Massachusetts Resurrects Star Chamber

Let me apologize in advance for not doing some fancy-schmancy end-of-the-year post. It’s not that I’m not grateful to see 2011 starting to move into the rearview mirror. It’s more that I’m not wanting to waste another minute on it. If anything, 2011 seems to me to be the year the world’s police officer, the United States, finally turned itself — like too many other police officers these days — full-face towards corruption and fascism.

The fact that they aren’t crushing everyone (after all, I’m writing this, right?) yet, doesn’t really mean much. As Scott Greenfield put it in a slightly different context, “The laws are already in place, and continuing to be developed….”

I read something this morning which, if I had been wearing socks at the time, would had literally blown my socks off. Scott mentions it in his post, too, but I read it before, after following a link from Twitter. Apparently, the government hasn’t gotten around to shutting down @RadleyBalko yet either.

The State of Massachusetts has decided to officially abandon the Constitution and re-establish the Star Chamber.

As is appropriate for a Star Chamber, it was done without a vote. Just a judge and a prosecutor who cooperatively refused to conduct a public hearing in what is said to be a criminal case, as required by the Sixth Amendment of the United States Constitution.

The Star Chamber, for those who don’t know and don’t want to bother with the Wikipedia link,

was an English court of law that sat at the royal Palace of Westminster until 1641. It was made up of Privy Counsellors, as well as common-law judges and supplemented the activities of the common-law and equity courts in both civil and criminal matters. The court was set up to ensure the fair enforcement of laws against prominent people, those so powerful that ordinary courts could never convict them of their crimes. Court sessions were held in secret, with no indictments, no right of appeal, no juries, and no witnesses. Evidence was presented in writing. Over time it evolved into a political weapon, a symbol of the misuse and abuse of power by the English monarchy and courts.

The Star Chamber — an interesting mix of executive and judicial character whose primary goal was to prevent a defendant from being able to defend himself against secret charges ^[1]Faretta v. California, 95 S. Ct. 2525, 2534-5, 422 U.S. 806, 45 L. Ed. 2d 562 (1974). — had a huge influence upon the United States Constitution. You might say that the entire idea of limited government, as well as the idea of the necessity of a Bill of Rights and certain specific Amendments within that Bill, were informed by the memory of the Star Chamber.

The historical abuses of the Star Chamber are considered a primary motivating force behind the protections against compelled self-incrimination embodied in the Fifth Amendment to the United States Constitution. [footnote deleted] The meaning of “compelled testimony” under the Fifth Amendment—i.e., the conditions under which a defendant is allowed to “take the Fifth”—is thus often interpreted via reference to the inquisitorial methods of the Star Chamber.[footnote]

As the U.S. Supreme Court described it, “the Star Chamber has, for centuries, symbolized disregard of basic individual rights.”

But it’s not just the Fifth Amendment that was inspired by the abuses of the Star Chamber. The Sixth Amendment, too, grew out of that experience. The secrecy of the Star Chamber and other secret tribunals was described as “a menace to liberty.” ^[2]In re Oliver, 68 S. Ct. 499, 505-6, 333 U.S. 257, 92 L. Ed. 682 (1948).

The Sixth Amendment to the United States Constitution states:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

Generally speaking, courts in the United States have upheld this right.

A number of court cases in the United States have — proudly, from appearances — proclaimed:

[We] have been unable to find a single instance of a criminal trial conducted in camera in any federal, state, or municipal court during the history of this country. Nor have we found any record of even one such secret criminal trial in England since abolition of the Court of Star Chamber in 1641, and whether that court ever convicted people secretly is in dispute. . . . ^[3]Richmond Newspapers v. Virginia, 100 S. Ct. 2814, 2826 fn. 9, 448 U.S. 555, 65 L. Ed. 2d 973 (1980); Levine v. United States, 80 S. Ct. 1038, 1045, 362 U.S. 610, 4 L. Ed. 2d 989 (1960); In re Oliver, 68 S. Ct. 499, 504, 333 U.S. 257, 92 L. Ed. 682 (1948); Oxnard Publishing Company v. Superior Court of Ventura County, 68 Cal. Rptr. 83, 97 (1968); and possibly others.

But the right to a public trial does not mean that people can see someone is talking to a judge.

It means that they get to hear what is said.

Massachusetts says,

Fuck that. We don’t give a flying fuck what the United States Constitution states. The Star Chamber had it right.

Massachusetts cannot find escape in the idea that this was not yet a full-fledged criminal trial, either. For there is yet another Amendment contained in the Bill of Rights that carries in its DNA remnants of the collective revulsion our Founders felt for the Star Chamber.

[W]hile the Fourth Amendment was most immediately the product of contemporary revulsion against a regime of writs of assistance, its roots go far deeper. ^[4]Stanford v. Texas, 85 S. Ct. 506, 510, 379 U.S. 476, 13 L. Ed. 2d 431 (1965).

As the United States Supreme Court goes on to say, those roots spring from the use of general warrants by the Star Chamber.

As the Boston Globe has noted, the case involves political speech and the speaker — who for the moment remains anonymous — is the subject of a criminal investigation possibly somehow connected to Occupy Boston. The several newspapers in the courtroom were prevented from hearing what was happening. In fact, at one point, the defense attorneys were prevented from hearing what was happening between the executive and judicial branches of government.

Thus we learn that the Massachusetts case is no different in any other respect from those which for centuries have been considered inimical to freedom. To return to Supreme Court case cited just above,

What is significant to note is that this history [of the Star Chamber] is largely a history of conflict between the Crown and the press. It was in enforcing the laws licensing the publication of literature and, later, in prosecutions for seditious libel that general warrants were systematically used in the sixteenth, seventeenth, and eighteenth centuries. In Tudor England officers of the Crown were given roving commissions to search where they pleased in order to suppress and destroy the literature of dissent.

The United States, no longer the Star of Freedom that shines brightly on the world. In its place, Massachusetts has resurrected the Star Chamber.