Assange defense group plans Boston/online panel

In connection with Student Press Freedom Day, featuring nationwide virtual events, Boston Area Assange Defense will host a live and streaming program on Thursday, February 23, 6:30-8:30 p.m., on the prosecution (persecution?) of WikiLeaks information activist Julian Assange.

Accused of hypocrisy, the Biden Administration still seeks Assange's extradition from the UK to face charges of espionage in the United States. Assange presently is appealing approval by the British home secretary of the extradition request.

Having co-founded WikiLeaks in 2006, Assange long advocated for absolutism in the freedom of information. But when WikiLeaks received a trove of records from U.S. soldier Chelsea Manning, Assange did enlist the help of journalists to filter the material for public consumption in an effort to protect people, such as confidential informants whose lives would be at risk if they were named as collaborators with western forces.

Nevertheless, the subsequent publication of records in 2010 and 2011 outraged the West.  The records included secret military logs and cables about U.S. involvement in Iraq and, as Al Jazeera described, "previously unreported details about civilian deaths, friendly-fire casualties, U.S. air raids, al-Qaeda’s role in [Afghanistan], and nations providing support to Afghan leaders and the Taliban." Especially damaging to western interests was a video of arguably reckless U.S. helicopter fire on Iraqis, killing two Reuters journalists.

Manning was court-martialed for the leaks. President Obama commuted her sentence in 2017.

Thursday's program is titled, "The Future of Gen Z Journalism Depends on Julian Assange's Freedom." From Boston Area Assange Defense, here is the description.

Boston Area Assange Defense invites you to attend a panel discussion on how the U.S. prosecution of Julian Assange impacts the future of journalism. This event is part of the Student Press Freedom Day 2023 initiative: "Bold Journalism/Brave Advocacy." 

The reality is that "Bold Journalism" has landed Julian Assange in a supermax prison for publishing the most important journalistic work of this century. Our First Amendment rights are threatened by this unconstitutional prosecution of a journalist and gives the US government global jurisdiction over journalists who publish that which embarrasses the US or exposes its crimes.

Prestigious international lawyer Prof. Nils Melzer (appointed in 2016 as UN Special Torture Rapporteur) authored, The Trial of Julian Assange, A Story of Persecution. The book is a firsthand account of having examined Assange at Belmarsh prison and having communicated with four "democratic" states about his diagnosis of Assange exhibiting signs of persecution. He wrote, "I write this book not as a lawyer for Julian Assange but as an advocate for humanity, truth, and the rule of law." "At stake is nothing less than the future of democracy. I do not intend to leave to our children a world where governments can disregard the rule of law with impunity, and where telling the truth has become a crime." Melzer stated, "If the main media organizations joined forces, I believe that this case would be over in ten days."

Boston Area Assange Defense platforms this experienced panel of journalists for a lively conversation about the Assange prosecution, its threat to journalism and the rule of law. Also, a short video clip narrated by Julian Assange's wife will be streamed for informational and discussion purposes.

Students and citizens alike are entitled to a free press so that we can make informed decisions.

A free press is the cornerstone of our democracy.

We must fight against censorship and the criminalization of journalism.

We must show "Brave Advocacy" to end the prosecution of Julian Assange!

Please join us February 23rd for this important "Bold Journalism/Brave Advocacy" event.

Students are invited so kindly share this event with your students!

Online Zoom link. 

Community Church of Boston's YouTube. 

People will also gather at the Community Church of Boston, 565 Boylston St., near Copley Square.

An Assange information table will be set up with literature and petition to MA senators. Boston Area Assange Defense will be present to answer questions....

Guest speakers:

• Jeremy Kuzmarov, Author and Educator, Managing Editor, Covert Action Magazine 
• Esther Iverem, Journalist, Producer, Radio Host, "On the Ground: Voices of Resistance from the Nation's Capital," nationally syndicated on the Pacifica Network
• Sam Carliner, Journalist; Sam's Jan. 2021 article covering the Dept of Justice DC rally during Assange's extradition hearing
• Tarang Saluja, Student, Activist, Journalist

BU prof's death was tragic accident; investigation shows bad policy, but not criminal negligence

A Savory Tort Investigation

I've posted for public download [no longer posted; contact me for file] files of the investigation into the matter of Boston University (BU) Professor David K. Jones, who died on September 11, 2021, when he fell through a rusted stairway near a Massachusetts Bay Transportation Authority (MBTA) station.

When the Suffolk County (Mass.) DA announced in January that no criminal charges would be filed in the death, I requested the investigative files under state public records law. Record Access Officer Claudia Buruca filled my request promptly and kindly (in May; I'm just getting around to it). The ZIP file I created in Dropbox runs about 97.3 megabytes and includes documents, images, and 911 audio, all appropriately redacted by the DA's office to protect the privacy of the decedent and family.

I wrote about the incident here last October. A professor in the School of Public Health at BU (in memoriam) and husband and father of three in Milton, Mass., Jones was a runner and was out training for a marathon. He mounted a stairway on MBTA property in Boston that connected Old Colony Avenue, below, with Columbia Road, passing overhead. Four treads in the uppermost part of the stairway were missing, and Jones fell through, about 20 feet, to his death.

In reference to the DA's decision on criminal charges, I wanted to know more about why the rusted stairway was accessible to Jones. The file (in accordance with subsequent news reporting) revealed that demolition of the stairway had been planned, but was delayed by confusion over what state agency was responsible. In the meantime, the stairway was blocked at top and bottom. The stairway has been demolished since.

A warning: in the following paragraphs I will describe the evidence dispassionately, and the details might be troubling to some readers, especially if you knew Jones.

All photos are from the investigative file.

It appears that the stairway was well blocked at the top by a jersey wall, fencing, and signage. It was not as well blocked at the bottom. There was a high, temporary fence strung across the alighting threshold. Jones would have to have gone around the fence knowingly and deliberately. But doing so was not hard.

A Google Street View image from November 2020 shows the fence footing sitting well past the stairway corner.

At the left end of the alighting handrail, the fencing was anchored to a vertical steel post, which stood upon a rectangular steel footing. A Google Street View image from the preceding year shows the footing set out well past the end of the stair, so the fencing extended across the threshold and then a prophylactic foot or more. Also, while an apparently older image in the investigative file shows a "Danger / No Trespassing" sign affixed to the fence at the bottom of the stairway, that sign appears to have gone missing by the time of the Google Street View image in November 2020.

Accident-scene images show that the footing had migrated to the corner of the stairway footing and angled to 45 degrees. So a narrow gap between the end of the handrail and the start of the fencing left the stairway more readily accessible. Also, the "Danger" sign still is missing.

Either way, it was never very difficult for a person to squeeze around the end of the fence and onto the stairway. There is video surveillance of Jones walking—not running—up the stairs, and then of him falling. But no camera captured how he circumvented the fence at the bottom, nor what happened when he encountered the gap in the stairs.

I had assumed, based on my own experience as a runner, that Jones had run up the stairs, probably looking up and ahead, and lost his footing at the missing treads. So I was surprised to see that he walked up. Also surprising, about nine seconds, give or take, elapsed between his disappearance from camera view, moving up the stairs, and his falling back through the camera view. That's more time than would have been needed to go the rest of the way. One possibility is that he lost his footing, but was able to hold on to something for a short time before falling. Another possibility is that he saw the gap, tried to circumnavigate it, and failed. There's no way to know.

Whatever the unknown circumstances, personally, I am satisfied that the DA made the right call. The delay in demolition of the stairway, the too easily circumventable fencing, and the missing danger sign significantly and unnecessarily exacerbated the risk of injury or death and evidence bad public policy. But the conditions don't, in my mind, rise to the level of criminal negligence, which involves willful ignorance of an obvious risk of harm—much closer to civil recklessness than to civil negligence. For Jones's part, he had to know that he was taking some risk in circumventing the fencing. And I say that mindful that I've made some bad choices myself in the past, so there but for the grace of God....

Rusted treads that had not yet detached.

Even in the absence of criminal negligence, it would be nice to know that the bad practices of demolition delay, circumventable fencing, and missing danger signs are being addressed by the MBTA. To be fair, the MBTA should be lauded for having closed the stairway before an accident happened in the absence of barriers.

At the same time, why did the staircase rust so to begin with? Ironically, Jones worked as a public health scholar studying social risk factors. Bigger questions loom about our aging infrastructure and who pays the price when it fails.

Conditions of criminal pretrial release shouldn't abate civil abuse prevention order, Mass. court rules

In a decision today, the Massachusetts Appeals Court reversed and remanded a trial judge's refusal to extend an abuse prevention order.

The order meant to protect a woman who had testified to physical abuse by her husband, who blamed her for the premature birth of their daughter.  According to testimony, "[a]s she tried to nurse the baby, the defendant painfully grabbed at her breast"; he shoved the woman; he threatened her and the baby; and he called the woman "'a horrible mother because [she] wasn't fat enough and wasn't eating enough.'"  The man was charged with (criminal) assault and battery.

The trial judge refused to extend the abuse prevention order because he improperly considered conditions of pretrial release and involvement of the Department of Children and Families as duplicative of the order.  The court explained:

Conditions of pretrial release are within a judge's broad discretion, and the civilian victim has no right to be heard on the matter. Furthermore, conditions of pretrial release are terminated automatically when the criminal case is disposed.

For these reasons, conditions of pretrial release, even if they encompass the same conditions as an abuse prevention order, are no substitute for an abuse prevention order. The same reasoning applies to DCF involvement. DCF has no power to incarcerate a person for engaging in abuse of a household or family member. At most, DCF can take custody of a child and refer the matter to law enforcement....

Rather than rely on these factors, a judge should simply determine whether the plaintiff has shown "a reasonable fear of imminent serious physical harm[,]" ... or whether the plaintiff has "suffered physical abuse" or "past sexual abuse" and "an order [i]s necessary to protect her from the impact of that abuse." [Citations omitted.]

The ruling thus marks the significant differences among civil, criminal, and administrative processes, each with its separate aims, even when all three are implicated in a case of domestic violence.

The case is Vera V. v. Seymour S., No. 19-P-1674 (Mass. App. Ct. Aug. 28, 2020).  Justice Joseph M. Ditkoff wrote the opinion for himself, Justice Gregory I. Massing, and Justice Sookyoung Shin.

(U.S. Air Force graphic by Staff Sgt. Michael Means.)

Sullivan publishes on ethics, criminal appeals, and seeking Supreme Court certiorari

My friend and colleague Professor J. Thomas Sullivan has published, Ethical and Aggressive Appellate Advocacy: The Decision to Petition for Certiorari in Criminal Cases, 51:3 St. Mary's L.J. 585 (2019).  The article is especially salient in light of the U.S. Supreme Court's recent decision requiring unanimous juries to convict in criminal trials for serious offenses.  Here is the abstract.

Over the past six decades, United States Supreme Court decisions have dramatically reshaped the criminal justice process to provide significant protections for defendants charged in federal and state proceedings, reflecting a remarkable expansion of due process and specific constitutional guarantees. For criminal defendants seeking relief based on recognition of new rules of constitutional criminal procedure, application of existing rules or precedent to novel factual scenarios, or in some cases, enforcement of existing precedent, obtaining relief requires further action on the Court’s part. In those situations, the Court’s exercise of its certiorari jurisdiction is the exclusive remedy offering an avenue for reversal of conviction or order vacating the sentence. Petitioning for review by writ of certiorari is essential to the defendant’s chances for obtaining relief and is what might be characterized as the “final tool” in the appellate lawyer’s “toolbox.” There are at least five scenarios in which the petition for writ of certiorari is critical, and counsel must be aware of circumstances dictating strategic decisions that need to be made in order to protect the client’s options for relief in the direct appeal and post-conviction processes.

As Sullivan explains in footnote:

This is the third in a series of articles addressing appellate practice from a different perspective than that usually taken by appellate courts with respect to counsel’s duty in representing the client. It differs from Chief Justice Warren Burger’s approach to attorneys serving as an officer of the court, as he expressed while writing for the majority in Jones v. Barnes, 463 U.S. 745 (1983). For the author’s prior articles addressing a more aggressive approach to appellate advocacy than that taken by the Jones majority, see J. Thomas Sullivan, Ethical and Aggressive Appellate Advocacy: Confronting Adverse Precedent, 59 U. Miami L. Rev. 341 (2005), and J. Thomas Sullivan, Ethical and Aggressive Appellate Advocacy: The “Ethical” Issue of Issue Selection, 80 Denv. U. L. Rev. 155 (2002).

See also the multi-talented Professor Sullivan recently playing Taps.

Policy behind 'home confinement' as criminal sanction has evolved, law grad writes in transnational journal

A graduate of my Comparative Law class and our outgoing Student Bar Association President, Markus Aloyan, J.D. '20, has published a research article on criminal home confinement in the Trento Student Law Review.

Despite the mention of, and my current feeling of, home confinement, I didn't think that the article is related to the pandemic.  And then, lo and behold, college admission scandal perpetrators started staying home (e.g., USA Today, N.Y. Post, L.A. Times).

Here is the abstract.

Markus Aloyan

Home confinement, also known as house arrest or home detention, first appeared in the United States in the 1970s as a form of pretrial release issued after a defendant's indictment. Today, this alternative sentencing scheme possesses several additional purposes. Home confinement is imposable as a form of supervised release from incarceration and as a term of parole. More importantly, it has evolved into a condition of probation and an autonomous criminal sanction that serves in a capacity independent of probation. This article aims to show that although historically spurred in large part by the practical deficiencies of the American prison system (namely its overcrowding and excessive costs), the study of home confinement actuation promulgates a broader understanding of its effectiveness in the promotion of rehabilitation and the prevention of recidivism. Psychological and fiscal aspects will be analyzed with domestic and international (New Zealand) considerations. Concurrently, this paper draws attention to the margin of judicial discretion afforded in shaping individual home confinement implementations, and discusses its advantages and related concerns.

The article is Markus Aloyan, Home Confinement in the United States: The Evolution of Progressive Criminal Justice Reform, 2:1 Trento Student L. Rev. 109 (2020).

Teachable torts: Court succinctly dismisses 'outing' case collateral to terrorism prosecution

Attendees dance during the Lesbian, Gay, Bisexual, and Transgender mixer
hosted by Joint Task Force Guantanamo Equal Opportunity Leaders for JTF
Troopers and Naval Station Guantanamo Bay Residents to honor LGBT
Pride Month in 2018. Photo by JTF GTMO PAO Trooper.

A short decision upon compelling facts in a civil case collateral to the criminal prosecution of Khalid Sheikh Mohammed, accused of being a September 11 architect, offers a worthwhile exercise in the study of tort law.

Semmerling, a lawyer on the defense team of Guantánamo-held Mohammed, accused the head of the defense team of outing Semmerling to Mohammed as gay.  The revelation of Semmerling's sexual orientation resulted in his removal from the team, because Mohammed would not work with a gay (or Jewish) lawyer.

Typical outing cases present some interesting problems in privacy law for several reasons.  First, they emphasize the distinction between the disclosure privacy tort and the defamation tort, because the revelation in an outing case is true.  First Amendment absolutism challenges the disclosure tort for its threat of liability upon a truthful statement, though there is little doubt that the disclosure tort would survive a direct Supreme Court challenge today.

Second, a plaintiff's homosexual (or other non-heterosexual) identity is rarely an absolute secret, disclosed to no one, but more often—and healthily—a personal datum that the plaintiff has disclosed with thought and care to different persons—parents, friends, public—at different times.  But "the secrecy paradigm" that dominates American privacy law disallows tort recovery unless intimate information remains intimately safeguarded.  (This is a critical point of difference between U.S. and European privacy law.)

Third, outing cases are complicated as a matter of social policy, for fear that a liability award might validate the view that homosexual orientation should be a source of shame, so either a truth properly kept secret (privacy tort), or a falsehood injuriously uttered (defamation tort).

This case is not typical—Semmerling's sexual orientation was only a secret to Mohammed—but its unusual facts, assuming the allegations as true for sake of argument on the motion to dismiss, left Semmerling with only less prospect of a tort remedy than usual.

Invoking the common law litigation privilege, the U.S. District Court, per Judge Robert W. Gettleman, rejected claims against the defense team leader herself. The absolute privilege ensures that an attorney has unfettered discretion in communicating with a client on matters pertaining to litigation.  The court also dismissed claims of negligence and intentional infliction of emotional distress (IIED) against the United States as defense counsel's employer.

Tim Jon Semmerling is a Chicago criminal-
defense attorney. In addition to his private
practice, he has worked pro bono for the
Center for Justice in Capital Cases at DePaul
University.

The negligence and IIED claims against the United States did survive dismissal under the Federal Tort Claims Act.  The FTCA on its terms disallows libel and slander claims against the United States, and the court opined that even a defamation claim disguised as IIED (or general negligence) would not survive that disallowance.  For the very fact that Semmerling complained about a truthful disclosure, his claim cannot be equated with libel or slander, and so was not a disguised defamation claim.

On tort law merits, though, Semmerling failed to state a claim, the court ruled.  He tried to predicate negligence on the defendant's one-time assurance to him that she would allow him to work on the case without disclosing his sexual orientation to Mohammed.  That was not basis enough, the court opined, to establish a duty of the United States to Semmerling for the purpose of proving negligence. The court did not wade in more deeply, but I expect that the duty requirement was especially elevated given Semmerling's lack of physical injury.

As to IIED, Semmerling sufficiently pleaded neither intent nor outrageousness.  Semmerling found out about the dislcosure only by way of hearsay and only some time after being fired.  So, the court reasoned, evidence was lacking that the disclosure was calculated to cause him emotional distress.  Also the disclosure was at worst "offensive," the court opined, and not "utterly intolerable in a civilized community," as Illinois law requires.

I wonder whether the facts would have supported a tortious interference claim; alas, that cause is expressly disallowed by the FTCA.

The case is Semmerling v. Bormann, No. 18-CV-6640 (N.D. Ill. Sept. 11, 2019).  HT@ ABA Journal.

[NOTE, Sept. 25, 2019: A generous colleague brought to my attention that the complaint in the case also pleaded defamation.  The claim failed on the litigation privilege as against lead counsel and was precluded by the FTCA as against the United States.  I ought to have marked the point that Semmerling was unable to claim disclosure in part because he guarded no intimately held secret.  The defamation claim was grounded in the allegation that lead counsel falsely suggested to the client a particular sexual interest in him.  That's an intriguing hypothetical when one considers the consequent analyses on the merits, including "capable of defamatory meaning."]

Media didn't totally lose in Boston Globe access case over show cause criminal procedure

The Massachusetts Supreme Judicial Court today ruled against The Boston Globe in the Spotlight team's bid for access to the court records of a narrow class of show cause criminal hearings.  The case is a loss for access advocates, but not wholly.  The court did not deviate from established analyses for access to the judicial records.  And the court used its superintendence power to require data collection for public scrutiny of what happens in these shadowy hearings going forward.

I wrote about this case and these hearings on The Savory Tort in May.  This particular class of "show cause" hearing is a peculiar creature of Massachusetts law and practice, in which a court clerk, not a judge, gets a chance to second-guess police and refuse to issue a criminal complaint, ending a case.  On the up side, this is a process barrier that protects would-be criminal defendants from harsh consequences in minor matters that don't warrant the expenditure of judicial resources, also encouraging alternative dispute resolution.  On the down side, critics have suspicions about these proceedings being used to protect the powerful, to show favoritism among attorneys, and, willfully or not, to effect race and other forms of discrimination in the criminal justice system.

The Globe sought access specifically to records of the sub-class of these hearings in which clerks found probable cause, yet refused to issue criminal complaints.  Public data about these hearings show big disparities among courts in the prevalence of these outcomes, which occur about 9,000 per year in the commonwealth, fueling speculation as to clerks' motives and rationales.  Making matters worse, there is inconsistency in how well clerks record and track what happens in the hearings, often leaving a scant record for review later, whether by a court, public oversight authority, or investigative journalist.

Photo by tfxc. (CC BY-NC-ND 2.0.)

The Globe argued for access under common law, the First Amendment, and the Massachusetts Declaration of Rights.  In today's ruling, the court rejected access on all three bases.  In doing so, though, the court colored within the lines of existing access doctrine.

Most compelling, first, was the Globe's common law argument: "not without merit," the court conceded.  The court acknowledged that the common law presumption of access to court records is known to attach to three classes of records: criminal cases, search warrants and affidavits after service, and public inquiries.  The court rejected analogy to criminal cases, because the show cause hearing occurs before a criminal case is initiated.  Rather, the proper analogy, the court reasoned, is a grand jury refusal to indict, which is sealed presumptively at common law.  The court also rejected analogy to pre-complaint search warrants, reasoning that the appropriate analogy is to the search warrant denied, or not yet served, when the public interest still weighs in favor of secrecy.

Pressing on the scale in favor of analogy to secret proceedings at common law was the privacy interest of the accused.  Here the broader context of the contemporary internet and technology as a threat to personal privacy overshadowed the court's logic.  The court reasoned that a principal common law rationale for secrecy in grand jury proceedings and in denied search warrants, namely, protection of the reputation of the innocent, is powerfully implicated in today's world, when a public record of a show cause hearing could turn up online.  There it would be accessible to everyone, including landlords and employers, who might discriminate against a person who never suffered a criminal complaint.

For the record, this argument for privacy and reputational integrity pulls at even my skeptical heart strings, as I have advocated for American adoption of the European online erasure concept in precisely this vein, notwithstanding First Amendment objections.  That said, I admit, it's a bit troubling to see this problem of unwarranted discrimination arising in the private misuse of information sneaking in through the back door of common law access and accountability analysis as a justification for government secrets.  Arguably the solution to the misuse of information is to do something about the person who misuses information, rather than redacting the free flow of information itself.  But that's a debate for another day.

Second, the court's First Amendment analysis tracked the common law analysis.  On the up side, the court employed the now long known, if no less opaque and controverted, "experience and logic" test of First Amendment access to the courts.  Building upon the analogy of the show cause hearing to grand jury secrecy, access was bound to fail both prongs of the First Amendment test.  Analogy naturally doomed the experience analysis, because pre-complaint criminal process has never been public.  And the privacy concerns fueled failure of the logic test.  The problem with "experience and logic" always has been that its results are foreordained by how one thinks about the hearing or record to which access is sought. 

Third, the court wrote that it never before has construed the Massachusetts Declaration of Rights more broadly than the First Amendment with regard to judicial access, and it saw no reason to do so today.  That disappoints me mostly just from the broad standpoint of liking creative state judicial construction of state constitutions as an instance of the 50-state-laboratory theory of our federalism.  In an age of paralysis in Washington—think gerrymandering—state constitutional law is a promising way forward.

Massachusetts Supreme Judicial Court

Faithful to access doctrine, the court pointed out that upon its very same grand jury analogy, it remains possible for an intervening movant, say, an investigative journalist, to seek access to a show cause record on a case by case basis.  This is a lesser known, and for my money under-utilized, access strategy, so it's pleasing to see the court stamp its imprimatur.  Common law access and secrecy are both presumptions, and each may be rebutted.  The court explained, "In considering individual records requests, the clerk-magistrate should balance the interests of transparency, accountability, and public confidence that might be served by making the requested records public against the risk that disclosure would unfairly result in adverse collateral consequences to the accused."

Transparency may win out, the court advised, in matters of public interest.  "[W]here the accused is a public official, the interests of transparency, accountability, and public confidence are at their apex if the conduct at issue occurred in the performance of the official's professional duties or materially bears on the official's ability to perform those duties honestly or capably."  That's a key check on clerks who might give the politically powerful a break—as long as watchdogs have an inkling to ask.

How will watchdogs know when something is amiss?  Even the court seemed somewhat concerned about the "wide disparities" in dismissed matters in the Globe's data set, e.g., probable cause with no criminal complaint issuing, one year "from a high of 43.9 percent in the Gloucester Division to a low of 0.2 percent in the Chelsea Division."  Though expressly eschewing any conclusion from the numbers, the court observed that "the magnitude of the apparent differences among courts suggests that different clerk's offices might have very different philosophies regarding the adjudication of these hearings."

To help the watchdog, the court exercised its power of superintendence over lower courts to compel electronic recordings of show cause hearings, preserving the record of judicial reconsideration in appropriate cases, and careful compilation of data about the secret hearings, including the race and gender of persons accused, and the names of attorneys in cases of private complainants.  Courts are expected to come into compliance in a year's time and to report anonymized statistics publicly.

Those measures hardly open the door to secret proceedings the way the Globe wanted, and they do nothing about the problem of clerks appointed through political connections playing an outsized role in the criminal charging process.  But the Globe got better than nothing, and maybe the door is cracked open just enough to deter dubious conduct and to squeeze some accountability out through a shaft of sunshine.

The decision against the Globe's petition for declaratory relief came from a unanimous panel of the Supreme Judicial Court, comprising six of the seven justices, and was authored by Chief Justice Ralph D. Gants.  The case is Boston Globe Media Partners LLC v. Chief Justice of the Trial Court, No. SJC-12681 (Mass. Sept. 9, 2019).

'Lights, Camera, Execution!': Political scientist Helen Knowles co-authors new book on capital punishment and popular culture

A new book by poli sci prof and legal researcher extraordinaire Dr. Helen Knowles, SUNY Oswego, has hit the shelf.  It explores the dark edge of the border where popular culture and criminal justice meet.  In this sense it is partly reminiscent of John D. Bessler's unsettling Death in the Dark: Midnight Executions in America (Northeastern 1997) (Amazon).  Supreme Court followers will remember Dr. Knowles for her landmark study of Justice Kennedy in The Tie Goes to Freedom (2009 & updated 2018) (Amazon).

In Lights!, Camera!, Execution!: Cinematic Portrayals of Capital Punishment (Lexington Books 2019) (Amazon), Knowles and co-authors Bruce E. Altschuler and Jaclyn Schildkraut explore the interplay of popular portrayal of the death penalty with the real thing, considering the implications of mass media for policy-making when, literally, lives are on the line.  Here is the publisher's abstract:
 

Lights, Camera, Execution!: Cinematic Portrayals of Capital Punishment fills a prominent void in the existing film studies and death penalty literature. Each chapter focuses on a particular cinematic portrayal of the death penalty in the United States. Some of the analyzed films are well-known Hollywood blockbusters, such as Dead Man Walking (1995); others are more obscure, such as the made-for-television movie Murder in Coweta County (1983). By contrasting different portrayals where appropriate and identifying themes common to many of the studied films – such as the concept of dignity and the role of race (and racial discrimination) – the volume strengthens the reader’s ability to engage in comparative analysis of topics, stories, and cinematic techniques.Written by three professors with extensive experience teaching, and writing about the death penalty, film studies, and criminal justice, Lights, Camera, Execution! is deliberately designed for both classroom use and general readership.

Boston Globe presses high court for access to secret criminal hearings

In fall 2018, the Spotlight team at The Boston Globe—that Spotlight team—published a powerful exposé on "secret courts" (limited free access) in Massachusetts criminal justice.  Now a related case, argued May 7, is pending before the Commonwealth's Supreme Judicial Court.

Julian Assange supporters' sign in front of Ecuador embassy, London, Aug.
22, 2012 (by wl dreamer, CC BY-SA 3.0).

Secret courts are the zombie of First Amendment access in the judiciary. We kill them in constitutional litigation, think they're dead, and suddenly your state courts have been infected and overrun by a whole new horde.  More often than not, new secret court systems blossom to protect the rich and powerful—infamously such as one-time GE CEO Jack Welch whilst in divorce court—from the public scrutiny that attaches to the rest of us dregs, when anyone cares to look. That correlation makes secret courts' resilience a peculiarly American counterweight to our tradition of public justice in open courtrooms.

Yet I put "secret courts" in quotation marks, because it's not clear exactly what are these secret proceedings exposed by the Spotlight team.  They're called "show cause hearings" in Massachusetts law, but even the term "hearing" seems generous.  Under state law, in the absence of an arrest, a criminally accused is entitled to a "hearing" before the court clerk to determine whether charges should issue.  That means the clerk is second-guessing police before the case actually reaches court.

This happens tens of thousands of times per year, the Globe reported.  These "hearings" are not docketed and may leave no paper trail, so if charges are not filed, there is no official record left behind.  The statute that authorizes these hearings pertains principally to misdemeanors, but may be and is used for felony charges, too, in about one in eight hearings, the Globe reported.  The statute itself does not require secrecy, but that's how the process has shaken out.  The Supreme Judicial Court approved secrecy in these hearings, likening them in a 2007 decision to historically secret grand jury proceedings.  But these show cause hearings much more resemble the California preliminary criminal hearings that the U.S. Supreme Court held in 1986 must be open presumptively to the public under the First Amendment.

While the ostensible purpose of this process is to protect the reputation of accused persons while weeding out frivolous claims, it seems many clerks have turned these hearings into an ADR process.  Keeping the accused's name off the records is a bargaining chip to leverage apologies, restitution, or an informal kind of probation.  Outcomes in this vein can be positive for victim and accused; there's no disputing that.  But Spotlight also documented victims of crime and violence who felt their experiences were devalued in secret leniency.  No-charge results have proven problematic especially when emboldened accused persons have gone on to commit violent offenses.

And it's worse than that.  Because as tends to happen in secret justice, persons of privilege—wealth, political clout, social connections, mere representation by a lawyer, which is not required before charges, and maybe mere whiteness, based on disparate-impact statistics, according to Globe research—has a lot to do with what charges get weeded out without a record being made.  Moreover, the Globe reported:

The state’s 68 clerk magistrates at District and Boston Municipal courts operate with enormous discretion to halt criminal proceedings even though many have slender qualifications: About 40 percent of clerks and their assistants ... lack law degrees, one clerk magistrate did not go to college at all, and another has only an associate’s degree.

Often to the frustration of police, some clerks reject charges in big numbers.  "In 2016 and 2017, nearly 82 percent of cases never made it out of a secret hearing in Chelsea," the Globe reported.

Bills pending in the legislature would require a presumption of openness in these proceedings.  But the ACLU of Massachusetts, Greater Boston Legal Services, and the Harvard Legal Aid Bureau all come down on the side of privacy for accused persons.  This is an old story; the ACLU has been torn famously over access and privacy.  I don't mean to be access-absolutist about this, either.  In my view, a big part of the problem stems from our society's overuse of the criminal justice system (read: drug crime) paired with excessive, punitive consequences for criminal-justice involvement (cf. Ban the Box).

1780 Massachusetts Constitution

In the case now pending before the Supreme Judicial Court, the Globe seeks access to records of show-cause hearings in which no charges issued.  The Globe reasons that these court hearings cannot be erased utterly from the public sphere.  That logic is backed up by the Supreme Court's 1986 treatment of California preliminaries, in which media sought records after the fact of closed hearings, as well as clear circuit precedent in the intervening years condemning secret dockets as antithetical to constitutional access to information.  The Commonwealth argued on behalf of trial courts to uphold the grand-jury analogy, reasoning that properly closed hearings yield properly closed records.

I would like to see the SJC take into account that the Massachusetts Declaration of Rights is more expansive than the First Amendment.  Before the First Amendment was even a thing, the 1780 Massachusetts Constitution (my italics) recognized:

Art. XVIII. A frequent recurrence to the fundamental principles of the constitution, and a constant adherence to those of piety, justice, moderation, temperance, industry, and frugality, are absolutely necessary to preserve the advantages of liberty and to maintain a free government. The people ought, consequently, to have a particular attention to all those principles, in the choice of their officers and representatives; and they have a right to require of their lawgivers and magistrates an exact and constant observation of them, in the formation and execution of the laws necessary for the good administration of the commonwealth.

The case is Boston Globe Media Partners LLC v. Chief Justice of the Trial Court, No. SJC-12681.  Watch the oral argument online at Suffolk Law.

SCOTUS, climate change, drug addiction, immigration highlight law and policy issues at UMass colloquium

Today at the Fifth UMass Interdisciplinary Legal Studies Colloquium in Boston, scholars talked about a range of intriguing work, from politics to climate change to drug legalization, being done across the University of Massachusetts campuses—Amherst, Boston, Dartmouth, and Lowell, and Law (at Dartmouth) and Medical (at Worcester).  Here’s a taste.

View of Boston from One Beacon Street today.  "Back Bay is called 'Back Bay' for a reason," UMass Dartmouth Professor  
Chad McGuire said, referring to reclaimed land that is threatened by rising sea levels.

Law and Policy Inside the Beltway
Panel 1—Moderated by yours truly

Queer Sacrifice in Masterpiece Cakeshop, Jeremiah Ho, UMass Law.  Professor Ho explicated his theory of “interest convergence,” and how a lack thereof explains the result in the U.S. Supreme Court’s recent decision in the LGBTQ-rights cakeshop case.  His research shows how images—sometimes literally—of gay identity have informed public and judicial perception of LGBTQ rights cases.  Three more cases lie on the horizon, in the Court’s next term, Ho said, so stay tuned.   Meanwhile preview his "Queer Sacrifice" work, just out in the Yale Journal of Law and Feminism, at SSRN.

Can Presidents Influence Public Attitudes Toward the Supreme Court? Evidence from a Survey Experiment, Paul M. Collins, Jr. (blog), Department of Political Science, UMass Amherst.  Collins’s long-term research digs deep into how statements and action by the President of the United States exert influence over public perception of the U.S. Supreme Court and its decisions.  What the President says matters; consider, Collins proffers, the White House has a whole office dedicated to SCOTUS spin.  Collins also notes that low public knowledge of the Court is a factor in allowing public opinion to be influenced by forces external to the Court.  I can’t help but think about the Court’s intransigence on cameras and public access.  Anyway, Collins has discovered that the public is more easily influenced on “low salience” issues, but less so on “high salience” (I’d say “hot button”) issues, such as immigration.

On the Supreme Court of the United States of America (and Congruent Agencies and Ministries in the Term of President Donald Trump), Judge Francis Larkin, UMass Law.  Judge Larkin shared observations of recent events in President-Court interaction.  He recalled FDR’s Court-packing plan, relative to its recent resurgence in politics (e.g., WaPo).

Forcing Disclosure, Justine Dunlap, UMass Law.  Professor Dunlap is looking at mandatory disclosures under Title IX, especially faculty duties.  She observes that the evolution of Title IX over recent decades, under administrations from both sides of the aisle, have fairly sought to respond to a real problem of unredressed sexual harassment and assault on college campuses.  But the responses have not always been well tuned.  And mandatory reporting, however well intentioned, can put faculty in the impossible bind of having to betray student trust.  (Professor Julie Baker in Q&A aptly noted also that the consequences of ill-tuned reporting schemes for accused perpetrators are not always conducive to dispute resolution or justice.)  Dunlap talked about a system being implemented at the University of Oregon that contemplates a third class of potential “reporter”—rather than all or nothing, a “student-directed reporter.”

Recovery, Resiliency, and Equality in Economic Development
Panel 2—Moderated by Professor Justine Dunlap, UMass Law

Opening for Business: Tax-Haven Economy and the State of Exception in Puerto Rico, Jose Atiles, Department of Political Science, UMass Amherst.  Professor Atiles is working on Puerto Rico and U.S. development strategies.  He explained that there are two prevalent approaches to development policy concerning the island, one the “blank canvas” approach, which encourages recovery investment on the selling point that, more or less, my words: there’s nothing there at present; two the “PR is open for business” approach, which seeks to exploit the island’s legal status as a tax haven.  Both of these representations are animated by a “neoliberal-colonial rationality,” and that troubling mindset is reflected in the law that facilitates these strategies.

I’m reminded of the colonial terra nullius doctrine with respect to the blank canvas, and the local-policy-characteristic Everett casino debate with respect to “open for business.”  Puerto Rico and its people are not our offshore plaything.  In Q&A, I asked Atiles what it would take for us to start thinking about PR more like we do Missouri.  Statehood and independence each have advantages and drawbacks, which he explained summarily; what won’t save PR, he said, is the status quo.

A “Least Regrets” Framework for Coastal Climate Change Resiliency Through Economic Development, Chad McGuire and Michael Goodman, College of Arts and Sciences, UMass Dartmouth.  Professor McGuire continues his renowned work on environmental conservation and climate change, and now he’s brought public policy numbers wizard Professor Goodman (also president of the UMass Dartmouth Faculty Senate) onto the team to look at the economics.  They’re attacking the problem of aligning shorter-term economic incentives with the longer-term public interest in saving the human race from extinction.

I just saw Dan Gardner on The Daily Show talking to Roy Wood Jr. (video embedded below) (let me remind everyone that I shook Roy’s hand in East Providence) talking about how our “caveman” brains don’t well process the threat of climate change because it’s too abstract, that we need more urgent messaging.  McGuire and Goodman have it.  As I’m wearing a sweater in May, McGuire observed: “Spring has become less of a thing, and winter moving into summer is becoming more of a thing.”  We’ve lost 15-30 days of winter in New England, he shows with data, and seasonal transitions are becoming more abrupt.  Then he directs us toward the view of Boston from our huge glass windows here in the 32nd floor of One Beacon Street.  “Back Bay is called ‘Back Bay’ for a reason,” McGuire said.  Boston sits on filled-in bay.

At lunch, McGuire told me about rubber buffers that run through Boston streets to absorb shifts in the aqueous earth beneath.  And he told me about the latest alarming findings from the Ross Ice Shelf.  Our society has invested a great deal in developing low-lying land, and we’re going to have reconcile that policy with our climate game.

Human Rights Responses to Economic and Social Inequalities—A Book Proposal, Gillian MacNaughton, School for Global Inclusion and Social Development, UMass Boston.  For my money—both figuratively and literally—Professor MacNaughton’s work is what we need to save humanity from catastrophe—after and assuming we figure out how to survive climate change.  MacNaughton takes what we know and bemoan about inequality of wealth and opportunity in the United States and runs writ large with the problem.  As she wrote in her abstract: “The Global Wealth Report 2017 reveals that the wealthiest 1% of the global population owns 50% of global assets, while the poorest 50% owns less than 1%.”  Building on the U.N. Sustainable Development Goals, she plans to propose putting some punch behind international treaty guarantees of social and economic equality, such as we might start to address this problem on the global level.  I’ve often lamented that our increasingly disparate economic stratification will be our undoing in the United States if we don’t address it.  It’s worth being reminded how much more desperate the situation already is worldwide.  See also Professor MacNaughton's recent co-edited book, Economic and Social Rights in a Neoliberal World (Cambridge University Press 2019).

Drug Use and Abuse, and the Criminal Justice System
Panel 3—Moderated by Professor Julie Baker, UMass Law

Is Marijuana the Gateway Drug? Maybe Not, But Its Legalization Could Be, Nikolay Anguelov, College of Arts and Science, UMass Dartmouth.  Professor Anguelov is known to many of my readers and former students as the author of the 2015 book, The Dirty Side of the Garment Industry: Fast Fashion and Its Negative Impact on Environment and Society (CRC Press) (Amazon).  I have heard him speak many times to awestruck and sometimes squirming audiences about the connection between their affordable clothing and Bangladesh waterways poisoned with dye and arsenic.  Anguelov is more recently author of From Criminalizing to Decriminalizing Marijuana: The Politics of Social Control (Lexington Books 2018) (Amazon).  Anguelov is now fine-tuning his formidable research into marijuana use.  His early data invite the conclusion that legalization—which I as a libertarian have favored—might be contributing to the opioid epidemic at least by “contributing to the cultural normalization of drug use and experimentation.”  Ruh-roh, Shaggy.  This is going to require further research, and I’m anticipatorily squirming in my H&Ms.

Recovery Coaches in Opioid Use Disorder Care, Matthew Maughan, UMass Medical.  When opioid addiction turns to recovery, attorney Matthew Maughan is the policy guru to turn to.  Informed by his multifaceted experience and research, he explained the role and peculiar success of the “recovery coach.”  It might be awkwardly unorthodox in terms of developing a large-scale model, but sometimes a block grant for an activity tailored to a person’s specific needs offers the best hope for recovery and might as well be cost effective.  Maughan recounted the story of a recovery accomplished through mental clarity achieved on the water on a kayak, under the guidance of a recovery coach.  That’s got to cost less than any bill I’ve ever gotten from a medical clinic.

Locating Cannabis Equity: Defining Areas Impacted by Drug Criminalization, Michael Johnson, Professor and Chair, McCormack Graduate School, UMass Boston, and Jeffrey Moyer, doctoral candidate in public policy, UMass Boston.  Moyer is working with Professor Johnson to study the intersection of enforcement and anti-discrimination.  Specifically, he asks whether the Massachusetts “Cannabis Control Commission’s use of a race-neutral variable is effective in selecting areas disproportionately impacted by criminalization.”  Part of the work has entailed mapping all drug arrests, which generates some compelling graphics when overlaid with demographic data.  I am reminded of being a journalism intern at WJZ-TV in Baltimore in the early 1990s, when we made an analog map—this was when we were still working on DOS-based computers—literally putting color pushpins in a map of Baltimore to look at the coincidence of murders with factual and demographic elements.  That was a time when we were first talking about the problem of race and policing “where the crime is.”  We also walked five miles to school, uphill both ways.

Moyer shows analysis of geographic data on police enforcement, obtained in part through a public record request.

To Plea or Not to Plea: A Virtual Simulation of Plea-Bargain Scenarios, Miko M. Wilford, Psychology Department, UMass Lowell; Annabelle Frazier, doctoral candidate in applied psychology, UMass Lowell; Kelly Sutherland, doctoral candidate in applied psychology and prevention science, UMass Lowell.  With doctoral candidates on a new applied psychology track at UMass Lowell, Professor Wilford is taking a behavioral look at plea bargaining, that irksome feature of the criminal justice system that we don’t like to talk about, even while we know it results in some guilty pleas calculated to avert draconian outcomes (my take).  Really they’re looking at the research of plea bargain research, trying to refine how we learn about people's decision-making processes in these high-stakes circumstances.  Perhaps no surprise once you think about it, it is difficult to simulate having so much at stake with volunteers in psychology-lab experiments.  The team is working on new, high-tech models using animations to engender empathy and generate better results.  See more at the project website, Pleajustice.org.

Personal Rights at the Borders

Panel 4—Moderator: Misty Peltz-Steele, UMass Law

Controlling Asylum: A Genealogical Analysis of Gender and Race Intersectionality, Phil Kretsedemas, College of Liberal Arts, UMass Boston.  Professor Kretsedemas is studying the status of domestic violence survivors and Latin American asylum seekers relative to Matter of A-B, an AG-Sessions opinion “that dramatically curtails asylum protections for survivors of domestic violence, and for many other people who have been persecuted by non-state actors.”  A U.S. District Court has lately pushed back on Sessions’s conclusions, Kretsedemas said, as he investigates the problem from critical dimensions of gender and racial equality.  Kretsedemas’s approach is further informed by comparative law, as he draws on parallel legal perspectives from foreign tribunals, including the U.K. House of Lords, and from parallel cultural perspectives, such as Guatemalan views on gender roles within families.  Present policies, focusing for example unduly on familial cohesion, have gravely injurious impact, for example failing to protect women from female genital mutilation.  Kretsedemas locates these policies in a context that includes family separation, though the latter issue has garnered greater public attention.

Troubling Bodies: The Office of Refugee Resettlement and the Unaccompanied Pregnant Teen, Shoshanna Ehrlich, College of Liberal Arts, UMass Boston.  Also examining a perhaps under-recognized issue within our vast immigration policy debate, Professor Ehrlich is studying the federal government’s “literal refusal to release [young women] from . . . custody so they may access abortion care,” plainly violating their civil rights, Ehrlich asserts.  Even the U.S. Government waived argument in the courts as to whether the teens involved here enjoy U.S. constitutional rights.  Yet in government memos discovered in ACLU litigation, Ehrlich shared in her presentation, Scott Lloyd, director of the Office of Refugee Resettlement (ORR), opined that abortions desired even by teens impregnated by rape are not in the young women’s best interests.  Lloyd was removed from his post and “transferred to HHS’s Center for Faith and Opportunity Initiatives,” Rolling Stone reported in November 2018.  He was later summoned to testify in Congress about family separations, Politico reported in February 2019.  Ehrlich told of interviewing parents the government separated from their children, and the trauma that resulted, wondering how the government could at the same time justify refusing abortions on the rationale that mothers should not be separated from their unborn children, despite their personal circumstances and decisions.