‘Letter from America’ - Kate Stone’s Pegasus scholarship in Washington
Kate Stone is currently undertaking a Pegasus scholarship in Washington (one of 12 scholarships granted annually). The Pegasus scholarship scheme makes it possible for gifted young lawyers to learn about the practical working of the common law system in countries other than their own, and to form enduring links with lawyers in those counties.
During her time in Washington Kate is keeping in touch and sharing her experience with her ‘Letters from America’. Read below to find out how Kate is getting on.
Letter from America
In true English style I’ll start by talking about the weather. After a glorious September the summer is drawing to a close in Washington DC; people are still walking to work in flip-flops but there’s a chill in the air which suggests that fall is on its way. Along with autumn (as it is properly known) comes a new term at the US Supreme Court. The Supreme Court is, I think, far more hotly debated amongst lawyers here than the House of Lords was at home (or than the new Supreme Court is likely to be). The Court also seems far more intimately connected with politics – there is little pretence that the judges are detached arbiters of justice without personal opinions or prejudices. At the moment people are particularly interested to see what impact the new Justice Sotomayor, appointed by the new(ish) President, will have. (On the subject of Obama, he would have nothing to worry about if his popularity were measured not by his performance in the opinion polls but by the amount of tat bearing his name and/or image which is hawked around the streets of DC. I speak from experience as someone who has invested in a number of questionable pieces of ‘memorabilia’.) During my first week my fellow scholar and I went to a symposium organised by Yale Law School about the Supreme Court docket, at which eminent academics and practitioners debated whether the court, which selects its own cases, hears too few cases overall or too many cases of a particular type. It was interesting from a human rights perspective to hear the Legal Director of the American Civil Liberties Union say that given the current composition of the Court he tries to avoid taking cases there at all costs. There is no European Court of Human Rights to petition if things go wrong.
I have spent a significant amount of time over the last couple of weeks across the state border in Virginia. This is a noticeably Southern state, bursting with history, whose citizens are unfailingly hospitable and courteous. It is also a state where the death penalty is still in use and its applicability in individual cases occupies a significant amount of court time in the Virginia Supreme Court and Fourth Circuit Court of Appeals. From a British perspective (or at least mine) the use of capital punishment seems shockingly anachronistic. I suppose that because Britain and the USA have so much in common it is disconcerting when an issue such as this (or the proliferation of guns in America) exposes the cultural differences between the two countries.
No capital matters were heard on the day we visited the Supreme Court of Virginia in Richmond but we did have the opportunity observe argument and discuss the cases afterwards with one of the Justices. Of particular interest was an appeal relating to Virginia’s Sexually Violent Predators Act, which permits civil commitment of certain offenders, convicted of sexually violent offences, who have completed their term of imprisonment. In order for an offender to be committed under the Act the State must prove at trial that because of a mental abnormality or personality disorder he finds it difficult to control his predatory behaviour, which makes him likely to engage in sexually violent acts. A probable cause hearing must take place to determine whether there are grounds to detain such an offender after sentence expiry pending final resolution of the commitment application. If sanctioned by the court, the offender’s detention may continue indefinitely subject to reviews, which take place initially on an annual basis and thereafter every two years. The comparison which sprang to mind when I heard about this was with our IPP sentences. However, these provisions are obviously significantly different from the IPP sentence and, interestingly, much more restricted in scope. They also require the State to bring a second set of (civil) proceedings (including trial by jury) before they are invoked.
Also in Richmond – this time at the 4th Circuit Court of Appeals – we heard argument in the appeal of Zacarias Moussaoui, the only person to face prosecution in a US court in connection with the 9/11 attacks. Moussaoui pleaded guilty but now argues that his plea should not have been accepted and that his rights under the Constitution (and specifically the 6th Amendment) have been violated because, inter alia, he had not been provided with exculpatory material at the time his plea was entered and he was restricted in his choice of counsel. As you might expect in a case of this significance the briefs (pleadings) run to several hundred pages, yet the time allowed for oral argument was extremely limited: one hour in open session (which we were able to attend) and a further period in closed session where classified material was discussed (which we were not). The fact that such time restrictions were imposed in a case like this impressed upon me what I had already realised from observing other appellate hearings – that oral argument is not considered nearly as important here as at home (despite what many British lawyers see as a gradual move towards written advocacy in our courts). It may be some time before the Court gives judgment in this important case which provides a real test for the due process rights enshrined in the US Constitution. Can the demands of national security in this type of case be reconciled with a defendant’s 6th Amendment rights without compromising either? Would it be possible for Moussaoui to receive a fair trial? Consideration of these issues is particularly pertinent at a time when, following the President’s decision to close Guantanamo Bay, the US government must consider how best to try its detainees.
In my final three weeks, which promise to be as rewarding as my first, I will have the opportunity to speak to the ACLU’s National Prison Project about litigation in the field of prisoners’ rights, see the public defender system in operation, find out more about civil legal aid provision in the USA, and spend some time on Capitol Hill. I will also get my chance to observe the Supreme Court in action.
