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Legal Myths and Reality by Judge Joan Shkane

Legal Myths and Reality by

Judge Joan Shkane

This is a continuing discussion of Legal Myths and Reality, because those informed are always the most successful.

Please note: Senator Sam Ervin, chair of the Senate Select Committee on Watergate in the preface to their report pointed out that the law is not self-executing.  It must be executed by humans.  And therefore, it must not be in the hands of those who are not faithful to it. 

MYTH:  The U.S. Constitution and Bill of Rights were the result of purely imaginative thinking by the nation’s founders.

REALITY:  Every clause in the U.S. Constitution and Bill of Rights was the result of the founders’ knowledge and fear of human nature and British and European leaders in history going back over 3000 years. Along with huge doses of compromise among the founders.  The founders were all white men who owned land.  There were no other races represented, no women, and no uneducated or under educated working class members.  The highly knowledgeable founders intended to address and correct policies and acts that various governments actually did against their citizens that robbed the citizens’ collective liberty.  In reading the Bill of Rights, which are the first ten Amendments to the Constitution, one clearly sees powers that the founders did NOT want to give to the new U.S. government.  In studying each one carefully, one sees exactly the acts that each European country had done against its’ citizens, that offended and scared the colonists and founders.  

For instance, and vastly simplified, Amendment 1 says that the government shall make no law regarding the establishment of religion.  In other words, there will be no government sponsored religion.  This grows directly out of England’s history of imprisonment, torture, death and taking of property owned by citizens. Usually, the confiscated property was given to the government, that is, the King or Queen.  The government would then, in turn, give the property to their favored supporters (all the founders knew that good and fair rule of law applies equally to all citizens, not to the favored few, and not depending on who you knew who was in power.)

This Amendment reflects the history of religious war as a result of state authorized and imposed religion. In pre-American Revolution times, British Catholic government would torture and burn the Protestants to death because they believed that the Catholic faith was the only true faith, and must be supported by government to the exclusion of all other religions.  Then the Protestants would seize power and promote their religion as the only true religion and would torture and burn the Catholics to death for the same reasons.  

This was followed by a religious coup (Oliver Cromwell) that held that only Puritanism (a form of Protestantism) was the true religion, which led to the beheading of the non-Puritan English king.  Although this discussion is vastly simplified, without dispute the Puritans then took over the government and permitted only their religious practices, resulting in further religious persecution.  The founders remembered the religious wars that led to terrible deaths of Scots Catholics by English Protestants, and many other acts of persecution in the name of one religion or another across the world. (And continuing all over the world today.  We can see it every day in worldwide news broadcasts.)  

Some of these persecutions led directly to English people fleeing to certain pre-American colonies (for example, to places now called Rhode Island, Connecticut, New Jersey and Pennsylvania.) The founders wanted to avoid such persecution in the new country that they were founding by declaring that the U.S. will NOT have a state supported religion, in other words, citizens are free to worship as they believe, or not at all if they chose.  Usually, the federal government will not interfere in religious practices, except in very narrow circumstances, such as child immunization from diseases which can affect the entire community.  

The reader is invited to review the Bill of Rights to see that every right guaranteed to us is there because some European or British government had taken over that right and not permitted the citizens to enjoy it.  The existence of each and every guarantee to us, and part of the basis of why 13 individual colonies agreed to join together into one country, and after one generally failed attempt (the Articles of Confederation), was the result of the founders’ vast experience, either learned or personally experienced. The founders were well educated people, either formally or self-taught, who read and debated extensively about political philosophy.  They did not enter into nation building without deep understanding of history and philosophy, and their agreement was not the result of imaginative thinking by white male property owners.  

 MYTH:  An assigned interpreter for an accused in a criminal case is a mere luxury.

REALITY:  An interpreter for English translation in the accused’s language of choice, and back again into English, is provided in order to comply with due process under the U.S. Constitution and the New York State Constitution.  

Recently an accused in New York State was convicted of speeding by a judge.  The defendant appealed to the Appellate Division, his right since every defendant is entitled to appeal a conviction on a particular issue only once.  Any further appeal is only with permission of the Court of Appeals.  The Appellate Division of the State Supreme Court reversed the decision and sent the case back for retrial, an expensive and cumbersome process.  The Court said that every accused is entitled to assist in his/her own defense, to be present at the trial and to understand the proceeding.  

In order to make these rights real, the accused must have the testimony interpreted in a language (s)he understands.  The judge’s obligation is to make these rights “unmistakably clear”, and the translator must be free of cost to an accused.  

In a second recent case, the trial judge ordered an interpreter for the accused, which was correct.  After conviction, the verdict was reversed by an appellate court for various reasons not related to the interpreter.  During the retrial the attorney for the accused objected to using the interpreter remotely since that procedure had not been followed in the first trial.  The attorney for the accused said that he could not effectively communicate with the accused when the interpreter is remote.  When the judge contacted the interpreter service he found that no interpreter was available in the language of the accused.  Nevertheless, the judge continued the trial without an interpreter.  The Appellate court said that the judge abused his discretion because he had no legal reason to proceed without an interpreter, and returned the case again for retrial.  

The bottom line is that each person accused of a crime must have an interpreter available, and preferably physically present, during each stage of his/her trial. Sometimes this is easier said than done, especially if the accused’s language choice is not widely used in the U.S. and in N.Y.  Also, one should understand that just because an accused can tell you the time of day and where (s)he is from in English, this does not mean that (s)he can understand legal terminology sufficient to assist in the defense. 

Attention to legal myths is not wrong.  It can be a starting point for developing an interest in the law.  However, if specific legal issues are important in your life, for instance, regarding custody of children or money payable for any reason, it is wise to consult a lawyer who can advise you on the truth of legal myths.  This discussion is not intended to render legal advice on specific cases or to express an opinion on any specific case.  

 

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