IN THE
SUPREME COURT OF MONTANA
7GP-DC14-022722CCA1
YEBATSA SUL,
Plaintiff
v.
MONTANA
Defendant
BRIEF OF AMICI CURIAE PRICEWATER, BOYD, & SIVARATNAM, LLC IN SUPPORT OF PETITIONER
EDWARD BOYD
Counsel of Record
PRICEWATER, BOYD, & SIVARATNAM, LLC
Counsel for Amici Curiae
QUESTION PRESENTED
STANDING
Pricewater, Boyd, & Sivaratnam is a public-interest organization with a subsidiary wing devoted to works that honor, preserve and restore principles of fairness in the criminal justice system. This case presents an important and recurring issue which is worthy of the Court’s consideration: whether the Fifth Amendment right to due process prohibits an individual from being convicted by default. Resolving this issue is central in restoring the vital role of a criminal trial in Montana, whereby the right to a trial remains sacrosanct. In our view, any rule that permits a conviction without a fair trial is detrimental to the principles of procedural fairness, and is violative of the Fifth Amendment’s due process clause.
ARGUMENT
1. Convicting by default under the Emergency Conviction Act of 2022 violates the Fifth and Sixth Amendment to the United States Constitution.
Currently, law enforcement retains overwhelming power to subject an individual’s liberty to restriction to up to 30 months. see Montana Criminal Code; Criminal Rules & Procedures Nos. 4A. Law enforcement are further permitted to exceed this restriction beyond 30 months should the individual face just one charge. Ibid. Under the Emergency Conviction Act of 2022, an individual can be convicted by default if there is an unreasonableness, infeasibility, or impossibility to wait for an attorney to arrive. The legislature provided, as an example within their framework, that a permissible circumstance would be that if an impending tsunami was within 20 minutes from occurring. This allows law enforcement to circumvent an individual's Sixth Amendment right to counsel in a criminal prosecution. An individual cannot be denied counsel and be forcefully subject to restrictions upon their liberty in the absence of any counsel or trial — it violates their Fifth and Sixth Amendment rights.
The right to counsel is guaranteed under the Sixth Amendment to the United States Constitution and has been held to be attached to the point of the defendant’s initial appearance before a judicial officer, where their liberty was thereby subject to restriction. Rothgery v. Gillespie Cty., 554 U.S. 191, 128 S. Ct. 2578 (2008). It is essential to understand the holding in Rothgery, that counsel is a right to the extent in which there are restrictions against a person’s liberty which ultimately becomes the object of governmental prosecution. Moreover, prior tothe commencement of any custodial interrogation, if an individual indicates in any manner prior to their questioning that they wish to remain silent, the interrogation must cease immediately, and if their lawyer has been requested, any statement taken thereafter cannot be other than the product of compulsion, subtle or otherwise. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).
The Emergency Conviction Act of 2022 makes permissible the 1) denial of counsel to a defendant prior to the commencement of their trial; and 2) by convicting default, the deprivation of counsel when a defendant pleads not guilty to a single charge. In turn, it violates procedural fairness by permitting an individual to be denied counsel and subject to restrictions upon their liberty in unreasonable, unfeasible or impossible circumstances. Yet, the subject of unreasonableness, infeasibility, or impossibility remains undefined by this Court.
By denying a defendant the right to an attorney in any circumstance, has been held by the Supreme Court to be unconstitutional, and most certainly when there is a risk of “the actual deprivation of a person’s liberty”. see Argersinger v. Hamlin, 407 U.S. 25, 40 (1972). see also Johnson v. Indiana, 948 N.E.2d 331, 336 (Ind. 2011); Gideon v. Wainwright, 372 U.S. 335 (1963); Argersinger v. Hamlin, 407 U.S. 25, 40 (1972). Any such deprivation to a defendants right to counsel, or the denial of their choice of attorney without good cause, must result in the reversal of their conviction. United States v. Gonzalez-Lopez, 548 U.S. 140 (2006). In the application of the present law to facts of Yebatsu, this Court must conclude that the operation of the Emergency Conviction Act of 2022 is violative of a defendant’s Fifth and Sixth Amendment Rights to the United States Constitution.
2. The deprivation of counsel under the Emergency Conviction Act of 2022 is subject to strict scrutiny.
Through the enforcement of the statute, as law enforcement officers take on the powers of both arbiter and enforcer — that is, the police officer becomes both judge and executioner — it jeopardizes a defendant’s fundamental right to liberty as the judicial process is circumvented, and an individual is thereby subject to the determination of a law enforcement officer. This is violative of an individual's Fifth and Sixth Amendment rights, thereby subjecting the statute to strict scrutiny.
The strict scrutiny framework was introduced under United States v. Carolene Prods. Co., 304 U.S. 144, 58 S. Ct. 778 (1938), and further refined under Korematsu v. United States, 323 U.S. 214, 65 S. Ct. 193 (1944). Korematsu held that in any instance in which a civil right has been curtailed, although not necessarily unconstitutional, are immediately suspect and must be subject to the most rigid scrutiny by the Courts — that scrutiny refers to strict scrutiny.
The statute’s purpose was to “ensure timely conviction by default of defendants by one charge in the face of a state emergency such as a ‘tsunami’, a ‘snowstorm’, or other emergencies, so that defendants of Grizzly Peaks may enjoy the same and importantly that the judicial process is not impeded.” see Long Title of Emergency Convictions Act of 2022. The long title of the Act provides that it is an act which aims to ensure timely conviction by default, which we have argued at lengths, is violative of the Sixth Amendment right to trial and counsel where the object of governmental prosecution remains the restriction upon the liberty of the defendant. In other words, the object of the Act is to make timely the deprivation of individual liberty in the presence of any “state emergency such as a ‘tsunami’, a ‘snowstorm’, or other emergencies. Ibid. A governmental interest cannot be to expedite the deprivation of its citizens’ rights, in any respect. Moreover, the Act is too broadly tailored to achieve such a goal, as it provides in its long title, “or other emergencies”, and in §1001.4 “and other basic questions”. What constitutes an “other emergency” or “other basic questions”? Furthermore, the statute cannot be seen to expedite or remove any impediency from the judicial process, as the judicial process is entirely divorced from the convict by default framework.
Under our argument, the government cannot achieve its compelling governmental interest insofar as 1) that interest remains entirely divorced from the statute’s operation, and 2) remains too broad in its operation.
CONCLUSION
Conviction by default under the Emergency Convictions Act of 2022 is violative a defendant’s Fifth Amendment right to an attorney and their Sixth Amendment right to a fair trial in the presence of an unbiased and impartial judge. As the Act violates a fundamental right, as protected under the Due Process clause of the Fifth Amendment, incorporated upon the states under the Fourteenth Amendment, it is thereby subject to strict scrutiny by this Court — a scrutiny in which the Act cannot survive. For these reasons, this Court must hold that the Emergency Convictions Act of 2022 is unconstitutional, and invalidate the Act.
Respectfully submitted,
Edward Boyd
Counsel of Record
PRICEWATER, BOYD, & SIVARATNAM, LLC