Ernesto Miranda arrest photo, 1963.

Currently, there is a big debate about the Miranda warning and Boston terror suspect Dzhokhar Tsarnaev. Federal investigators said after Tsarnaev’s detention that he wouldn’t be read his Miranda rights under something called the “public safety exemption.”

Under the exemption, police can interrogate a suspect without advising him or her of Miranda rights if they believe the suspect could have information about an imminent threat to public safety.

That exemption allowed investigators to interrogate Tsarnaev while in custody, without informing Tsarnaev of his rights to a lawyer and his right to stay silent.

According to an AP report, after 16 hours of questioning, a representative of the United States Attorney’s office read Tsarnaev his Miranda warning, and the suspect stopped talking to investigators.

Related Story: Constitution Check: Are there limits on questioning a bombing suspect?

The “Miranda” in the Miranda warning was Ernesto Miranda. He was arrested in March 1963 in Phoenix and confessed while in police custody to kidnapping and rape charges. His lawyers sought to overturn his conviction after they learned during a cross-examination that Miranda wasn’t told he had the right to a lawyer and had the right to remain silent. (Miranda had signed a confession that acknowledged that he understood his legal rights.)

The Supreme Court overturned Miranda’s conviction in 1966 in its ruling for Miranda v. Arizona, which established guidelines for how detained suspects are informed of their constitutional rights.

The Miranda warning actually includes elements of the Fifth Amendment (protection against self-incrimination), the Sixth Amendment (a right to counsel) and the 14th Amendment (application of the ruling to all 50 states).

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First, there isn’t one official Miranda warning that is read to a suspect by a police officer. Each state determines how their law enforcement officers issue the warning. The Supreme Court requires that person is told about their right to silence, their right to a lawyer (including a public defender), their ability to waive their Miranda rights, and that what they tell investigators under questioning, after their detention, can be used in court.

The Miranda warning is only used by law enforcement when a person is in police custody (and usually under arrest) and about to be questioned. Anything you say to an investigator or police officer before you’re taken into custody—and read your Miranda rights—can be used in a court of law, which includes interviews where a person is free to leave the premises and conversations at the scene of an alleged crime.

In fact, Ernesto Miranda came into a Phoenix police station voluntarily to answer questions in 1963 and also took place in a police lineup.

The police can ask you questions about identification, including your name and address, without a Miranda warning. And they can use any spontaneous expressions made by you as evidence—for example, if you say something without the prompting of police before you’re taken into custody.

Of course, you’re still protected by your Miranda rights—after you’re detained—even if you waive them after an arrest. At any time, during an interrogation, you can stop answering questions and ask for a lawyer.

In the case of Dzhokhar Tsarnaev, investigators probably felt they had enough evidence to charge him and win a case in court without any of the information Tsarnaev volunteered before he was read his rights.

As for Ernesto Miranda, though his original conviction was set aside by the Supreme Court ruling, he was retried and convicted, and was in jail until 1972–then in and out of jail several more times until 1976. After being released in 1976, he was fatally stabbed during a bar fight. His suspected killer was read his Miranda rights and didn’t answer questions from police. There was never a conviction in Miranda’s death.

Scott Bomboy is the editor-in-chief of the National Constitution Center.

It’s not news that The Daily Show is criticizing Fox News, but this week one segment took a distinctly constitutional turn.

In the segment, titled “Weak Constitution,” Stewart criticizes Fox News analysts for some of their reactions to the handling of Boston bombing suspect Dzhokhar Tsarnaev.

Many were upset about the idea of Tsarnaev being read his Miranda rights (a Fifth Amendment issue Constitution Daily explored here and here), and some, including Sean Hannity and Ann Coulter, wanted him to be treated as an enemy combatant instead of in a civil court (which would concern the Sixth Amendment, which guarantees the right to a fair, speedy trial). Fox contributors Eric Bolling and Brian Kilmeade also suggested wiretapping Muslim mosques.

Stewart poked fun at Fox News for “jettison[ing] constitutional amendments like Han Solo dumping his cargo at the first sign of an Imperial cruiser.” Except, of course, when it comes to the Second Amendment, of which Hannity said, “No ambiguity here.”

What do you think of Stewart’s criticism? Whatever your view, the segment offers an entertaining reflection on how we turn to the Constitution for answers to today’s toughest questions–but we often disagree on which side it supports.

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The statement at issue:

“On a good day, we’re stretched thin. Sequestration takes us well beyond the breaking point. You simply can’t sequester the Sixth Amendment.”

 –David E. Patton, a federal public defender, in a court hearing as he urged the judge to delay the major terrorism trial of Sulaiman Abu Ghaith, the son-in-law of the late terrorist leader Osaba bin Laden.  Patton was quoted in The New York Times on April 9.

We checked the Constitution, and…

Nothing in the Constitution specifically commands Congress to provide the money when a federal court has created or enforced rights that depend upon available funding. A denial of such funds, though, would raise questions about the constitutional independence of the judiciary. Perhaps to avoid that problem, it has long been understood that the money would be forthcoming. This year, though, there may be some doubt about that.

Because of what is technically called the “sequester,” the across-the-board cut in federal spending that took effect on March 1, many federal agencies and offices wound up short-changed, with less money than they had previously been authorized to spend. Congress did not withhold funds for any specific program, but the effect was the same as if it had, for every agency.

The federal public defender’s office in New York City is one of those agencies, and its chief, David Patton, took his complaint directly to U.S. District Judge Lewis A. Kaplan on Monday. The judge commented: “It’s extremely troublesome to contemplate the possibility of a case of this nature being delayed because of sequestration.”

Two constitutional rights are at stake in the federal government’s case against Sulaiman Abu Ghaith. Both are guaranteed by the Sixth Amendment: the right to a lawyer and the right to a speedy trial. The right to a lawyer has been interpreted by the Supreme Court to mean the right to have a free lawyer in a criminal case, if one cannot afford it personally. In a historic coincidence, the issue arose in Abu Ghaith’s case almost exactly 50 years after the Supreme Court guaranteed that right to impoverished individuals, in the case of Gideon v. Wainwright.

Although the suspect in this case is a foreign national, he does get the benefit of these rights because he is being tried in a regular federal court. There are some in Congress, of course, who oppose civilian trials in terrorism cases precisely because they do not want those suspects to have the full panoply of constitutional protections. But Congress has no power to shut down a federal prosecution once it has started; that would clearly breach the wall of constitutional separation.

However, because of the way sequester works, the lack of money to finance Abu Ghaith’s defense does not appear to be unconstitutional. Congress has not told Judge Kaplan to deny access to a defense lawyer in that or any other case, and, indeed, Congress has not targeted the federal defender’s office in New York specifically for a cut that no other agency has to withstand.

There is no doubt that sequester was within the power of Congress to enact. It is true that neither Congress nor President Obama thought the sequester would ever actually happen; they regarded it as a prod for everyone involved to get a budget deal done. But a failure on the budget triggered the automatic implementation of the sweeping cuts.

That may be a dumb way to run a government, as many independent analysts have suggested, but no one has yet argued that it was unconstitutional. The Constitution, in general, does not protect governmental actors against their own missteps–unless those cross the line into forbidden action.

What happened in Judge Kaplan’s court on Monday is happening in other federal courts, as well. The New York Times story noted that five of six federal judges in Manhattan have received requests from public defenders “to be relieved from cases in the wake of the automatic cuts” due to the need to put lawyers on furlough.

Even if those requests are granted, the individuals facing prosecution before the Manhattan judges cannot be required to go to trial without lawyers. The trial judge in each case would then be obliged to assign the case to a non-government attorney–provided either that such a lawyer would be willing to work for no pay, or the judge could find money from somewhere to pay the fees. That alternative may wind up costing the government more than it would if public defenders, who work only for a salary, were available.

Federal courts work under specific budgets; judges do not have “discretionary funds” they can dip into to cover non-budgeted or unexpected costs. So the dilemma of how to deal with the right to a lawyer and the right to a speedy trial deepens for the judges and the lawyers alike.

Postponement is, of course, an option. But that may not be an attractive option at all. When the government is responsible for delays in a case, that counts against it in the calculus of whether an individual has been given a “speedy” trial. There is no hard-and-fast time limit on when a trial must actually begin, since court rulings have spoken in terms only of a “reasonable time.” The judge usually has a good deal of discretion in how to define that, case by case.

But the right to a speedy trial is not an empty right. At some point, if the judge is persuaded that delay has gone on long enough, the government at that point must start the trial, or else run the risk of having the charges dismissed altogether. In a high-profile case, such as the terrorism case in Judge Kaplan’s court, that is an outcome that federal prosecutors definitely want to avert.

Many stories are coming to light about the impact of the sequester. Some of those are more heartbreaking than the plight of an individual accused of plotting to kill Americans. But more is at stake in the integrity of the criminal justice system than the fate of one individual, including whether the government can live up to promises made by the Constitution.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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This followed a Monday ruling by a federal judge in Texas that the USADA had the authority to continue with its case against the seven-time Tour de France winner and Olympic medalist.

In his two-page statement, Armstrong called the USADA’s investigation an “unconstitutional witch hunt” and said he would “no longer address this issue, regardless of the circumstances.” Armstrong cited the toll the investigation had taken on his family and his LiveSTRONG foundation as the reason for his decision.

Lance Armstrong has long been one of the most polarizing athletes in international competition following his battle with cancer, an unlikely 1999 Tour de France victory and the six other championships that followed.

The Texas native was regarded as one of the premier cyclists in the world prior to his cancer diagnosis in 1996. Armstrong was a world champion. However,  he had struggled in cycling’s premier event, the Tour de France, winning two stages but also failing to complete the grueling three week event.

In October 1996, Armstrong was diagnosed with testicular cancer that had spread to his lungs and brain and given less than a 50 percent chance of making a full recovery.

After an aggressive treatment battle, Armstrong was declared cancer free and returned to competitive cycling in 1998. He captured his first Tour de France victory in 1999 and became a worldwide hero and celebrity.

He would follow that victory with six more in the next six years to become arguably the most dominant cyclist ever.

In 1997 he founded the LiveSTRONG foundation which has raised almost $500 million for cancer research by launching a fashion craze with its yellow LiveSTRONG bracelets.

Armstrong announced his retirement following the 2005 Tour de France only to announce that he would ride the event again in 2009 and eventually 2010 before officially retiring in 2011.

Armstrong’s courage and determination have made him a hero to millions throughout the world but also an enemy to many who believe that his story is just too good to be true including the USADA.

Created in 2000, the USADA is a non-profit, non-governmental organization recognized by Congress, the World Anti-Doping Agency (WADA) and various other international sporting federations as the official national anti-doping agency of the United States.

The USADA has the authority to execute a national anti-doping program that includes testing athletes and adjudicating offenses.

Since Armstrong’s miraculous comeback and rise to cycling dominance, allegations of blood doping and steroid use have plagued him.

Armstrong routinely points to the hundreds of tests he has endured throughout his 20-year career without a failed result as proof of his innocence.

However, since his comeback in 2009, the allegations have become stronger. The U.S .Department of Justice conducted a two-year investigation into claims that Armstrong used steroids and EPO (erythropoietin), which increases red-blood cells in the body.

Among the witnesses that appeared before the Los Angeles grand-jury were former Armstrong team mates Floyd Landis and Tyler Hamilton. Landis was stripped of his 2006 Tour de France victory after testing positive for increased levels of testosterone and Hamilton lost his 2004 Gold Medal after test revealed he had received a blood transfusion.

Both men have claimed that Armstrong used performance enhancing drugs and encouraged others to do the same. In February of this year, federal prosecutors announced that they had closed their investigation without filing charges against Armstrong, citing insufficient evidence in the case.

In June, the USADA filed formal charges against Armstrong that he possessed, used, and trafficked banned substances including blood transfusions, EPO, and steroids. The USADA claimed that it had evidence including the testimony of at least 10 former teammates, emails, and blood samples from 2009-2010 that were consistent with blood doping.

Armstrong responded by filing suit against the USADA in Texas, challenging the USADA jurisdiction in the case and claiming that the USADA arbitration process violated his Sixth Amendment due process rights. Armstrong was backed in his challenge by the U.S. and International cycling unions.

On Monday, Judge Sam Sparks dismissed Armstrong’s suit, claiming that the due process charges we without merit and that the case was best settled “through the well-established system of international arbitration.”

Sparks also questioned the motives of the USADA in investigating the retired former champion and whether or not the investigation helped the cause of anti-doping in sports. The ruling allowed the USADA to proceed with its charges and left Armstrong with a Friday deadline to declare whether or not he intended to enter the USADA’s arbitration process.

According to USADA procedures,  a charged athlete may either accept the charges and proposed sanctions or take the case to arbitration. By declining to take his case to arbitration, Armstrong accepted the charges and the proposed sanctions which include the forfeiture of all titles and earnings from 1998-2011 and a lifetime ban from international competitions.

Despite his claims of innocence, both USADA and WADA officials have used Armstrong’s decision as an indication of merits of the charges.

The International Cycling Union, which has backed Armstrong and challenged USADA jurisdiction in this case, has said that it  will wait for an explanation of the decision by USADA, which is required by the World Anti-Doping Convention in cases where no hearing is held.

The UCI has the option of taking its case to the Court of Arbitration for Sport if it believes that the USADA’s actions are unwarranted. The Switzerland-based CAS is the final authority in disputes involving international athletics.

Armstrong decision to withdraw from the arbitration process leaves him with few options. He can appeal the federal courts decision or pursue an appeal to the CAS. However, either option is unlikely because he has expressed a desire to move on and decided to forgo the USADA arbitration process before appealing to a high court.

Whatever the outcome of the appeals, it is unlikely that the story will end with Lance Armstrong’s decision not to challenge the USADA’s charges as the debate about his performance and legacy will continue.

Mike Simzak is the Youth Programs Coordinator at the National Constitution Center and the official sports writer for Constitution Daily.

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Clarence Gideon via Wikimedia Commons

In the early morning hours of June 3, 1961, in Panama City, Florida, Clarence Earl Gideon was seen coming out of the Bay Harbor Pool Room with a bottle of wine, some cigarettes, and money stuffed in his pocket. He ran across the street to a phone booth, and a couple of minutes later a cab arrived and picked Gideon up.

A subsequent police investigation disclosed the pool room’s cigarette machine had been opened and money was missing. Hours later the police found and arrested Gideon. He was prosecuted and convicted of the breaking and entering as well as petty larceny. He was sentenced to five years in the state penitentiary.

As he sat in jail, Gideon replayed his trial. At the start, he asked the court to assign him an attorney because he could not afford one. The trial judge denied his request. Gideon was troubled by the fact that the state of Florida had had an attorney but he had not. He thought it was unfair – un-American. And so he began his legal research.

He read that the Sixth Amendment of the Constitution provided that “in all criminal prosecutions, the accused shall enjoy the right to … have the assistance of counsel for his defense.”

Of course, it was the state of Florida, not the federal government, that had sent him to jail. But he also discovered that the Fourteenth Amendment stated, “…nor shall any state deprive any person of life, liberty or property, without due process of law; nor deny any person within its jurisdiction the equal protection of the laws.”

Gideon’s research showed that the Supreme Court had ruled in 1932 in Powell v. Alabama that criminal defendants had the right to the assistance of counsel – if it was a capital case. He understood that his was not a capital case, but it was darn important to him. He decided to petition the Florida Supreme Court for a writ of habeas corpus, an order to release him. After the petition was denied, he sent a petition the U.S. Supreme Court. The Supreme Court granted his petition and assigned Abe Fortas (later to become an associate justice on the court) to represent him.

On March 18, 1963, nearly 44 years ago, the court ruled unanimously in Gideon’s favor. Justice Hugo L. Black wrote that the assistance of counsel was a “fundamental right,” essential to a fair trial. In a concurring opinion, Justice Tom C. Clark noted that the 14th Amendment did not restrict its rights to capital cases. The Supreme Court remanded, or returned, Gideon’s case to Florida, where he was retried. At retrial he was represented by W. Fred Turner, who hammered away at the eyewitness’s testimony. After an hour’s deliberation, the jury acquitted Gideon.

What can we learn from Gideon’s experience? First, don’t give up; be persistent. Second, under our Constitution and system of justice, one person can make a difference. So if someone ever tells you at election time that your vote won’t make a difference, remember Clarence Earl Gideon. You – one person –  can make a difference for all of us.

Donald Applestein is a retired attorney and experience guide in the National Constitution Center’s Public Programs Department.

The Sixth Amendment of the U.S. Constitution provides for the right to a fair trial. Jurors are supposed to decide a case based on what they hear in the courtroom, not what they read in the news media. They’re not allowed to talk about the case with others so they don’t base their decision on the influence of a friend or relative, rather than their own judgment. They can’t visit the scene of the crime on their own or conduct their own investigations.

Before Facebook, Twitter and Google, it was pretty easy to keep jurors in line. If a case garnered attention in the local press, a judge could order a change of venue so that the case was heard in another town. If the court was worried about outside influences, the jurors could be sequestered. But now with a quick search on a smartphone—or a peek at a defendant’s Facebook page—jurors are routinely breaching the right to a fair trial, and courts, lawyers, and legislatures are trying to figure out what to do about it.

The troubles begin even before the trial. In 2009, in a single court, 600 potential jurors were dismissed when they mentioned they’d done research about the case and discussed it with others in the jury pool. When Reuters monitored Twitter, it found that tweets from jurors or prospective jurors pop up at the rate of one every three minutes. Ignoring their legal duty, some jurors make up their mind before all the evidence is presented. “Looking forward to a not guilty verdict regardless of evidence,” one person tweeted. Yet another man hadn’t even been selected as a juror yet when he boldly tweeted, “Guilty! He’s guilty! I can tell!”

Once the case is underway, jurors breach the fair trial right by conducting their own research. Some have looked up a Google view of the scene of the crime, or the previous driving record of someone charged with reckless driving, or whether the defendant was making gang signs in his Facebook photo. But all of these actions uncover information from outside of the courtroom, where there is no chance for the defendant’s lawyer to correct inaccuracies or cross examine the individual who provided the information.

When a juror used his iPhone to look up the word “prudence,” a key legal concept in a manslaughter trial, he discussed what he found with the other jurors. After the defendant was convicted, the slip came to light. An appellate court granted the defendant a new trial, saying “Although here we confront new frontiers in technology, that being the instant access to a dictionary by a smartphone, the conduct complained of by the appellant is not at all novel or unusual. It has been a long-standing rule of law that jurors should not consider external information outside the presence of the defendant, the state, and the trial court.”

Some people are so dependent on social networks that they can’t make a decision about anything—whether to buy a certain car or break up with a boyfriend—without doing Internet searches or running a poll of their friends. When faced with the evidence in a sexual assault and abduction case, a juror posted the facts on her Facebook page and said, “I don’t know which way to go, so I’m holding a poll.”

Jurors’ misuse of Facebook, Twitter, and Google has led to dozens of mistrials and overturned verdicts, costing the government millions of dollars to retry the same defendants. But so far the punishments of jurors have been minor. When a Georgia juror Googled information in a rape case, the judge fined her $500. When a Michigan juror posted on Facebook, “Gonna be fun to tell the defendant they’re GUILTY,” the judge replaced her with an alternate and made her pay $250 and write a five-page essay about the constitutional right to a fair trial.

Courts are responding with new jury instructions telling jurors precisely what they should and shouldn’t do—and why. The American College of Trial Lawyers has also created a form that jurors should sign acknowledging their responsibility not to consult social networks. Its materials even include a model message that jurors can send friends and relatives telling them not to forward any information about the case or ask for any comments until the case is over.

California, though, is getting tougher. Beginning this year, a new state law provides for a penalty of up to six months in jail for a juror who disobeys a judge’s ban on the use of social networks, tweets, or web searches to find out about—or discuss—a case.

For generations, jurors have probably discussed cases with friends and family. Some may even have gone to a library or consulted an expert to help them make their decisions. But with the ease of access to information, the Internet has made jurors’ breaches easier and more likely. The dramatic cases that have arisen so far provide an opportunity to refresh our collective recollection about why the right to a fair trial is so important. For the right to a fair trial to remain a reality, jurors need to understand that cases need to be decided based on what’s occurring in the courtroom, not what’s occurring on Facebook or searchable on Google.

Lori Andrews is Distinguished Professor of Law at Kent College of Law; Director of the Institute for Science, Law and Technology; and Associate Vice President at Illinois Institute of Technology.

President Obama signs the "Dodd-Frank" Act, July 21, 2010 (Photo by Lawrence Jackson)

At the federal level, recent legislative efforts began with the Sarbanes-Oxley Act of 2002, which required public companies to develop means of reporting misconduct while simultaneously banning retaliation against those who report misconduct. Similar thinking was evident in The American Recovery Reinvestment Act of 2009 and the Troubled Asset Relief Program: reporting channels were made available to whistleblowers and retaliation was prohibited. The trend continued, and indeed reached new heights, with the 2010 enactment of the Dodd-Frank Wall Street Reform and Consumer Protection Act. “Dodd-Frank” created a bounty system for whistleblowers to bypass internal compliance programs and report concerns of misconduct directly to the Securities and Exchange Commission (a move that faced substantial opposition from the community of corporate general counsels and compliance officers who would prefer, of course, to keep such matters in-house). Dodd-Frank even provided for confidential reporting, provided certain conditions were met. Ultimately, I believe that these efforts, despite their good intentions, will continue to fall short of the goal of protecting those who do come forward to report misconduct because they fail to acknowledge the fundamental conflict between reporting and privacy as well as the inability of the law to protect those who are brave enough to come forward.

The first problem is reconciling privacy interests. In Europe, which has a dark history of governments encouraging people to “report” on each other, the European Union Data Protection Directive was written to safeguard those accused of misconduct from the kinds of reckless or vindictive charges that might be likely to result, for instance, from anonymous reporting. The belief in Europe is that people targeted in such reports should know about them and have an opportunity to defend themselves (as in our Sixth Amendment right to face one’s accuser). While the Supreme Court has discovered a right to privacy in the Constitution (in Griswold v. Connecticut and then later in Roe v. Wade), it has been limited to private behavior, not professional conduct. Yet, here there is potential for abuse of privacy in offering substantial financial rewards to those who rat out a co-worker.

What we need are better mechanisms to help employees address misconduct issues.

Another, and in some ways more significant, problem is that efforts to compel and encourage whistleblowers fail to account for what really happens to people who become whistleblowers. A closer examination reveals why even financial incentives to encourage reporting are not sufficient for many people and why, despite what the law says, whistleblowers fear that they cannot be protected from retaliation.

To be successful, legislative efforts will have to address the factors that cause people to resist reporting misconduct. First, most people who discover information about possible misconduct are able to do so because they work in a collective enterprise that is filled with personal relationships that they risk destroying by coming forward. In other words, no one really wants to rat out a colleague.

Second, the bounties we have created are undermined by timing issues. The essential point here is that a bounty is awarded only at the end of a process that usually takes several years. On the other hand, a person’s decision whether to report misconduct is made at a point when there is no assurance that any bounty will ever be forthcoming.

Third, the timing problem is made all the more problematic by substantive and procedural requirements. For example, how does a whistleblower under Dodd-Frank know whether his or her information is original or will ultimately lead to the government’s recovery of $1 million or more (both prerequisites to receiving a bounty)? Our collective concern for due process and our belief in the adversarial system of law has resulted in other procedural barriers that are just as formidable. Reporting misconduct in a way to be eligible for a bounty is a complicated process. It is also a complicated process to succeed on a claim for retaliation for reporting. Moreover, a retaliation lawsuit often destroys relationships and involves the loss of a job and difficulty in finding another, and  it can take years to resolve.

Fourth, the blunt truth is that current whistleblower laws are ill-equipped to protect whistleblowers from many of the types of retaliation they are likely to experience. Despite the prohibition against retaliation for good faith reports, laws and policies can do little to punish the types of subtle treatment by supervisors that is under the radar or the retaliation inflicted by non-supervisory peers. It is difficult if not impossible to hold an employer accountable for these subtle types of retaliation, but they can have every bit as much of a chilling impact as more overt forms of retaliation.

All of these factors combine to teach most people that reporting misconduct is not worth the cost, even with potential bounties such as those offered by Dodd-Frank or the False Claims Act (which was enacted during the Civil War). What we need are better mechanisms to help employees address misconduct issues. Compliance officers, HR, and line supervisors can provide guidance to employees, but each of these functions is a formal management reporting channel. That means that they must investigate and act on any possible misconduct that comes to their attention. Consequently, an employee cannot discuss issues with them without also risking that they will commence an investigation.

Rather, what workers need is first, a knowledgeable and confidential resource with whom they may discuss their concerns and obtain information or guidance about the company’s policies, procedures, and reporting options before having to make the commitment to make a report; and, second, a way to surface issues without having to be identified as the whistleblower. Only by separating management responsibilities from the role of providing advice and guidance to workers can the case for confidential communications be made.

As many corporations are now discovering, an organizational ombudsman is just such a resource. An ombudsman is a person or office—working under a charter that assures independence, neutrality, informality, and confidentiality—with whom an employee may speak confidentially and off-the-record about work-related concerns or questions. The organizational ombudsman office has no management or policy responsibilities but is staffed with employees who know the company and can provide a potential whistleblower with options for reporting so that they can decide whether to report and, if so, how. By presenting and discussing various reporting options, organizational ombudsmen can often find ways to surface an issue for one of the company’s formal channels to investigate without either compelling the inquirer to become a whistleblower or specifically identifying a target of the concern.

Recent American history has demonstrated the need for more careful oversight of corporate conduct and the importance of the whistleblower as an agent of sound business practice. But as Congress’s efforts demonstrate, legislative attempts to fix our corporate governance problems —by offering bounties, sanctioning anonymous reporters and encouraging reports of misconduct directly from employee to the SEC—are not likely to be successful and could prove to create more problems than they solve. A better answer would seem to lie in corporations aggressively addressing their own internal procedures in a way that safeguards constructive reporting and, through that, mitigates the need for governmental intervention.

Charles Howard is a partner with Shipman and Goodwin, a Hartford, Connecticut law firm, and the author of The Organizational Ombudsman: Origins, Roles and Operations-A Legal Guide, published by the American Bar Association in 2010.

(Wikimedia Commons photo by World Coalition Against the Death Penalty)

In the end, Davis’s case received a lot of attention and the details were examined in depth. But now that his life has been taken and the narrative fades into yesterday’s news, perhaps it is time to focus on less visible miscarriages of justice, particularly among those without means. For every Troy Davis there are a few dozen others in jail who may have been unfairly convicted, but because they were not given a sentence of death, their story goes untold. 

In 1963, an indigent defendant named Clarence Gideon wrote a note by hand to the clerk of the Supreme Court. The note was his appeal to the Justices: hear my case as I was unjustly convicted. The charges against Gideon were relatively minor — that he had broken into a pool hall, stolen some money out of the cash register and taken a beer on his way out — but he had argued at his arraignment that he was too poor to hire an attorney and could not, therefore, be fairly defended. When he was nonetheless convicted and sentenced to prison, he wrote the Supreme Court asking the Justices to hear his appeal on the basis that the state should have provided him with legal representation.  The court receives many such in forma pauperis — literally, in the form of a pauper — pleas. But Gideon’s timing was spot-on. Chief Justice Earl Warren had long felt that the Sixth Amendment right to counsel implied that for those incapable of hiring their own attorney, the state must provide one. When the other eight Justices all joined him, siding with Gideon, it became one of the landmarks of constitutional law, one read by every law student and later glorified in a wonderful book by Anthony Lewis, “Gideon’s Trumpet.”

If it were only so easy. While Gideon is the kind of case that makes many rightly feel proud of our system, the real test of these landmark Supreme Court cases is in how the story proceeds after the principle has been established, and in the pursuit of justice for the indigent the record is not pretty.

A few years ago, I was picked to co-chair the National Right to Counsel Committee, a group created by the Constitution Project to examine the delivery of legal services to the poor. You can read our 2009 report here, but the title sums up our findings: “Justice Denied: America’s Continuing Neglect of our Constitutional Right to Counsel.” The issues are insufficient funding, overburdened attorneys, a lack of standards and oversight, and inconsistencies between states. 

When the Obama administration came to Washington, Attorney General Eric Holder announced the creation of a new “access to justice” initiative within the Department of Justice. Harvard Law School professor Laurence Tribe, who counts Barack Obama, John Roberts and Elena Kagan among his former HLS students, was the first Senior Counsellor to lead the initiative. Yet even his work was underfunded. The New York Times reported last year that Tribe felt neglected in his position, “with a small staff, a limited budget, little concrete authority and a portfolio far less sweeping than the one he told friends he had hoped to take on in Washington.” Earlier this year, Tribe returned to Cambridge and was replaced by Mark Childress, a former aide to Sen. Tom Daschle.

The aim of all this is simple: you should not have a better shot at justice, a better opportunity for adequate defense, depending on who arrests you in this country or where you were when you were arrested, or what court system you wind up in, or whether you can afford a competent lawyer. Competent defense is a basic constitutional right. Yet in a day and age when budgets are being examined with sharp knives, money to support the defense of the poor does not get much of a voice. Troy Davis was lucky, in a way. The attention of death penalty opponents brought out an impressive eleventh-hour legal defense team to plead his case on appeal; yet, ironically, had his defense been handled competently from the start, Davis might be alive today. Meanwhile, there are plenty of others in line behind him. The jails are filled with people who were the victims of overzealous police or prosecutors and of shoddy lawyering.

What would Gideon say?

Tim Lewis, Counsel at the law firm Schnader Harrison Segal and Lewis, is a former judge on the United States Court of Appeals for the Third Circuit and a board member of the Peter Jennings Project for Journalists and the Constitution. 

When Anders Breivik was arraigned in an Oslo court last week for his brazen acts of terrorism, it was in a hearing closed to the public and closed to the news media.

Anders Behring Breivik Facebook portrait from Wikipedia

The decision to do that was based on concern over whether Breivik would use the proceeding to send covert signals to accomplices ready to commit additional acts of violence. But it may also have been a way to ensure that Breivik did not seize this as yet another opportunity to promote his now familiar right-wing manifesto warning of Europe’s decline into “Islamification” and the coming of a new Caliphate.

Breivik is the flip side of Osama bin Laden, who described the same kind of future for Europe approvingly, and indeed, there were equally strong concerns that had bin Laden been captured and not killed he might have used the stage provided by a trial proceeding to spew venom on America and recruit more soldiers for the jihad.

To each of these men, imprisonment and perhaps even death was a small price to pay for promoting their revolutionary ideas, all of which raises an interesting series of questions: how do we protect the need for a public and transparent judicial process without rewarding acts of violence with the very mission of their violence: publicity for a set of radical ideas? Can we? Should we?

A competition of rights

Had Breivik been subjected to the American criminal justice process, it is doubtful that the judge would have closed the hearing. The Sixth Amendment to the Constitution protects the right to a public trial, in part to ensure that corruption is not at work in the courtroom, in part so that the “people” get to simply see their criminal justice system at work. Indeed, the public nature of trial proceedings is a hallmark of the American criminal justice system. Still, the Sixth Amendment does not address the kind of issue being raised here, that the public may find a “public trial” not in its interest.

The closest the Court has come to reviewing this idea would be the potential for inflammatory ideas like those espoused by Breivik leading to a mob reaction that would prevent a public trial from being a fair trial. In Moore v. Dempsey (1923) the Court ruled, 6-2, that when a trial proceeding is too public, it can turn into a circus that prevents a fair judgement.

It is easy to imagine that a trial of bin Laden or of Breivik would turn into just such a mob scene, justifying the closing of the door, and yet it is just as easy to argue that a proceeding of this magnitude demands public eyes.  Few could dispute that it is of commanding interest to the public at large that those responsible for crimes like these are properly brought to justice.

Ultimately, in America, the decision about whether to conduct a trial of this importance in public or behind closed doors would become a balancing act between the Sixth Amendment and the First Amendment. The trial would need to be conducted in a way that ensures the best chance of getting at the truth and expression, particularly political expression, would also need to be protected, no matter how odious its content.

Todd Brewster is the Director of the National Constitution Center’s Peter Jennings Project and the Center for Oral History at West Point.

Casey Anthony's Florida mug shot

Before we cleanse our minds of the sordid affair and wash our hands of a cast of characters who make the Borgias look like models of family values, it’s worth pausing to think how we all might respond on Sunday to Anthony’s freedom.

I can’t claim to have followed the sensational trial closely and really only tuned in to the media frenzy that surrounded it in the aftermath of the verdict’s announcement. But from that distance I am prepared to sign on to the national consensus that, in all likelihood, Anthony bore responsibility for the death of her little girl.

When the verdict was announced I asked Lyle Denniston to comment on it for Constitution Daily. You can read his post by clicking here. But in a nutshell, what Denniston said was that from the perspective of the Constitution, the trial jury did what they were supposed to do.

“The Constitution’s Sixth Amendment does not promise, and does not require, a perfect trial in any criminal case,” he wrote. “The amendment does guarantee that the trial will be fair.”

Denniston went on to explain the difference between “factual guilt” and “legal innocence,” a distinction that a number of commentators have drawn in the aftermath of the not-guilty verdict: Just because you’re found “not guilty” doesn’t mean that you’re “innocent.”

Determinations of factual guilt, we all learned, are unencumbered by the safeguards the Constitution erects to secure the rights of criminal defendants through jury trials.

And those safeguards are considerable. It’s almost impossible to exaggerate the importance of juries to our Constitution’s design. They appear in the Fifth, Sixth and Seventh Amendments — three of the 10 amendments that comprise the Bill of Rights.

To pronounce guilt, juries must determine that prosecutors have narrowly met the burden of legal proof “beyond a reasonable doubt.” The media and the rest of us have wider ground on which to pronounce, and sometimes rush to, judgment.

The ongoing debate

As a country we have long argued over how far those constitutional safeguards should go, and we will continue to do so long after Casey Anthony is forgotten.

Civil libertarians, fearing the rush to judgment, believe that criminal defendants’ rights are paramount, and thus that juries should err in that direction. Law-and-order proponents maintain that the Constitution’s safeguards should not be interpreted so strictly as to impede a jury’s ability to reach a correct verdict in particular cases.

Was justice served in the Anthony case? The civil libertarian in me says, yes. I’m glad to live in a country that puts in the hands of ordinary citizens – a jury of our peers – a check on various forms of prosecutorial abuse.

But as I stipulated at the outset, I have signed on to the national consensus that Casey Anthony is at best a poster-girl for maternal neglect and at worst a modern-day Medea.

Which brings me back to the question of how to react on Sunday. If last week’s verdict was legally and constitutionally correct, then justice for Casey Anthony lies somewhere outside the judicial system.

As a society, we have other means to recalibrate the scales of justice. And we have used them before – notably in the case of O.J. Simpson, which turned him, after the jury had done its work, into a social pariah. I’m inclined to think that the glove fits.

How should we respond to Anthony’s release on Sunday and the media circus that is sure to surround it? Ignore it. That would approximate justice for her and be one less distraction for the rest of us.

Steve Frank is editor of Constitution Daily and the National Constitution Center’s Chief Interpretive Officer.