The Kickham Comment - Boston Criminal Attorney Blog

Gov. Deval Patrick likes to fashion himself as a typical “man-of-the people” Democrat. Except that he’s anything but that, and knows very little about the everyday workings of the “average person” on the street. That should come as no surprise to anyone, given that he’s a multimillionaire who made his money in the corporate world, but his latest legislative proposal concerning legal practice only underscores his cluelessness about real world economics, and the way state government really, actually works.

Patrick’s latest proposal revolves around how indigent criminal defendants are provided legal counsel in Massachusetts. As anyone who’s ever heard of the Miranda Rights knows that if a person is charged with a crime in any state in the United States, and cannot afford an attorney, one will be provided for him or her free of charge. Different states fulfill this federal requirement in different ways. In Massachusetts, for decades now, defense lawyers for indigent criminal defendants have been provided almost completely by a network of private attorneys, who are contracted with the state to provide these services. The agency that administers this program is called the Massachusetts Committee for Public Counsel Services (“CPCS”,) and operates under the Massachusetts Judicial Branch.

These attorneys, known as “Bar Advocates”, must first complete appropriate CPCS training and certification requirements before they can become eligible to represent indigent criminal defendants. It is Bar Advocates who defend 90% of indigent defense cases in courtrooms across the state, from Pittsfield to Provincetown; Methuen to Martha’s Vineyard. The other 10% of these cases, the vast minority, are handled by lawyers who are full-time state employees, complete with annual salary and benefits. Private duty Bar advocates are paid anywhere from $50 to $65 per hour, to defend people charged with a variety of crimes, 99% of which can land them in jail for anywhere from a day to life. However, court-appointed attorneys also represent indigent clients in extremely important non-criminal cases, such as representing families that are involved with the Department of Social Services, and people who are at risk of civil commitment and forced medication.

The Supreme Judicial Court ruled this week that foreign nationals, including illegal aliens, must be provided with the opportunity to be in contact with diplomats from their home country when facing criminal charges in Massachusetts. The court ruled that the right is guaranteed by the Vienna Convention, which is an international treaty adopted by the United States in 1969.

More so, the SJC also ruled that foreign nationals who are convicted of a Massachusetts crime will be allowed to seek a new trial if they can satisfy two tests: 1) That they were not informed about this right; and 2) That the lack of this information played a role in their conviction. At least one prosecutor reacted to the decision by saying that it has the potential to unleash a flood of costly litigation. Essex County District Attorney Jonathan W. Blodgett commented that “There is no limit to this, we will be flooded with motions for a new trial.” Blodgett asserted that even though the Vienna Convention is a treaty between sovereign nations, the SJC has made a foreign treaty part of the fabric of individual rights in Massachusetts. Blodgett plans to file legislation asking the Massachusetts Legislature to reverse this decision. On the opposing side, immigration lawyers and criminal defense lawyers say the court’s ruling merely reinforces rules that have already been on the books in Massachusetts for many years.

The unanimous 7-to-0 ruling noted that even though the United States had ratified the Vienna Convention in 1969, the International Court of Justice in The Hague ruled in 2009 that the United States had not complied with the Convention’s rules on diplomatic contact when dealing with Mexican nationals. Justice Robert Cordy wrote that Massachusetts will now take steps to bring the state into compliance with that treaty: “In order to enable the full effect to be given to [the Vienna Convention], we conclude that the notifications it requires must be incorporated into the protocols of the state and local law enforcement agencies of Massachusetts.”

In my previous post on this subject, I discussed how the U.S. Supreme Court is currently weighing the constitutionality of a statute passed by the state of California in 2005, to limit the sale of graphically violent, interactive video games to minors under the age of 18.

Once again, the First Amendment is front and center here. This Amendment to our constitution – literally, the first Amendment made to it, allows us all to speak openly against the government, a fundamental right that many nations do not allow their citizenry. There are forms of speech that are not protected by the First Amendment, such as obscenity. Other forms of such “unprotected speech” include speech which creates a “clear and present danger” of imminent illegal action; speech which contains narrowly predefined “fighting words”; written or spoken falsities (libel or slander, which can be punished by civil suit); and speech that is restricted because the government can demonstrate a “narrowly tailored” “compelling state interest”.

So free speech is not absolute, but in my view as a Boston criminal defense lawyer, the meaning of the First Amendment has been distorted in recent years to allow for all manner of violence and savagery to be paraded throughout our nation – under the aegis of “free speech.” The result has been a “quicksand effect”, dragging down a nation that was once admired for its morality and decency, to a country infected with violence, moral perversity and the cultural degradation that accompanies such permissive thinking.

Each October, the Supreme Court of the United States (SCOTUS, in the legal community,) hears arguments on cases that it has announced earlier in the year, that it will hear. Last month, it heard oral arguments on a California law that sought to ban the sale or rental of violent video games to teenagers under the age of 18. What happens with this decision, which may be announced next June (2011) will impact the moral direction of this country in ways that most people cannot yet even imagine.

As I wrote this post, I considered where I should publish it: Here on my criminal law blog, or on my Boston Accident Lawyer blog. I decided to publish it here, not only because the issues involve criminal law, but for a more important reason: I consider the gradual erosion of decency, dignity and public morality in this country to be a crime. I also consider it a “crime” (symbolically speaking) that we have a Supreme Court that routinely fails – using liberally expanded interpretations of the First Amendment and definitions of “free speech” – to allow state and local governments to enact laws that will stem the rapidly growing spread of violence and barbarism that infects our nation. I say this as a Boston criminal attorney who believes that the court should always intone the First Amendment to safeguard the individual’s right of free speech against government. I do not believe the First Amendment should be misused to allow any and all kinds of speech, no matter how destructive or dangerous, anywhere, on any subject, in any form, at any time. That is not what the First Amendment was intended to protect, and its perversion has produced devastating social and cultural effects in this country.

This current case before the Court is not a standard, run-of-the-mill case about the First Amendment and “free expression.” Nor, despite its facial appearance, is the case really about “commercial free speech.” Don’t let liberal-leaning reporters and writers fool you that this case is about such high-minded, deep-thinking constitutional principles (though, as with all cases before the Court, this case does involve constitutional issues.) This case is about moral integrity, and human integrity. It is about the protection of minors, whose brains under the age of 18 are not fully developed and medically proven to be vulnerable to the suggestive and pernicious effects of violent imagery. It is about the protection of our country from the rapid and virulent infection of violence that plagues seemingly every corner of our society – from gritty urban streets, to bucolic rural towns in New Hampshire. It is about the protection and promotion of dignity and decency – and of the rapid decline of those once so American of values. In essence, this case is about the frighteningly rapid degradation of morals and the escalation of savagery in this country, accelerated under the aegis of “free speech” and “constitutional principles.” Make no mistake: This case will be a barometer of where this country is headed – sinking into an ever-deepening sewer of moral filth and cultural degradation – or rising once again to be the decent, values-laden country that it once was.