Gideon ()

“A free people [claim] their rights as derived from the laws of nature, and not as the gift of their chief magistrate.” So wrote Thomas Jefferson in 1774, foreshadowing his more famous quote about the “inherent and inalienable rights” of men, in the Declaration of Independence.

To me, what Jefferson meant by that is that we, as humans and citizens of a great free democracy have certain inherent rights that are ours by the very nature of our existence and these rights are not dependent upon the charity of ministers, politicians and judges.

Yet, for the most part, the realm of criminal law has continually drifted away from this Jeffersonian concept of “self-executing” rights and toward a more passive, dormant view of individual liberties and freedoms that need to be invoked to be awakened into performing their duties as our guardians. The right to remain silent now only applies if you break that silence and state out loud that you wish to remain quiet. The right to an attorney has to be unequivocally and explicitly invoked. The police cannot enter your home without a warrant except when they can and may do so even over your objection.

There is, then, a new generation of jurisprudence that has turned our jurists into something akin to DMV clerks whose primary function is to determine whether the forms have been filled out correctly.

But for those that don’t practice criminal law, let President Jefferson remind you why you should care: “What is true of every member of the society, individually, is true of them all collectively; since the rights of the whole can be no more than the sum of the rights of the individuals.”

It is thus critical that each and every one of us is aware of the ministerial treatment given to our rights. And the primary way in which courts have done that is to make the defense attorney the steward of those rights and placed her in the driver’s seat.

Of course that makes sense, you protest. It does, to the extent that the defense attorney is entrusted with being an advocate for an individual charged with crimes and is the representative of that individual in court. But when you change the very nature of the rights to make them not self-executing, but rather dormant, awaiting the utterance of an incantation by a defense attorney, is when you strip the judge of her traditional role of overseer of due process and justice.

The logical outcome of such a restrictive view of appellate review is that courts are confronted with a scenario where an obviously illegal and unconstitutional act occurs during a trial and because the defense attorney fails to recognize it, relief must be unjustly denied.

This corner that our supreme court has painted itself into was squarely before it this week in State v. Raquann Davis. In Davis, the trial court clearly instructed the jury contrary to the law, to the detriment of Davis. His lawyer, however, did not object to this faulty instruction. Under our existing jurisprudence, this obviously illegal conviction must be allowed to stand.

Hiding behind the plea of saving trial judges from “trial by ambuscade,” our appellate jurisprudence, as concretized and heartily endorsed in the 2011 decision of State v. Marvin Kitchens, has turned into more of an exercise in officious form checking than an examination of the fundamental fairness of a criminal trial whereby the liberty of an individual has been taken away.

The premise is simply this: an appellate court will not review a claim of error — evidentiary or constitutional — if it was expressly or impliedly waived in the trial court. Every decision made by a defense attorney during the course of a trial is deemed to be a deliberate tactical decision — not only a decision to ask for the thing sought, but also a decision to not ask for everything else.

You can see the obvious problems with this: it is humanly impossible to be that prepared. By making the rights of an individual dependent on the imagined and unrealistic tactical decisions of overwhelmed trial attorneys — and all attorneys are overwhelmed during trial – the courts have, in essence, created a presumption against appellate review.

What is not as immediately apparent, however, is that this philosophy makes the availability of rights to individual citizens dependent on the skills of a particular attorney and the time that she has to devote to preparing for trial in any case. This implicitly perpetuates the notion that those with money are bound to get the full benefit of their individual rights, while those who do not will have to rely on attorneys who they don’t get to choose or those who aren’t as qualified or who are overworked and thus those individuals run the risk of being punished.

Making rights dependent on the ability of the lawyers is making the rights optional.

It seems that perhaps the court in State v. Davis might have gotten the hint that its crusade has gone too far, but unfortunately that pronouncement remains for another day. In order to avoid the embarrassment of admitting that it had walked itself into an entirely illogical and altogether foreseeable application of its doctrine, the majority found a way to avoid confronting the issue head on with the assistance of some dubious reasoning.

Justice Richard Palmer, in a blistering concurrence the likes of which haven’t been seen since the retirement of Justice Robert Berdon at the turn of the century, points out this very hypocrisy in the majority opinion in Davis and urges a rejection of the principle endorsed in Kitchens.

Kitchens requires us to presume, first, that counsel thought of every possible claim, from the most meritorious to the most frivolous, and everything in between, and, second, that, upon due consideration of each and every one of those claims, counsel decided to abandon them all, presumably for strategic reasons,” Palmer write. “Because it is obviously impossible for any defense attorney, or any team of defense attorneys, to conceive of all potential claims, whether meritorious or not, it is clear that Kitchens is predicated on a palpably unrealistic assumption.”

But Justice Palmer himself shouldn’t be let off so easily, for he authored the majority opinion last year in State v. Jorge P., a case that functionally employs the same logic as Kitchens. In Jorge P., the defense attorney objected at trial to the testimony of a pediatrician who specializes in child abuse on the grounds that the pediatrician was going to offer opinion testimony as to the ultimate issue in the case. The court deemed that the issue was not preserved for appellate review despite conceding that one interpretation was that the defense attorney objected on the grounds that the pediatrician’s testimony would constitute vouching for the complainants.

As a result, no appellate court in Connecticut reviewed Jorge P.’s real claim of error because his attorney failed to utter the magic words in a precise order to the liking of a reviewing court. Thus, the question of whether a trial court impermissibly let a witness testify as to the ultimate issue for the jury went unexamined.

And therein lies the problem with this change in approach: judges have gone from guardians of justice and gatekeepers of evidence to passive observers of a trial; no more than spectators who are called upon to call balls and strikes from time to time. Meanwhile, trials have been allowed to occur unscrutinized, unexaminated and potentially rife with error.

Why are we content to see judges relegated to the role of umpires? Wouldn’t justice be better served if our judges returned to judging the enforcement of our “inherent and inalienable rights”? Can rights that are not self-executing, but rather granted at the discretion of our “chief magistrates” be called rights at all?