Student submissions: a Conlaw moment
rosentha at chapman.edu
Sun Mar 18 14:55:45 PDT 2007
Wisconsin v. Mitchell, as others have pointed out, establishes that a defendant's motive for unprotected conduct, even if ideological, is not protected by the First Amendment. In addition, although the Supreme Court has never squarely decided the question, the cases to date strongly suggest that the First Amendment erects no bar to consideration of evidence of the defendant's thoughts and beliefs, even if the evidence itself reflects conduct protected by the First Amendment, to the extent that it is relevant to a criminal proceeding. A good discussion of the law in this area can be found in Dawson v. Delaware, 503 U.S. 159 (1992). Thus, it seems to me that as long as an indiviual's writings, art, etc. is relevant to a criminal proceeding, the First Amendment offers the defendant no protection from consideration of that material, even though the state could not directly proscribe the creation or possession of such material.
Chapman University School of Law
From: conlawprof-bounces at lists.ucla.edu on behalf of Robert Sheridan
Sent: Sun 3/18/2007 11:15 AM
Subject: Student submissions: a Conlaw moment
During a preliminary hearing to determine whether probable cause existed to try a defendant for robbery and being a gang member, a police Gang Task Force detective testified as an expert, as is permitted, that in his opinion the defendant was an active member of a "violent street gang," as defined by California's Street Terrorism Enforcement and Prevention Act, Penal Code Sec. 186.20, et. seq.
Scales v. U.S. 367 US 203 (1961), one of the Communist Party membership cases of the McCarthy Era, the Cold War, the Red Scares, and the witch-hunts (see American Prometheus, by Bird & Sherwin (Vintage, 2005), a biography of J. Robert Oppenheimer, "the father of the atomic bomb,") requires that membership in an outlawed group be "active" and with specific intent to further its illegal ends, in order to incur criminal liability. This applies today to street gangs.
Among the factors the detective cited as gang active-membership criteria were such things as:
-wearing gang attire, embellishments, insignia, tattoos, colors, numbers, etc.
-flashing hand signs
-associating with known gang members
As to the particular defendant I was appointed to represent, there was a different factor. Several years earlier, while the defendant was a high school student, the detective was summoned to the school in response to a fight near the school among boys who were said to be gang members. My client was thought to have been involved in that incident. While the detective walked through a school hallway to speak to those detained in connection with the fight, he saw some art-posters, made by students, on the wall.
Recognizing the poster above the name of my client to contain gang-related symbols, the detective photographed the poster and name. It shows a yellow field on a red background on which has been pasted, or printed, scatter fashion, in collage style, the following legends, among others: "I am this man; I am reptile; I am wild; I am coral; I am NORTE; I am North; I am student; I am ready; I am American..." The large numerals 22 and 14 are prominently superimposed.
Red is the color worn by Nortenos, blue by Surenos. People have been murdered for wearing the wrong color in the wrong district. 14 is the 14th letter of the alphabet, "n," for Norte or Norteno. 22 stands for 22nd street, which belongs to Nortenos. 22B stands for the 22nd and Bryant Street subgroup of Nortenos. They appear in tattoos, on clothing, tagged on walls and buses, etc.
In Latin-American culture, gangs, according to the detective-historian, have existed for perhaps hundreds of years. They have devolved into a North South rivalry, with the northerners, or Nortenos, with a tilde over the 2d 'n,' being the more acclimated while the Surenos, likewise with the tilde, are supposedly the relative newcomers. They are deadly rivals, especially in prison, and have staked out turf on the streets of LA, SF, and other cities.
After the prelim, the defendant's c/l wife, Estrella, the mother of his two children, a bright, bilingual young woman of about 22 years with a high school education who attends vocational training school, stated resentfully that she didn't think it was fair for the police to have used this poster as evidence of gang membership against Alex.
As soon as she said it, I realized that she was making a Conlaw objection, which I was able to flesh out in mind later.
"Why?" I asked.
"Because he was in school and that was a school project," she replied.
What struck me first was that she is the one who thought of the objection, not me, and I purport to teach the class. Obviously there's a sad disconnect. This, I thought, is how Conlaw gets made. Someone, a civilian, an accused, or his friend or relative, gets upset at the fairness of a heretofore common usage. The lawyers put it in legal form by raising objections and supporting briefs, citing text and cases etc. This was a Conlaw Moment for me.
Secondly, as I thought about the matter, I wondered on what legal ground could I move to exclude this evidence at trial. What case, I wondered, permitted the First Amendment to be used to exclude/suppress evidence as the Fourth and Fifth Amendments are used in cases of illegal searches and confessions obtained in violation of Miranda or voluntariness rules.
Although the matter is now academic, as the case dealt out before trial on non-gang-related charges, I would like to ask whether there are cases in which evidence in a criminal prosecution has been excluded based on academic freedom, artistic license, general creativity or expression, or related First Amendment protected ideas?
Somehow I have the feeling that it either doesn't exist, or looms large before my eyes and I'm not seeing it.
Perhaps the answer is that if the other amendments in the Bill of Rights can be used to suppress evidence, why not the First? It's just that I'm having difficulty in pulling up the leading case, as obvious as I suspect it may be.
Haven't legally seized private, personal diaries been introduced into evidence where they contain statements that might be considered by a jury to be admissions? Even over a privacy objection? Here the student's poster was published on a school wall, which likely kills a privacy objection. Does privacy reside in the First Amendment, or is it a moveable feast, which I think Griswold suggests, in resting the penumbras and emanations on no less than four amendments, 3, 4, 5, & 9, as I recall, but not #1.
Would it make a difference whether the art project had been required by the school? In other words, was submitted involuntarily or in submission to legal authority?
Should student submissions receive some FA protection against use in criminal proceedings? In all cases? Some?
Are the statements actual admissions, or by contrast, are they simply artistic expressions related to the young man's worldly concerns that don't amount to admissions per artistic license? As a matter of law? Or fact for the hanging jury?
Suppose that gangs loom large in Alex's mental, rational, and emotional life and that he is mindful of their influence over his choice of friends, manner of attire, and how he conducts himself; and that he expresses his inner mind in a poster submitted to his school, voluntarily or not, the way someone else might contribute a poem or essay expressing deep feelings. For him, as a young male Hispanic, these are life and death matters. He should be thinking about them. Why not express them artistically? Isn't that what artists do?
I've seen news reports of students being hauled before authorities for essays thought to be alarming or which seem to threaten to commit another Columbine-like shooting massacre.
I'd appreciate any comments on or off list and offer thanks in advance.
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