Tuesday, January 22, 2019

If you need another reason to despise Brett Kavanaugh and the disgusting process that put him on SCOTUS -- we have one, thanks to Ruth Bader Ginsburg

Brett Kavanaugh
Do you tend to look back at the confirmation of Brett Kavanaugh to the U.S. Supreme Court (SCOTUS) as an exercise in partisan rancor? If so, we invite you to think again. That's because we have identified a constitutional right that is likely to be eroded with Kavanaugh on the nation's high court.

We are talking about the Sixth Amendment right to counsel. It generally has been held to mean that an individual cannot be subject to incarceration in a criminal trial if he has not been afforded assistance of counsel, even if he cannot afford to pay for one. SCOTUS most recently addressed this issue in a case styled Alabama v. Shelton, 535 U.S. 654 (2002)

This issue hits close to home because Missouri Judge Jerry Harmison violated Shelton when he imposed a suspended imposition of sentence (SIS) on my wife, Carol in the bogus "assault" case brought against her related to our unlawful eviction, where deputies broke her arm. Carol did not have counsel in the case, and she did not waive her right to counsel. The SIS means Carol could be subject to incarceration if she violates terms of her probation -- and that is not allowed under Shelton.

Why is that not allowed? Well, we can thank the court's liberal-to-moderate bloc at the time (Stevens, Souter, Breyer, Ginsburg), who, surprisingly, were joined by Sandra Day O'Connor. The court's right-wing bloc (Scalia, Rehnquist, Thomas, Kennedy) dissented, trying their best to plunder a constitutional right. In what should be a surprise to no one, former Alabama Attorney General Bill Pryor argued for the state, siding with the right wingers.

Here is the primary holding in the Shelton majority opinion, written by Ruth Bader Ginsburg:

Held: A suspended sentence that may "end up in the actual deprivation of a person's liberty" may not be imposed unless the defendant was accorded "the guiding hand of counsel" in the prosecution for the crime charged. Argersinger, 407 U. S., at 40.

(a) The controlling rule is that "absent a knowing and intelligent waiver, no person may be imprisoned for any offense ... unless he was represented by counsel at his triaL" Argersinger, 407 U. S., at 37.

Ginsburg's opinion was grounded in Argersinger v. Hamlin, 407 U.S. 25 (1972), which held:

The right of an indigent defendant in a criminal trial to the assistance of counsel, which is guaranteed by the Sixth Amendment as made applicable to the States by the Fourteenth, Gideon v. Wainwright, 372 U. S. 335, is not governed by the classification of the offense or by whether or not a jury trial is required. No accused may be deprived of his liberty as the result of any criminal prosecution, whether felony or misdemeanor, in which he was denied the assistance of counsel. In this case, the Supreme Court of Florida erred in holding that petitioner, an indigent who was tried for an offense punishable by imprisonment up to six months, a $1,000 fine, or both, and given a 90-day jail sentence, had no right to court-appointed counsel, on the ground that the right extends only to trials "for non-petty offenses punishable by more than six months imprisonment."

The right of an indigent defendant to have assistance of counsel in any prosecution where his liberty might be at stake has been solidly grounded in U.S. law for more than 45 years -- but right wingers tried to chip away at it in 2002. Even Brett Kavanaugh's predecessor -- the renowned swing voter Anthony Kennedy -- sided with Scalia and Co. on the issue.

Ruth Bader Ginsburg
What will happen if a right-of-counsel case comes before SCOTUS, now that it includes Kavanaugh. Donald Trump's appointee likely will side with the court's right wingers (Roberts, Alito, Thomas, and Gorsuch) to override Shelton -- assuming specifics in the new case are the same as those in Shelton; a variety of issues can come under the broad right-of-counsel heading..

Do you like the idea of Brett Kavanaugh, famed for his buddies "Squee" and "Moose",  being involved in such profound decisions? I sure don't. Do you believe a "president," who apparently has acted as a Russian asset, should have two nominees (Kavanaugh and Gorsuch) help take away rights that long have been grounded in the U.S. constitution? I don't.

But that is what we could be facing. And it's because the Brett Kavanaugh hearings were more than a grotesque example of political theater. They were, in essence, an attack on our constitution.


Anonymous said...

LS: you have the disturbing ability to take a nebulous concept that most people would never think about and making it clear and concise. I must admit that sometimes I would rather keep my head in the sand. Especially these days--my head just gets tired.

legalschnauzer said...

@7:18 --

I will take that as a very nice compliment, and I thank you. You obviously read the post closely, with a strong intent to understand. I love readers like you, and your commitment is greatly appreciated.

I know what you mean about a tired head. Mine gets that way, too.

Anonymous said...

People tend to think of abortion and gun rights and maybe church state when SCOTUS is involved. But this shows a guy like Kavanaugh can help override other rights that have been embedded in U.S. law for decades.

Anonymous said...

It's crazy how conservatives have deified Scalia. Anyone who thinks he was a great justice should read his dissent in Shelton. The guy was a clown, incredibly over-rated.

Anonymous said...

Thanks for insightful post, LS. Nice to see the props from @7:18, and I think he's sincere.

legalschnauzer said...

@8:50 --

Yes, I think @7:18 is sincere. One of the nicest compliments I've received related to journalism.

legalschnauzer said...

Here is some interesting history, from the Shelton opinion, about the high court's stance on this issue:

"In Gideon v. Wainwright, 372 U. S. 335, 344-345 (1963), we held that the Sixth Amendment's guarantee of the right to state-appointed counsel, firmly established in federal-court proceedings in Johnson v. Zerbst, 304 U. S. 458 (1938)."

So, the right to state-appointed counsel goes back to 1938 -- roughly 80 years old, with Argersinger providing clarification in 1972.

legalschnauzer said...

For those interested in the Scalia dissent, as best I can tell, it is based on his concern that the Shelton ruling would place"significant burdens on States."

I'm pretty sure I've seen this line of thinking before from Scalia. It seems his tendency was to place burdens on individuals, such as going through re-trials if they ultimately face jail time for suspended sentences, while relieving the state of any perceived burdens. It's all about favoring the institution or corporation over the individual.

This, in my view, was Scalia's true judicial philosophy. His standing as a "textualist" was pure BS, a product of the conservative imagination.

Anonymous said...

With regard to @7:18, I bet one of the nicest compliments that Mr. Schnauzer has ever received -- that's not related to journalism -- is that he's tall and handsome; and, that he and Mrs. Schnauzer make a cute and endearing couple.

legalschnauzer said...

@11:06 --

Why, yes, exactly! Hah!

I don't remember anyone saying that, but if they did, it would be great.

Maybe people say it all the time, behind our backs. I'll hold that thought, anyway.

e.a.f. said...

None of this is a surprise to many of us. K. being appointed to the Supreme Court of the U.S.A. was intended to deprive people of their rights and as soon as dtrump was elected many knew that was also dtrump's agenda. dtrump will do whatever he can to turn the U.S.A into a fascist state and to change its government so that it is no longer a threat to Russia and China and that it is no longer an e.g. to people who want a democracy, not that the U.S.A. ever was a democracy. However, given that many thought it was and could be improved, that time has ended. It is now time to turn the clock back to what it was when it was founded, a country for land owning white males.

It has been a long time since MLK died, but not much has changed in the U.S.A. Yes, you had a President who is A.A., but A.A. are still being killed by white cops and deprived of their rights.

The case you site, yes, it will be changed and K. and his group will be willing to do it no problem. The more people in jail, the more people make money. Prisoners can also be forced to work, which makes some corporations a lot of money, just like in china. Millions are held in prisons in China and forced to work for free. the more time passes, the more the U.S.A. looks like China.