost organization for Catholic leaders, has made efforts on the problem since the mid-1980s, but the scandal reached new levels in early 2002 with the public admissions that various church leaders kept allegations secret and may have reassigned perpetrators to other ministries where children were present.
The Conference adopted at its June 2002 meeting of bishops two documents : a charter that admitted the Church's mistakes in handling allegations in the past and a set of "essential norms" for policies that would require dioceses to cooperate more with civil authorities and to remove priests accused of abuse from ministerial duties. Vatican officials in Rome expressed concerns about some of the "essential norms" in mid-October 2002, and a mixed commission of Conference and Vatican officials met at the end of October to reconcile the "essential norms" with the Church's existing procedures for removing a cleric.
Some of the revised "essential norms" stemming from that late October 2002 meeting include:
- Investigation of priests accused of sexual abuse before temporary removal from ministerial duties. Dioceses will investigate "promptly and objectively" when an allegation of sexual abuse of a minor is reported, and when there is sufficient evidence of abuse, officials may remove the accused from the ministry or impose restrictions. Under the Conference's June 2002 policy, dioceses would relieve accused priests from any ecclesiastical ministry or function whenever a "credible" accusation was made, and an investigation would then follow.
- Punishment for a single act of sexual abuse. A priest or deacon who commits "even a single act of sexual abuse" will be removed permanently from ecclesiastical ministry "if the case so warrants." The Conference's June 2002 policy did not include the "escape-valve" final clause.
- Disclosure to civil authorities. Dioceses will comply with applicable civil law in reporting allegations to civil authorities. Dioceses would have been required to go even further under the Conference's June 2002 policy, in which they would be required to report "any allegation (unless canonically privileged) of sexual abuse of a person who is a currently a minor" and to cooperate with reporting cases when the person is no longer a minor.
- Limited civilian review. Lay people will comprise the majority of a review board for each diocese that will advise diocesan officials in assessing allegations of sexual abuse. In the Conference's July 2002 policy, this review board would make its own assessment of sexual abuse allegations and would report this assessment to the victim and accused, and an appellate review board comprised mostly of lay people would also have offered advice to diocesan officials.
- Definition of sexual abuse. The revised policy defines sexual abuse of a minor as "sexual molestation or sexual exploitation of a minor and other behavior by which an adult uses a minor as an object of sexual gratification." Dioceses will apply this standard not based on any civil law, but in whether the conduct violates the sixth commandment. The Conference's June 2002 policy did not define sexual abuse.
The revised "essential norms" will become particular law in the United States if they are approved by the Conference and receive the recognition of the Holy See. Two years after the norms receive such recognition, the Conference's plenary assembly will re-evaluate the norms.
The Conference's June charter and its now-revised policies stem from a meeting between United States bishops and the Vatican in late April 2002. The Pope, who reportedly initially treated the scandal as a local problem confined largely to the United States, became involved in the spring of 2002. In mid-March, the Pope referred to the scandal but only in veiled terms. He then took a more dramatic step on April 15 by summoning all cardinals in the United States for talks the following week. The April 23-24 meetings resulted in a papal statement of sympathy and with plans for new procedures to dismiss priests who have sexually abused children or pose a threat.
Various federal surveys have tried to measure the extent of child sex abuse and the characteristics of perpetrators. A Bureau of Justice Statistics survey published in July 2000 shows that most offenders in cases reported to law-enforcement authorities know the victims and are usually acquaintances. In reported cases involving juveniles aged 0-17, 58.7 percent of perpetrators are acquaintances (which presumably could include a priest), 34.2 percent are family members, and 7 percent are strangers. While recent national attention has focused on boys as victims, girls are many times more likely to be the victims of sexual abuse and assaults, according to federal surveys. About 4 out of every 10,000 male children and about 16 out of every 10,000 female children are the victim of sexual abuse by a caretaker, according to the Child Maltreatment 1999 report published by the U.S. Department of Health and Human Services. The definition of "caretaker" focuses mostly on parents and on people such as daycare workers, but is not consistent across jurisdictions.
For years, people have raised charges that they were the victims of sex abuse by priests. Not all these charges have been substantiated as true, but Catholic leaders in the United States have tried responding to the overall problem.
In the early 1990s, for example, an ad hoc committee of the U.S. Conference of Catholic Bishops surveyed the nation's dioceses for their policies on sex abuse. About three-quarters of the dioceses had policies covering sex abuse of minors. Such policies generally urge cooperation with civil and criminal proceedings though allowing the Church to defend itself, compassion for the victim, and ensuring that priests who have offended against children never return to a ministry that includes minors.
In recent months, however, the scandal has focused on whether archdioceses have properly handled allegations of sex abuse and whether their policies have been adequate. In one particular example, Cardinal Bernard Law of the Archdiocese of Boston has admitted mishandling the situation and overemphasizing secrecy over helping victims.
"Looking back, I see that we were too focused on the individual components of each case, when we should have been more focused on the protection of children," Cardinal Law wrote in an April 12, 2002 letter to other priests. "This would have changed our emphasis on secrecy as a part of legal settlements. While this focus was inspired by a desire to protect the privacy of the victim, to avoid scandal to faithful, and to preserve the reputation of the priest, we now realize both within the Church and in society at large that secrecy often inhibits healing and places others at risk."
Cardinal Law also noted in his April 12 letter that the case of one priest in particular "has brought home with painful clarity how inadequate our record keeping has been. A continual institutional memory concerning allegations and cases of abuse of children was lacking."
The Vatican reportedly wanted to treat the issue as a local one, which could be dealt with by American bishops. The Pope referred to the growing scandal only vaguely in his traditional Holy Thursday letter of March 17, in which he expressed the disappointment that the new millennium had not coincided with a new era of peace and that even priests had succumbed to the mystery of evil in the world.
"At this time too, as priests we are personally and profoundly afflicted by the sins of some of our brothers who have betrayed the grace of Ordination in succumbing even to the most grievous forms of the mysterium iniquitatis at work in the world. Grave scandal is caused, with the result that a dark shadow of suspicion is cast over all the other fine priests who perform their ministry with honesty and integrity and often with heroic self-sacrifice," the Pope wrote.
"We know that the human heart has always been attracted to evil, and that man will be able to radiate peace and love to those around him only if he meets Christ and allows himself to be ‘overtaken' by him. As ministers of the Eucharist and of sacramental Reconciliation, we in particular have the task of communicating hope, goodness and peace to the world."
A month later, the Vatican reversed direction and called for talks that occurred on April 23-24 between the Cardinals of the United States, the leadership of the United States Catholic Conference of Bishops, and Vatican leaders. At these meetings, participants promised to devise the new procedures described above and re-affirmed that sexual abuse of minors was an "appalling sin in the eyes of God, above all when it is perpetrated by priests and religious whose vocation is to help people lead holy lives." They also upheld the value of priestly celibacy, explaining that there was no proven link between celibacy and pedophilia.
In welcoming the participants to the Vatican on April 23, the Pope gave a programmatic address at which he said that he expressed his "profound sense of solidarity and concern" to the victims and thanked the participants for establishing "more reliable criteria" and more knowledge to prevent future incidents. While acknowledging the "power of Christian conversion" to change a person's soul, he told participants that "people need to know that there is no place in the priesthood and religious life for those who would harm the young."
Sources: The U.S. Conference of Catholic Bishops is on-line here and has collected documents such as those from the April 23-24 conference here. The Child Maltreatment 1999 report is on-line here, and the Bureau of Justice Statistics report, Sexual Assault of Young Children as Reported to Law Enforcement, by Howard N. Snyder (July 2000) is available on-line here. Cardinal Bernard Law's April 12, 2002 letter is on-line here.
Commentary on "Baby Love" (back to top)
First, Massachusetts is indeed one of many states that does recognize the killing of a fetus as a kind of homicide.
Second, a defendant's Sixth Amendment right to a speedy trial does not entitle the defendant alone to set the schedule or pace of a trial but simply prevents an unreasonably long delay before trial; the court could have (and probably should have) delayed the trial a few days based simply on the court's interest in maintaining an orderly and fair process.
Third, prosecutors are probably barred under double-jeopardy principles from prosecuting the woman again on murder charges (they should have done a better job collecting evidence before trial), but they probably can prosecute the child's father for perjury (because he certainly lied when asked how he knew the defendant) and for conspiracy to murder. They probably can prosecute her again for perjury assuming she testified that the child was her husband's.
Commentary on "Goodbye" (back to top)
Rebecca probably should reveal the true identity of the defendant's wife; lawyers are not obligated to disclose privileged communications as to past crimes, but cannot allow someone to offer perjured testimony and are ethically allowed to reveal a client's intent to commit a crime; the defendant would probably still have to answer questions under oath even if he pleads guilty to other charges, and his wife is still on the run and is avoiding serving her prison sentence.
Commentary on "Heroes and Villains" (a href=#top>back to top)
Regarding Eugene's storyline. First, the use of date-rape drugs in sexual-assault cases is difficult to prove. Second, rape-shield laws such as in Massachusetts protect victims, and Jamie probably would have been considered a victim in normal circumstances.
Third, I think that any reasonable court would generally delay the trial if the prosecution's case changed so drastically on the eve of trial and if the change resulted in an extremely probable conflict of interest for the defense lawyer. Such a delay would have given Eugene enough time to withdraw from the case and for his client to find a lawyer without such a conflict. Fourth, the client can challenge his conviction due to the "ineffective assistance of counsel" but courts generally defer to what a lawyer says are strategic decisions, which is why Eugene re-iterates the point and does not say he did it for Jamie, a statement that would probably undermine the conviction and lead to sanctions against Eugene.
Regarding Lindsey, lawyers are ethically allowed to reveal a client's intent to commit a crime and to reveal the information necessary to prevent it, but not past crimes (Lindsey should have been a lot more careful). Courts generally exclude evidence only when the government has acted unconstitutionally in obtaining the evidence.
Food Lion (last updated 2001) (back to top)
Lindsey Dole represents a restaurant that sues a local television station that sent undercover reporters to investigate health-code violations. The television station broadcasts its investigation, hurting the business. The restaurant sues the TV station for fraud, given that the reporters were hired under false pretenses. The jury finds the TV station liable and returns a large verdict for the restaurant. The attorney's fee which goes to the practice is very large as well and later leads to bad feelings within the practice as partners' bonuses are based on the money they bring in. Is this based on a real case? Could this really happen?
Yes, the episode is based on a real case, but in reality things turned out very differently for the plaintiffs and much more in favor of the media involved (though only after a long fight at the appellate level).
The case is closely based on Food Lion v ABC, when the supermarket chain sued ABC News over an undercover investigation into its meat- handling practices. ABC reporters used false resumes to get jobs at Food Lion, worked there for several weeks, and used their access to uncover and film practices such as repackaging expired fish, grinding up out-of-date beef with new beef, and adding barbecue sauce to out-of-date chicken to hide the smell (I shudder just thinking about this). The footage was used in a November 5, 1992 broadcast of PrimeTime Live.
Food Lion fought back. But it did not deny the report and sue under libel (if it had, ABC could have defended itself simply by proving that everything it said was true). Instead, the supermarket chain sued under a theory of fraud and breach of loyalty, thus attacking ABC's methods rather than its findings.
The case finally went to trial in North Carolina in 1997, five years after the original broadcast. The jury ruled in favor of Food Lion on all three counts. It awarded compensatory damages of $1,402 ($1,400 for fraud, $1 each for the breach of duty of loyalty and trespass claims), but then imposed $5.545 million in punitive damages based on the fraud claim. Later reports revealed that the verdict was a compromise: 9 jurors believed ABC had acted wrongly but deserved little or no damages, but the other three jurors wanted to punish ABC (one juror wanted to impose $1 BILLION in punitive damages and would not budge for days). Getting the figure down to even $5.5 million took five days of debate.
Undercover reporting everywhere was sent reeling.
This is where the Practice version ends. But the case went on.
First, the district judge found that the amount of punitive damages was unconstitutionally excessive (the ratio of punitive to actual damages was 3,900:1) and reduced it to $315,000. Still enough to chill further undercover reporting, but much more manageable.
Both sides appealed the case, Food Lion to get more damages, ABC to throw the judgment out.
The Fourth Circuit Court of Appeals heard the case in June 1998 and announced its ruling in October 1999. It threw out the fraud claim as not based in law: while the reporters had violated the duty of loyalty they owed as employees to Food Lion and while they did commit trespass onto Food Lion property, they had not committed any fraud. To commit fraud, one must not just lie but actually deprive someone of some money or property. And whatever else the ABC reporters did, they had, after all, done the job they had been hired to do and thus were entitled to wages. There were no damages and there was no fraud. Thus, the appellate court threw out the $1,400 in fraud and then all the punitive damages based on the so-called fraud.
That brought the judgment down from $5,547,152 at the trial level down to just the $2 left from the loyalty and trespass claims. Food Lion spent more than that just to file its case in the first place.
Still, ABC News' ultimate victory may have been a pyrhic one. ABC News could win this case, but other media outlets are surely more skeptical about facing another trial and another jury, one that may be even less sympathetic or understanding.
As for what would have (should have) happened next in the Practice, the firm probably would be paid about 1/3 of the judgment, or about 66 cents. Assuming the firm took the case on a retainer basis, it lost a lot of money here. Lindsey would not be looking that good. Eleanor should be happy.
Sources: Food Lion v Capital Cities/ABC, (4th Circuit, 1999). Scott Andron, Food Lion case more about trust than law, Quill (September 1997) (available online here..
The Exclusionary Rule and the Nightmare Scenario (last updated 2001) (back to top)
In one episode, the police respond to a woman who thinks she is locked up in an apartment with a man who picked her up the night before; after letting her out, the police open a closet and find the body of a dead nun inside. Lindsey Dole is assigned to defend the man who owned the apartment (clearly the murderer) and she argues that the body is not admissible because its discovery was improper. But without the body, there is no case and a murderer goes free. The judge wrestles with her conscience but ultimately agrees and throws out the case. Not only does a murderer get away, but he threatens Lindsey's life and is about to commit another murder when he re-appears on the show and is killed.
This episode provides a useful map through the Fourth Amendment by taking us through the Nightmare Scenario often posed by critics of the exclusionary rule that has been the law in all criminal courts since 1961. First, we can see what was wrong with the police action. Second, we will discuss why the courts exclude evidence. Third, we will explore how courts have made accommodations for situations like this and how the judge could have come to a different conclusion.
1. What did the police do wrong here?
The home is sacred, even from the government, especially from the government. The Fourth Amendment to the US Constitution states that "the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures shall not be violated." The only exceptions are when the government has a warrant supported by "probable cause" or under emergency conditions.
In this case, the police definitely were acting under such emergency conditions, at least at the beginning. They had been called by a woman who believed she was in serious danger and locked in a strange man's apartment. In order to rescue her, they had the right to break into that man's apartment without his permission.
But that's all they had the right to do. And once they opened the door and found the woman unharmed, that right of entry ended.
Now, once police are legitimately anywhere, anything they see or observe without doing anything more is fair game. If they saw a bloody knife in the sink or cocaine on the coffee table, all in open view, then they could seize that evidence without violating the Fourth Amendment. This is what is called a "plain view" search.
But once they did anything more, they were violating the man's right to privacy in his own home. If they touch anything, whether lifting a stereo up to check the serial numbers or opening a closet door, they violate the Fourth Amendment.
And that's what happened here when the police opened that closet door and found a nun's body inside.
(Remember that the exclusionary rule only applies to government action, not to actions by other individuals. If the woman had opened the closet door, that would not violate the Fourth Amendment. You as a private individual can never violate the Fourth Amendment; only the government can violate it... What this means for Batman, I'm not sure. If the courts see Batman as a private individual, then he can get evidence that the police cannot. But if the courts see Batman as a de facto agent of the police, as they probably should, then the same Fourth Amendment standards should apply to his actions. This may be the best reason why the police in DC Comics don't officially recognize Batman's existence and claim he is nothing more than an urban legend.)
2. Why is evidence excluded?
Nothing explicit in the Fourth Amendment tells us how to make sure the government lives by it.
So how do we make sure that the government does not go around violating people's rights in its zeal to prosecute?
For about a hundred years, there was no good answer to that question. Maybe you could sue the police for trespass or to get your goods back, but those were ineffective obstacles to a police force that wanted to put you in prison.
In 1914, the U.S. Supreme Court decided that the only solution was to keep all improperly seized evidence out of court. This way, if the government does break the law in getting evidence, it cannot use such evidence to put you into prison. It cannot profit from its own wrongdoing, and thus it should not even consider doing so. This is the exclusionary rule.
Without such a rule, the Court said, the protections of the Fourth Amendment would be "of no value." "The efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles established by years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land."
The exclusionary rule initially applied only to federal courts, which meant that it did not have any effect in the state courts which hear most criminal prosecutions (although federal prosecutions have risen dramatically since the early 20th century, especially with Prohibition and its modern counterpart in the war on drugs). By 1949, when the Supreme Court said definitively in the Wolf v Colorado case that that state courts were NOT required to apply the exclusionary rule, 31 states had already rejected the exclusionary rule and only 16 states followed it.
Then, in 1961, the Supreme Court changed its mind.
In Mapp v. Ohio, the Supreme Court held that the exclusionary rule did apply to state courts and thus to most criminal prosecutions. If it were not, then the Fourth Amendment's constitutional protections against bad searches and seizures would be just words, "valueless and undeserving of mention in a perpetual charter of inestimable human liberties," "so ephemeral ... as not to merit this Court's high regard as a freedom ‘implicit in the concept of ordered liberty.'" The exclusionary rule was later extended to prevent the admission of evidence based on improperly seized evidence, the so-called "fruit of a poisonous tree."
But as the Practice episode suggests, maybe the cost of the exclusionary rule is too high. Aren't there other ways of making the government pay for its wrongdoing? Isn't this rewarding the criminal for what pop culture and the media grossly simplifies to "technicalities?" See Professor Akhil Amar's writings for more on this.
Part of the answer here is that the exclusionary rule has to be too much. It must be such a harsh penalty for the government - and for the common good it serves - that the government must be careful not to violate the Fourth Amendment ever. Anything less would let the police think that maybe they could violate the Fourth Amendment a little and get away with it.
And part of the answer is that courts have given themselves some wiggle room.
3. How would courts deal with a situation like this?
Even the exclusionary rule has a backdoor.
And because of it, even if the police knowingly, willfully, and in all bad faith violated the Fourth Amendment, that improperly-seized evidence can still be admitted, if the government can show that the evidence would have been found anyway.
This is called the inevitable discovery exception to the exclusionary rule, and it was established in the Nix v. Williams case of 1984. There, police had improperly gotten the defendant to admit that he knew where the body of a young murdered girl was, something he obviously would have known only if he had killed her. The U.S. Supreme Court let the body into evidence by saying that search parties would have eventually found it, though evidence suggested that search bodies were not even looking in the exact area where it was found.
Thus, prosecutors are allowed to come up with all sorts of theories as to how someone could have found the evidence some other way, and a court can hold hearings on these possible theories. If prosecutors can prove by a preponderance of the evidence (basically, that it was more likely than not, a much weaker standard than "beyond a reasonable doubt" or even "clear and convincing evidence") that any of these theories would have worked, then the evidence still gets in.
And this gives courts ample room to sidestep the Nightmare Scenario and get a murder victim's body into evidence.
And that is what happened in a New Jersey murder case which seems pretty close to being a real-life nightmare scenario of its own in many different ways.
In July 1979, Dr. Harry D. Sugar reported that his wife Joan was missing. Police suspected foul play and asked permission to search Dr. Sugar's house. He granted permission but the police did not find anything. A week later, Dr. Sugar went to California to visit his son, and he told police beforehand that he would be gone and he left a phone number where he could be reached. A few days later, without a warrant and without calling Dr. Sugar at that number, the police returned to the house and dug up a shallow grave where Joan Sugar's body had been buried.
What happened afterwards was one legal disaster compounded on another, a situation that dragged the legal proceedings out for almost a decade.
The police arrested Dr. Sugar but bugged his private conversations with his defense lawyer, a clear violation of one's constitutional rights to a defense. The local police and prosecution had to be removed from the case, and the state attorney general had to recreate the case with untainted evidence. Dr. Sugar was convicted, but then that conviction was thrown out not just because of the improper search of Dr. Sugar's house but because the prosecution had used one of the tainted detectives who had done the eavesdropping testify in court.
Here the courts were faced with a problem similar to what the judge in the Practice episode faced. There was no way of excusing the police conduct here (though some judges actually tried to explain that really Dr. Sugar had given implied consent to the police coming back to his house whenever they wanted without seeking additional permission). The exclusionary rule would seem to let a murderer go free because the police had crossed a line themselves.
And one trial court did in fact throw out the case. But the case was appealed, and how the New Jersey Supreme Court resolved the problem shows just how a court could get an improperly-seized body into evidence if it really wanted to.
The New Jersey Supreme Court reasoned that the ground where the body was buried would have eventually settled and would have been noticeable for its lack of vegetation, and thus would have been visible. The smell would also have become noticeable over time, the court said. Finally, the court reasoned that because Dr. Sugar was considering selling his house, the new owners would have eventually come across the body in the course of working on the yard or that their dog would have found it.
The trial court should not have considered the logical possibility that Dr. Sugar would have removed the body before any of these things would have happened, the New Jersey Supreme Court said. Doing so was clear error, it said.
And if that body could get in, then so could the one found in the Practice.
The judge could have assumed that the body would never have been moved out of that closet, and that it would begin to smell. Or that eventually the murderer would move out of his apartment and would leave it behind. And then the body, "inevitably," would have been "discovered."
Our legal system is designed to adjust and bend. It will twist and contort before the Nightmare Scenario ever fully comes to pass. At least that's what I hope.
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West Wing: Santos discusses a lawsuit about intelligent design
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