Wednesday, May 30, 2007

I Forbid ALL of it

Q: What is the “line-item veto” and why is it unconstitutional?

A: To understand what a “line-item” veto is, we should probably start with understanding what a “veto” is. According to Sidebar’s handy-dandy Black’s Law Dictionary (BLD), the word “veto” is a noun of Latin descent meaning, “I forbid.” The BLD goes on to explain that the word means, “ a power of one governmental branch to prohibit an action by another branch.” The line-item veto, then, means, “the executive’s power to veto some provision in a legislative bill without affecting other provisions.”

Let’s review the high school civics lesson, “How a Bill Becomes Law,” once again. Remember, a bill is introduced in either house, it is debated and crafted in committee and floor debates. Once it passes both houses, it is whisked up Pennsylvania Avenue to the Oval Office (or, in WV, downstairs to the Governor’s office) for the Executive’s signature. When the Executive receives the bill, he has a choice: sign it into law or veto it outright. What many Executives have wanted, but cannot have, is called the “line-item” veto.

Let’s take a recent bill as an example: the Iraq Spending Bill (ISB). The ISB has taken a variety of iterations and, clearly, the White House and the Democrat-led Congress are at odds with the spending priorities and timelines governing a less than popular fight in Iraq. The White House has made abundantly clear that the President will refuse to enact anything requiring “timelines” for the withdrawal of troops. Congress has, at least twice, sent a version of the ISB that has timelines connected to the funding of the troops. The President has, at least twice, vetoed such legislation.

The first ISB that traveled sixteen blocks down Pennsylvania Avenue carried a host of “riders,” or attachments, to the bill having little or no connection to the stated purpose of the piece of legislation. Most of these riders were pet projects that simply secured the positive vote of various undecided Legislators.

Had the President had the use of he “line-item” veto, he could have simply crossed through the riders and the timeline for troop withdrawal, and enacted the remaining funding bill. But, he could not because, in the case of Clinton v. City of New York, the Supreme Court of the United States has deemed such a practice unconstitutional.

SCOTUS reasoned that the “line-item” veto violated the “Presentment Clause” of the U.S. Constitution, which reads, “Every Bill which shall have passed [Congress], shall, before it becomes a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections.” (Article I, Section 7, Clause 2.)

Essentially, SCOTUS said that the “line-item” veto would interject the Executive into the Legislative experience, upturning what one court has termed the, “finely wrought and exhaustively considered procedure.” The “line-item” veto would essentially bleed the distinct duties of the Legislature and the Executive, blurring what should be sharply different.

What would be the point of Legislative debate if a single person could simply strike through an entire portion of proposed law that he or she did not like? Such is simply anathema to the representative democracy in which we live.

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Copyright Jeremiah G. Dys 2007. May not be used absent express, written permission. Please contact the author for permission to reprint.

Wednesday, May 23, 2007

And So It Begins

Q: What is an opening statement?

A: Our ongoing series on the criminal trial has worked itself through indictment and arraignment, and discussed most of the players of the criminal trial, including the jury itself. It appears, therefore, that all the players are in place. How does the trial begin?

Once the jury is assembled and in place, the judge calls the case on for trial. Usually that is done much less dramatically than what we used to see Judge Wapner and his bailiff do. Judges may, but rarely do, bang the gavel to quiet the courtroom, but usually, the bailiff’s demand that, “All rise! The Court of [Insert county name] is now in session, the Honorable [Insert full name of judge] presiding,” usually gets the attention of the gallery.

Sidebar: You may recall from Perry Mason, or other courtroom dramas, hearing the bailiff say, “Oyez! Oyez! Oyez!” and going on to call the trial to order. This is true. In fact, many courts still use the crying of “Oyez!” to open the court proceedings. The Supreme Court of the United States still does, as does the Supreme Court of Appeals of West Virginia. “Oyez!” is of Latin-Old French origin meaning, “Hear Ye.” The practice of using this interjection at the beginning of a trial dates back to the days when the Town Crier would wander the community using the exclamatory statement to secure the attention of his countrymen. Since the uttering of the phrase both gets the attention and signals that a serious matter follows, “Oyez” has become as much of a staple of courtroom tradition as the gavel has. End sidebar.

With the courtroom’s attention fixed, the Judge calls the name of the case, State v. John Doe, and the case number, 07-F-1. He then notes the presence of the prosecuting attorney, the attorney for the defendant, and that the defendant is present, in person. All of this, of course, is being dutifully recorded by the court reporter.

What happens next is most adequately described as a procedural roadmap. Remember juries are made up of ordinary folk who have little or no experience with the legal process. There is no required course in high school civics called, “Juries 101,” nor is the book, “Juries for Dummies” readily available, so most jurors are come to the adjudicatory process not knowing what to expect.

The judge welcomes the jury and begins his portion of the roadmap. He instructs them as to their duty as triers of fact and distinguishes that duty from his own duty as all matters legal. He informs them that objections and private discussions may arise that they need not concern themselves with; that’s the judge’s job. The judge sounds much like a bad episode of Dragnet during his monologue: “Only the facts, jurors.”

He then affords the attorneys the opportunity to make an opening statement. An opening statement serves the purpose of presenting to the jury what each attorney thinks the facts will prove. The ideal opening argument is less persuasive and more informative, less of a legal argument and more of a factual presentation. It is the first step of the old adage, “Tell them what you are going to tell them, tell them, and tell them what you told them.” It alerts the jury to the theory of the case that the attorney has chosen, providing markers for the jury to remember throughout the trial. In short, it gives, in the form of an outline, the jury a sneak peak at the attorney’s game plan.

Once each side has made their opening statement, the trial is officially underway.
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Copyright Jeremiah G. Dys 2007. May not be used absent express, written permission. Please contact the author for permission to reprint.

Monday, May 14, 2007

Still a Nation of Men

Q: What does it mean that we are a nation “of laws not men?”

A: This sound bite is taken from one of the earliest cases in American jurisprudence: Marbury v. Madison, a case held out as justifying the doctrine of judicial review. It was Chief Justice John Marshall who authored the now infamous phrase, saying: “The government of the United States has been emphatically termed a government of laws and not men.” Marshall’s infamous one-liner has resounded through the ages finding voice in Presidential addresses and protest marches alike.

To be a nation “of laws and not men,” removes the subjectivity of fool-hearted men and imposes the objective independence of the law. In an ideal sense, the phrase suggests that each citizen of this fair country – the poor, the rich, the farmer, the broker, the Senator, the dog catcher – is under the law. Stated another way, no one is above the law.

In a certain sense, this has remained true. We have seen presidencies toppled because the Chief Executive broke the very laws he was charged with executing. Judges, Senators, and Congressmen alike have all been brought from lofty positions of power to none at all by the sword of Lady Justice. Indeed, it is Lady Justice that embodies Marshall’s words: she wields her sword blindly, caring not for whom it strikes, but only for justice.

But is this the case today? Are we truly a nation “of laws not men?”

Some may point to the perceived illegalities of wars or covert activities of government. Some may suggest the actions of certain judges liken them more to subjective legislators, rather than dispassionate arbiters. Some may even suggest that laws can have no objective basis for what is right for one might be wrong for the next. In so doing, each is implicitly attempting to debunk the wisdom that was Marshall’s mantra.

Marshall appears not even to agree with himself. He went on in Marbury to say, “It is emphatically the province and duty of the judicial department to say what the law is.” In so stating, he seemingly elevated to a position above the law his brethren of the black robe.

But the seeming dichotomy is explained by understanding, as Marshall did, the three interconnected sources of law. There is a fundamental law. This is what is referred to in our Declaration of Independence as “the Law of Nature, and of Nature’s God.” It is a transcendent law, inescapable in its universal application. But there is also constitutional law, which establishes the order and form of our civil government.

Finally, there is the legislative law, as written by legislators. Interestingly, the word “legislator” means, literally, “to carry the law.” A legislator, then, is to carry the law that exists at the fundamental level and apply it to the constitutional framework. Apart from that, law lacks meaning and is contrary to the very fabric of nature. That duty of a legislator is what is meant by another famous phrase: “law is found, not made.”

The law of the legislator must agree with the “Law of Nature, and of Nature’s God” lest our rights be weakened at the fundamental level and we become a nation of men and not law.
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Copyright Jeremiah G. Dys 2007. May not be used absent express, written permission. Please contact the author for permission to reprint.

Monday, May 07, 2007

Juries Are All About the Facts

Q: What is the role of the jury in a criminal trial?

A: Trials follow arraignments, which follow indictment, which are produced by grand juries, which are assembled after criminal charges are filed against an alleged criminal. There are four essential roles in a criminal trial: the prosecutor, the defendant, the judge, and the jury. The prosecutor, as you might have guessed, prosecutes the defendant, who defends himself as necessary. The judge presides over all matters of law in the trial. It is the unique province of the jury to determine the facts of the case.

Juries are picked from a random sampling of the defendant’s peers, as the Sixth Amendment to the U.S. Constitution requires. In felony cases, twelve jurors are required to constitute a petit (as opposed to a “grand”) jury. The West Virginia Code requires that a qualified panel of at least twenty jurors be presented in order for a jury of twelve to be picked.

When twenty random names are picked from the list, the process of voire dire (pronounced, “vwah-deer”) begins. Voire dire literally means, “to speak the truth” and is used to produce a jury whose minds, as one court has said, “wholly free from bias or prejudice.” Typically, the judge begins the voire dire process by asking a litany of general questions: “Do you know the lawers?”, “Do you know the defendant?”, etc. Once the judge has determined that there are twenty qualified, prospective jurors, he allows each attorney to voire dire the jurors.

The attorney might ask if the jurors have heard anything about the case, if they have a prejudice against particular crimes, if their work gives them special knowledge about the matter to be tried, etc. Attorneys have even been known to ask about whether jurors listen to talk radio in an attempt to peg one’s political persuasion. The goal of each attorney is, superficially, to obtain an impartial jury. In reality, each is attempting to determine which jurors are more likely to be sympathetic to their position.

Once the attorneys are finished, they are permitted to exercise their “strikes.” Strikes come in two forms: “peremptory” and “for cause.” Each gets four peremptory strikes, meaning, they can cut a juror for any reason they want. Strikes “for cause” are limitless, but can only be exercised when true instances of bias or prejudice are shown. For instance, if an Elbonian is the defendant in the criminal case, and a potential juror is the sworn enemy of the Elbonian people, that juror might be stricken “for cause.” But, if that same juror’s dislike of the Elbonians is based solely upon the way Elbonians are described in the comic “Dilbert,” it is likely that the juror could be rehabilitated and the prejudice dissipated.

When the panel of twenty prospective jurors is complete, eight must be stricken. The prosecution and defense take turns striking jurors, until the number remaining is twelve. Exactly why jurors are struck peremptorily is largely unknown – even to most attorneys. Many have theories about the ideal jury, but if you asked most attorneys, they would probably tell you that certain jurors are struck mostly on “gut instinct.”

It may be an imprecise science, but it is remarkable how often well-balanced juries are chosen. It is not uncommon for juries to have a coal miner sitting beside an executive sitting beside a homemaker. The greater the cross-section of society that juries represent, the more objective the jury becomes.

It is its objective nature that makes trial by jury such a hallmark of our democracy.
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Copyright Jeremiah G. Dys 2007. May not be used absent express, written permission. Please contact the author for permission to reprint.