LAW FROM THE CENTER

Dahlia Lithwick from Slate writes about arguments today in the Supreme Court:

Even criminals deserve to understand the workings of the criminal-justice system. This is the basis for landmark Supreme Court cases like Miranda v. Arizona (requiring cops to advise you of your rights upon arrest). The theory is that criminals have certain rights and privileges, which are of little utility to them if they remain unknown. But it's not clear what the reasoning is behind the argument that criminals also have the right to be breastfed, burped, and cuddled by the criminal-justice system, although that seems to be the theory advanced this morning in Iowa v. Tovar.

Felipe Tovar has been arrested for drunken driving three times. In 1996 and 1998, he waived his right to an attorney and pleaded guilty. In 2001, when Tovar was found guilty of a third drunken driving offense (third time's a felony in Iowa) the court had no choice but to impose jail time. Tovar claims that the earlier convictions shouldn't count toward enhancing his third sentence because when he waived counsel and pleaded guilty, he did so without having received a proper warning about the dangers of waiving the right to a lawyer. Tovar doesn't deny driving drunk. He simply wants to go back and cancel out that first guilty plea because the judge should have told him then that lawyers are useful beings.

Lithwick writes that the justices gave Tovar's lawyers a very cold reception in their questioning. No wonder; two of the justices, Rehnquist and Scalia, were the ones who wrote that famous language assaulting the criminal procedure right expansion movement as needless "prophylaxis built upon prophylaxis." Minnick v. Mississippi, 498 US 146, 166 (1990) (Scalia, J., dissenting). With the Scalia/Rehnquist assault against criminal procedure, it's doubtful that a court calling the Miranda progeny "a veritable fairyland castle of imagined constitutional restriction," id., would overturn Tovar's conviction after the fact because he wasn't told that "lawyers are useful beings" at his guilty plea arraignment.

I tend to sympathize with Lithwick's seeming support for the notion that criminals should not have the "right to be breastfed, burped, and cuddled by the criminal-justice system." Unfortunately, that's exactly what my system, the Uniform Code of Military Justice, does. In civilian court, you can choose not to have a lawyer present, as long as you're sane enough to make the decision. In a court-martial, you have no such right; you will have a lawyer shoved down your throat, like it or not. Providence inquiries in the military are also much more stringent. At a civilian guilty plea hearing, all you have to do is be advised about the elements of the crime, and admit each one with a simple yes or no. That's not good enough for us though. The military judge has about an hour long script they have to read straight from the military judge benchbook; any deviation and its grounds for appeal (much less "harmless error" allowed in our system). Then, the defendant must not only say yes to every element, but must tell a convincing story to the judge. And the judge's finding that the story is believable is reviewed de novo. Simply go to Army Court of Criminal Appeals Website to read about the scores of military criminals being "breastfed, burped, and cuddled."

So the next person who says that the civilian system is kinder to defendants better read this post. If still not convinced, read this from the Intel Dumper.