8 Roger Williams U. L. Rev. 353
Roger
Williams University Law Review
Spring
2003
Comments
*353 INVITING INJUSTICE: WHY THE RHODE ISLAND SUPREME COURT SHOULD
PUBLISH OPINIONS FOR ALL CRIMINAL CASE DECISIONS
Jonathan E. Pincince [FNa1]
Copyright (c) 2003 Roger Williams University Law Review; Jonathan E. Pincince
Introduction
The Justices of the Rhode Island Supreme Court select which of their cases will become published opinions and which will not. [FN1] The rationale of the decisions made by each of the five justices is *354 unknowable for certain, [FN2] but in at least one case, State v. Gonsalves, [FN3] the court opted to not publish its order for a criminal case decision in which it arguably disregarded the law of the United States Constitution as interpreted by the United States Supreme Court.
This
Comment will argue that, in Gonsalves, the Rhode Island Supreme Court erred by
failing to grant the defendant a new trial based on his claim that he had been
denied his Sixth Amendment right to cross-examine a key prosecution witness
about her potential bias against him. This Comment will also point out what may
be more disturbing - that in its unpublished order [FN4]
the court did not even take up this constitutional issue.
One
purpose of this Comment is to bring to light an instance in which the Rhode
Island Supreme Court fell short of meeting its duty to the people of the State
of Rhode Island by (1) failing to give adequate consideration to a case with
clear implications for citizens' right to a fair trial and (2) electing to
withhold its order in Gonsalves from public scrutiny by not publishing it.
Another, more broad, purpose of this Comment is to encourage greater
accountability on the part of the Rhode Island Supreme Court and its decisions
through such public scrutiny. In an effort to move toward that ultimate end of
accountability, as well as for other reasons discussed within, it is the thesis
of this Comment that the
*355 The question must be asked, why advocate
publication of opinions for all criminal case decisions, but not civil?
There
are also basic differences between criminal and civil cases that lead to this
Comment's advocacy for publication of opinions for all criminal but not all
civil case decisions. First, criminal cases are different from civil cases
because of the potential in criminal cases for the oppression of an individual
or class of individuals by the government, by bringing charges against and
prosecuting that individual or class of individuals. Second, criminal charges
brought against an individual bring with them the possibility of imprisonment.
The taking of a person's liberty (or even in some states and the federal system
a person's life, though not in Rhode Island) is inherently a greater deprivation
than the taking of a person's property, which may happen as a result of a civil
judgment. Third, there is a stigma attached to being charged with and/or
convicted of a crime that is not equaled in the civil context. When a person has
a criminal record it will likely follow that person forever and become a factor
in every part of his life. A civil judgment *356 against an individual or a corporation simply
does not typically engender the same degree of social disapproval or stigma.
Part
I of this Comment, an analysis of State v. Gonsalves, provides a real criminal
case as background for Parts II and III, which discuss why all
Part III discusses two policy concerns of the
State of
I. State v. Gonsalves
The purpose of the discussion of State v. Gonsalves at both the trial and appellate levels is to provide an example case as background for the assertion that all Rhode Island Supreme Court *357 criminal case decisions should yield published opinions. [FN9] There are two main issues that arise from the trial court's ruling that the defendant could not introduce evidence relevant to the bias of the complaining witness. The first is a Rhode Island Rules of Evidence issue, and the second is a federal constitutional issue. Both of these issues should have been considered, but were not, by the trial court and by the Rhode Island Supreme Court.
It
is particularly important to discuss the supreme court's inattention to the
constitutional issue as a matter that should be of concern to the people of
A.
The Trial
The facts of this case were in dispute at the trial in December of 1999, and the disparities between the defendant's story and that of the complaining witness will not, and cannot, be resolved here. This account is an attempt to frame the facts of the case in a way that (1) both the defendant's version and the complaining witness's version of the events of October 9, 1998 will be clear and (2) the reader will have the opportunity to evaluate the key issues being discussed with respect to this case in their proper context.
Wayne
DaRosa Gonsalves and Robin Carter began dating in 1994. [FN10]
By 1998 they were living together in
Upon arriving at the designated time, Gonsalves
entered the apartment and began to pack his belongings and carry them to his
vehicle. [FN15]
While he was collecting his belongings, he and Carter were engaged in what both
parties agreed was a heated argument. [FN16]
At this point, Carter's and Gonsalves's stories diverged. Carter claimed that
Gonsalves assaulted her by grabbing her by the neck and pinning her up against a
wall until she was able to break free and run away. [FN17]
Gonsalves claimed that no such thing happened and that, while he was in an
argument with Carter, he did not come into physical contact with her in any way.
[FN18]
As
a result of Carter's accusation of assault against Gonsalves, he was criminally
charged with and tried for simple domestic assault. [FN19]
The issue to be discussed in this Comment arises from Gonsalves's contention
that Carter completely fabricated the assault story. Gonsalves claimed that
Carter invented the assault story because after a previous incident where Carter
smashed Gonsalves's windshield with a baseball bat she had pled nolo contendre,
or no contest, to a charge of domestic malicious damage, was placed on probation
for one year, and was required to attend domestic violence counseling. [FN20]
Most importantly, Gonsalves also contended that during the time Carter was
attending the domestic violence counseling she repeatedly made statements to the
effect that she wished that he had to go to domestic violence counseling as
well. [FN21]
Prior
to the trial, the court determined that Gonsalves's attorney would not be
allowed to cross-examine Carter regarding this previous incident in order to
establish an evidentiary basis for the claim that Carter was biased against the
defendant and concocted *359 her story of assault. The trial transcript
relevant to this issue reads as follows: [FN22]
THE
COURT: Now, the criminal record of the complaining witness. I understand that
there is no 609 [FN23]
testimony that is being offered; that what is being offered, instead, is
evidence in accordance with 404(b). [FN24]
Am I correct about that, counsel for the State?
PROSECUTION:
Correct, Your Honor.
THE
COURT: And counsel for the defendant, who would be seeking to offer this
evidence, am I correct that you'd be offering it under 404(b), not under 609?
DEFENSE:
Given that choice, yes, 404(b).
THE
COURT: So you're talking about a prior bad act, not a conviction -
DEFENSE:
Not a conviction.
THE
COURT:--with a sentence. All right. And as I understand it, several years
earlier, there was a charge of domestic assault, a simple assault.
PROSECUTION:
It was domestic mal. damage.
THE
COURT: Domestic.
PROSECUTION:
Domestic malicious damage.
THE
COURT: Domestic malicious damage, with the complaining witness, or the victim so
to speak being the plaintiff *360
[sic] herein, and the defendant being the victim in that matter, sort of the
reverse, victim and perpetrator there. Was counseling ordered as a result?
PROSECUTION:
I believe she actually received a year's probation and domestic violence
counseling.
THE
COURT: She did?
PROSECUTION:
Which would still not be a conviction under 409 purposes.
THE
COURT: 6-
PROSECUTION:
609, excuse me.
THE COURT: I'm talking about 404(b), here.
Under 404(b), I am unclear, or under 608, [FN25]
I guess is really what you'd be moving it under, I'm unclear as to how it falls
within the purview of any rule of evidence, since you're not offering it under
609.
Can
you tell me how it falls in - give me your rule and give me your argument.
DEFENSE:
I'm sorry, I can't give you the rule.
THE
COURT: Tell me what - if you don't know the rule number, tell me what you think.
Why does it come in, and I'll match it up to some rule.
DEFENSE:
I think it comes in because it shows bias; bias by the complaining witness
against my client, her inclination to color her testimony against him in this
case. The evidence that they're [sic] seeking to bring in is not so much the
prior malicious damage, but the fact she had to go to domestic violence
counseling, she was upset about that and had said to my client, at least on one
occasion, that something to the effect: How would you feel if you had to go
through it? And based on that -
THE
COURT: I'm sorry. Sheriff.
THE
SHERIFF: Yes.
*361 THE COURT: The jury is coming, so we'll have the two people move.
Hold on. Sheriff, hold one moment, please. Why don't we have - yes, exactly.
You're a student, right?
FROM
THE ARRAY: Yes.
THE
COURT: You're committing yourself to sit here during the impanelment; is that
your pleasure?
FROM
THE ARRAY: Yes.
THE
COURT: Very well.
DEFENSE:
It goes to bias.
THE
COURT: Why don't you take one seat away - stay where you are. The student. Move
one away. I have two people moving. The student, move. There you go. So it
doesn't look like you're together. I don't want to give the wrong impression,
and I'll explain to the jury why she is sitting there, just because I don't want
to confuse anybody.
Well,
it would seem to me, Rule 608 goes to evidence of character and conduct of the
witness, and I do not see that specific instances of conduct of the witness for
purposes of supporting or attacking the credibility of that witness, would be
admissible in the discretion of the trial justice.
Evidence
of prior similar, false accusations may not be proven by extrinsic evidence.
They may, however, in the discretion of the Court, if probative of truthfulness
or untruthfulness, be inquired into on cross-examination. This is not a
situation where she had previously accused him of similar conduct.
We're
talking about something totally different. And we're talking - I don't think
that - I think this is remote, and I'm going to exclude it under 403 as any
probative value would be substantially outweighed by the prejudice, and I know
of no rule under which it would be admissible.
Was
there any other issue? Yes? No? There was nothing else. I think I took care of
everything. [FN26]
First, in this exchange the judge asked the
defense counsel for a rule of evidence with which the cross-examination evidence
could be admitted. However, assuming that the evidence was relevant, then the
evidence was presumptively admissible unless the opponent of the evidence, here
the prosecution, provided a reason why the evidence should not be admitted. [FN27]
The prosecutor was never *362
asked for, nor did she offer, a reason why the evidence should not be admitted.
Second,
the evidence was relevant. The Rhode Island Rules of Evidence define relevant
evidence as “evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” [FN28]
The “any tendency” standard for admissibility is a low bar for a proponent
of evidence to meet. The evidence that the defendant sought to have admitted did
have some tendency to lead a jury to think it was more probable that the
complaining witness was fabricating her story of assault than it was without the
evidence, which was certainly a fact of consequence to the determination of the
case. Therefore, it was relevant.
Third,
the judge focused on and assumed that the evidence was being offered as evidence
of character. However, the defense attorney's argument was that the purpose of
the evidence was to show that the complaining witness was biased against the
defendant and had fabricated her story, not to show that because the complaining
witness had been arrested for domestic malicious damage she was a bad person and
thus should not be believed.
Having
been denied admission of the evidence of Carter's potential motive to fabricate
the story of assault, Gonsalves was convicted of simple domestic assault and
placed on probation for one year. [FN29]
Although the trial judge had the responsibility for admitting or excluding the
proffered evidence, trial judges can make mistakes. Rulings on evidentiary
issues can be made quickly, as the trial judge also has the responsibility to
control her courtroom and move along cases on her docket in a rapid fashion.
This is one reason why it is necessary for all criminal defendants to have the
right to appeal convictions to a higher court. Gonsalves did exercise that right
to appeal his conviction to the Rhode Island Supreme Court. In that appeal,
Gonsalves's appellate counsel fully briefed the Sixth Amendment Confrontation
Clause issue regarding the potential*363 bias of the complaining witness, [FN30]
yet in its unpublished order of February 8, 2002 the Rhode Island Supreme Court
did not address this issue. [FN31]
B.
The Rhode Island Supreme Court's Review of the Case
Rule 12A of Article I of the Rhode Island Supreme Court Rules provides that parties of an appeal to the supreme court may be made to appear before a single justice of the court for a conference, after which the justice may issue an order requiring the parties to show cause why the issues raised by the appeal should not be decided after hearing a “show cause argument.” [FN32] Such an argument in a criminal case is heard either “by the full court or by as many members of the court as are available.” [FN33] After the show cause argument, the court may issue an order or opinion reversing or modifying the judgment, remanding the case to the trial court for further proceedings, or dismissing the appeal. [FN34] In the appeal of State v. Gonsalves, the supreme court dismissed Gonsalves's appeal after hearing a show cause argument and being presented with briefs for both parties. [FN35]
The
portion of the Rhode Island Supreme Court's order relevant to this issue reads
as follows:
The
defendant first argues that the trial justice erred by refusing to allow him to
introduce evidence about a prior domestic dispute with Carter that occurred some
years before the fracas in this case. Following that incident, Carter had been
charged with and convicted of domestic malicious damage for breaking the
defendant's windshield. [FN36]
She was required to undergo domestic violence counseling. Before trial *364
on the instant charge, the trial justice denied the defendant's motion in limine
to admit this evidence and also refused to allow the defendant to speak of it
during his testimony.
Relevant
evidence is evidence that tends “to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable
than it would be without the evidence.” R.I.R.Evid.
401.
It is well-settled that questions concerning the admissibility of evidence on
the grounds of relevancy are left to the sound discretion of the trial justice,
and this Court will not disturb such a ruling absent a clear abuse of
discretion. State
v. Tassone, 749 A.2d 1112, 1117 (R.I. 2000)
(citing State
v. Gabriau, 696 A.2d 290, 294 (R.I. 1997)).
A
trial justice may certainly preclude by pretrial ruling pursuant to a motion in
limine, or later during trial, that counsel's proposed line of questioning if it
is not relevant to the trial issue, or if the proposed questioning, even if
relevant, is outweighed by any of the reasons prescribed in Rule
403 of the Rhode Island Rules of Evidence.
State
v. Oliveira, 730 A.2d 20, 24 (R.I. 1999).
Rule
403
provides that “[a]lthough relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice, confusion
of the issues, or misleading the jury, or by considerations of undue delay,
waste of time, or needless presentation of cumulative evidence.” A trial
justice's Rule
403
ruling is reviewed only for an abuse of discretion. State
v. Martinez, 651 A.2d 1189, 1193 (R.I. 1994).
In this case, Carter's domestic malicious damage charge occurred several years
before trial and was unrelated to the defendant's trial. The evidence largely
was irrelevant and primarily constituted an attempt by the defendant to show
that Carter's motive for making the instant complaint was to get even with him.
The probative value of the years-earlier incident clearly was determined to be
outweighed by its prejudicial nature, and the trial justice properly acted
within her discretion to exclude this evidence. [FN37]
The Rhode Island Supreme Court did not discuss
the constitutional issue argued by Gonsalves's attorney on appeal, despite the
proclamation in the Constitution's Supremacy Clause that “the Judges of every
State shall be bound” by the Constitution of the *365 United States. [FN38]
Dissimilar to the analysis undertaken by the Rhode Island Supreme Court, this
case can be analyzed on a purely constitutional level, leaving aside the rules
of evidence, because the Constitution is the supreme law of the land. [FN39]
In
all criminal prosecutions, the accused has the right to be confronted with the
witnesses against him. [FN40]
This Sixth Amendment right is held by defendants in state criminal proceedings
as well as federal. [FN41]
A primary interest secured by the Sixth Amendment's confrontation clause is the
right of the accused to cross-examine the witnesses testifying against him. [FN42]
“Cross-examination is the right of the party against whom the witness is
called, and the right is a valuable means of . . . testing the . . .
impartiality . . . and integrity of the witness.” [FN43]
Not only is it a right, but “in the context of our adversary system,
cross-examination is ‘beyond any doubt the greatest legal engine ever invented
for the discovery of truth.”’ [FN44]
And truth, after all, or “the pursuit of factually accurate outcomes,” [FN45]
is the object of our adversarial system as a whole.
Cross-examination
of a witness regarding possible bias against a defendant, as the defense counsel
desired to undertake in State v. Gonsalves, is a constitutional issue that has
been treated as paramount to a fair trial by the United States Supreme Court.
A
. . . particular attack on the witness'[s] credibility is effected by means of
cross-examination directed toward revealing possible biases, prejudices, or
ulterior motives of the witness as they may relate directly to issues or
personalities in the case at hand . . . . We have recognized that the exposure
of a witness'[s] motivation in testifying is a proper and important function of
the constitutionally protected right of cross-examination. [FN46]
Defense
counsel in Gonsalves sought to do just that - to expose the complaining
witness's motive for testifying against the defendant. *366
The trial judge prohibited this “proper and important function” when she
disallowed questioning that would establish the possible factual basis for the
complaining witness to falsify her testimony.
As in Davis v. Alaska, [FN47]
a leading confrontation clause case, the defense counsel in Gonsalves was unable
to introduce the necessary facts which would illustrate that the witness might
have been biased. [FN48]
In Davis, the defendant was convicted of grand larceny and burglary for stealing
a safe from a bar, and his conviction was affirmed by Alaska's highest court. [FN49]
The United States Supreme Court granted certiorari to rule on the Alaska Supreme
Court's evaluation of the adequacy of the scope of the defendant's
cross-examination of a witness. [FN50]
Richard Green was a crucial witness for the prosecution, testifying at trial
that he had seen the defendant, holding a crowbar, beside a car on the side of
the road. [FN51]
The stolen safe was later discovered at the spot in the road where Green claimed
to have seen the defendant. [FN52]
The defendant's counsel sought to cross-examine Green about possible bias in his
testimony, because he had a juvenile record and was on probation at the time the
police questioned him about the safe. [FN53]
The defense counsel wanted to argue that Green had implicated the defendant out
of fear that he would be implicated himself. [FN54]
“Not only might Green have made a hasty and faulty identification . . . to
shift suspicion away from himself . . ., but Green might have been the subject
of undue pressure from the police and made his identifications under fear of
possible probation revocation.” [FN55]
The Court stated,
We
cannot speculate as to whether the jury, as sole judge of the credibility of a
witness, would have accepted this line of reasoning had counsel been permitted
to fully present it. But we do conclude that the jurors were entitled to have
the benefit of the defense theory before them so that they could make an
informed judgment as to the weight to place on Green's *367 testimony which provided “a crucial link in the proof . . . of
petitioner's act.” [FN56]
The
Court also stated that although the defense counsel was allowed to ask Green
whether he was biased, counsel was not allowed to make a factual record from
which to argue why Green might have been biased.
On
the basis of the limited cross-examination that was permitted, the jury might
well have thought that defense counsel was engaged in a speculative and baseless
attack on the credibility of an apparently blameless witness . . . . [I]t seems
clear to us that to make any such inquiry effective, defense counsel should have
been permitted to expose to the jury the facts from which jurors, as the sole
triers of fact and credibility, could appropriately draw inferences relating to
the reliability of the witness. [FN57]
Similarly,
the defense counsel in Gonsalves should have been allowed to expose the facts
from which the jury could draw inferences relating to the reliability of the key
prosecution witness, Robin Carter, so as to not appear to be making a baseless
attack on her credibility.
The United States Supreme Court continued to
emphasize the importance of allowing a defendant sufficient cross-examination of
key prosecution witnesses in Olden v. Kentucky. [FN58]
The defendant Olden was indicted on charges of kidnapping, rape, and forcible
sodomy and convicted of forcible sodomy. [FN59]
The pivotal witness in the case was the alleged victim Matthews, who claimed
that on the night in question the defendant had forced her to have sex with him.
[FN60]
Testimony at trial established one fact upon which both parties agreed, that
Matthews's boyfriend Russell had seen Olden drop her off at the end of the
night. [FN61]
The defendant sought to argue his theory of the case - that Matthews had
concocted the rape allegation when Russell saw her exiting Olden's car to avoid
endangering her relationship with Russell. [FN62]
However, the defendant was prevented from impeaching Matthews regarding the fact
*368
that at the time of trial her relationship with Russell had continued to the
point where she was indeed still in a relationship with Russell and was living
with him. [FN63]
The trial court held, and the Kentucky Court of Appeals affirmed, that the
probative value of the evidence in question was outweighed by the possibility of
unfair prejudice against Matthews. [FN64]
The trial court stated that to have admitted into evidence the fact that
Matthews, a white woman, was living with Russell, who was black, would have
created extreme prejudice against Matthews. [FN65]
The
United States Supreme Court criticized the Kentucky Court of Appeals, because
“without acknowledging the significance of, or even adverting to, petitioner's
constitutional right to confrontation . . . [it] held that petitioner's right to
effective cross-examination was outweighed by the danger” of prejudice. [FN66]
The Rhode Island Supreme Court made the very same mistake in Gonsalves. The
courts in both cases speculated as to the possible effect of jurors' biases
against the witnesses to attempt to justify the exclusion of cross-examination
with strong potential to demonstrate the falsity of testimony that was crucial
to the prosecutions' cases. [FN67]
Trial
judges do have wide latitude “to impose reasonable limits on . . .
cross-examination based on concerns about harassment, prejudice, confusion of
the issues, the witness's safety, or interrogation that is repetitive or only
marginally relevant.” [FN68]
However, none of those issues was present to a significant degree in Gonsalves.
The danger of prejudice, which as previously established means the possibility
of the jury making a decision in the case on an improper basis, was minimal.
Possible improper bases, based on the excluded evidence, upon which jurors could
have made a decision, are (1) the possibility that the jurors would decide to
acquit the defendant because, although they thought the defendant was guilty,
they also thought that the complaining witness, having been convicted of
domestic malicious damage, did not deserve the protection of the law due to a
completely innocent victim, and (2) the possibility that the jurors would
disbelieve the complaining *369 witness because of her domestic malicious damage charge. Those
scenarios were unlikely, and when compared to the high probative value of the
excluded evidence it is clear that the probative value was not substantially
outweighed by danger of unfair prejudice.
[A]
criminal defendant states a violation of the Confrontation Clause by showing
that he was prohibited from engaging in otherwise appropriate cross-examination
designed to show a prototypical form of bias on the part of the witness, and
thereby “to expose to the jury the facts from which jurors . . . could
appropriately draw inferences relating to the reliability of the witness.” [FN69]
Wayne Gonsalves stated such a violation of the
Confrontation Clause in his appeal to the Rhode Island Supreme Court, but the
court did not see fit to reverse Gonsalves's conviction and grant him a new
trial. In Chapman v. California, [FN70]
the United States Supreme Court held that an error in limiting cross-examination
requires reversal of the conviction unless it is found to be harmless beyond a
reasonable doubt by the reviewing court. [FN71]
“[T]he constitutionally improper denial of a defendant's opportunity to
impeach a witness for bias, like other Confrontation Clause errors, is subject
to Chapman harmless-error analysis.” [FN72]
Whether
such error is harmless in a particular case depends upon a host of factors, all
readily accessible to reviewing courts. These factors include the importance of
the witness'[s] testimony in the prosecution's case, whether the testimony was
cumulative, the presence or absence of evidence corroborating or contradicting
the testimony of the witness on material points, the extent of cross-examination
otherwise permitted, and, of course, the overall strength of the prosecution's
case. [FN73]
The
error in Gonsalves was not harmless beyond a reasonable doubt. Without the
testimony of the complaining witness the prosecution likely would not have had a
case against Gonsalves. The testimony was not cumulative, as the complaining
witness was the only person to claim to have witnessed the alleged assault. The
only evidence corroborating the complaining witness's story was *370
that of a police officer who did not claim to have witnessed the assault, but
instead testified to having seen red marks on the neck of the complaining
witness shortly after the alleged assault. [FN74]
Also, while the defense attorney was allowed to cross-examine the complaining
witness on a variety of issues, he was not able to ask questions relevant to
establishing that the complaining witness had fabricated the assault by the
defendant in order to get back at him because she had been ordered to attend
domestic violence counseling as a result of their previous confrontation. All
together, the strength of the prosecution's case was not great, and the
cross-examination of the complaining witness as to her motive to fabricate was
an enormous part of the defendant's case, as the excluded questioning could
reasonably have caused the jury to question whether the complaining witness
fabricated her story. Therefore, Gonsalves's conviction should have been
reversed and a new trial granted by the Rhode Island Supreme Court, based on the
violation at trial of his Sixth Amendment right to a reasonable
cross-examination of the prosecution's key witness, and because the
constitutional error at trial was not harmless beyond a reasonable doubt.
This
analysis of State v. Gonsalves will serve as a background for the following
arguments on why the Rhode Island Supreme Court should publish opinions for all
of its criminal case decisions. Gonsalves will be referenced throughout the
remainder of this Comment to show how the arguments for publication have
practical application and to show that there should be significant concern over
the potential for injustice that now exists in the Rhode Island court system.
II. The Justice System - Why All Criminal Decisions Should Be Published
This Part operates on the author's belief that the goal of any criminal justice system should be to secure justice for criminal offenders, for victims of crime, and for society as a whole. While any definition of justice is subjective, a transparent criminal justice system will more likely achieve justice, whatever one's meaning of that may be, than a system that is opaque.
*371 A. Every Judgment Has a Generative
Power
All Rhode Island Supreme Court criminal case decisions should yield published opinions, because, even if the substantive law that is applied in a given case is nothing novel, the facts of any case may have precedential value for a future factually similar case. Thus, though the statement of the law may not be precedent-setting, the facts of two cases may be so similar as to lead the parties or the court to conclude that the law applied in the first case should be applied in the second, as well. [FN75] Cases are not decided, and laws are not applied, in a vacuum, but only in the context of facts.
In
a 1986 article on unpublished opinions, George Weaver, quoting in part Justice
Benjamin Cardozo, said, “‘Every judgment has a generative power. It begets
in its own image. Every precedent . . . has a directive force for future cases
of the same or similar nature.’ Law-making in this broader sense is especially
important in appellate courts of last resort.” [FN76]
This broad sense of law making is one of the duties of the Rhode Island Supreme
Court. Presumably, if a case substantially similar in its facts to State v.
Gonsalves were brought in a Rhode Island court, the Rhode Island Supreme Court
would want the new case to be decided correctly, or, in other words, to be
decided consistently with the Rhode Island Supreme Court's statement of the law
and its decision in Gonsalves. This would be logical because, although
unpublished orders are not citable as precedent under Rhode Island law, the
justices of the Rhode Island Supreme Court presumably want to see justice done
through consistent application of the law.
Earl
Warren, as Chief Justice of the United States Supreme Court, wrote in a case
involving obscenity that the Supreme Court heard such cases “not merely to
rule upon the alleged obscenity of a specific film or book but to establish
principles for the guidance of lower courts and legislatures. Yet most of our
decisions [in this area] have been given without opinion and have thus failed to
furnish*372
such guidance.” [FN77]
The Rhode Island Supreme Court, as the highest, and in fact the only, appellate
level court in its state, has an obligation to provide such guidance to the
lower courts of the state. When looking for interpretation of the law of Rhode
Island, there is nowhere else for federal courts, lower courts of Rhode Island,
and practitioners to turn.
B.
Unpublished Decisions as Secret Precedent
Closely related to the discussion in section A above is the argument that all criminal case decisions should yield published opinions, and thereby be citable, because of the possibility that unpublished orders will be adhered to as a type of unofficial precedent by lower court judges. [FN78] Trial court judges may treat unpublished orders as binding precedent, notwithstanding the prohibition of judges relying on such orders as precedent, in order to avoid having their decisions overturned on appeal. [FN79] For example, a Rhode Island Superior Court judge hearing a case similar to State v. Gonsalves may be tempted to look to the Rhode Island Supreme Court's order in Gonsalves for direction on how to rule on issues that arise in the new case. Whereas, as argued in section A, it is desirable to have the Rhode Island Supreme Court provide guidance about the law to the lower courts, as well as to have the lower courts follow that guidance, it is not desirable for this to happen when the parties to a case are neither aware of a lower court's adherence to an unpublished order nor allowed to analogize their case to or distinguish their case from such an order in their briefs and oral arguments.
In
reality, a decision of a lower court judge to base a ruling on an unpublished
order, even though it is not citable as precedent, to conform her ruling to what
she believes is the current state of the law, would be a choice that is neither
surprising nor necessarily flawed. Predicting how an appellate court would rule
on an issue is, essentially, the job of a lower court. As stated more eloquently
*373
by Justice Learned Hand, “I conceive that the measure of a lower court's duty
is to divine, as best it can, what would be the event of an appeal in the case
before it.” [FN80]
If this is, indeed, the duty of a lower court, then the lower court judge should
have at her disposal all of the resources that might assist her in making such a
determination, including all past decisions of the Rhode Island Supreme Court.
Also,
a lower court judge should not have the burden that necessarily comes with
knowing of a Rhode Island Supreme Court opinion yet at the same time knowing
that she is not technically bound by that same opinion. Given this burden, lower
court judges' awareness of both published and unpublished opinions may cause
confusion and inconsistency in the lower courts as to what value to give the
various opinions. One federal district court expressed similar dismay at this
quandary: “Although [this] Court is mindful of the Fourth Circuit's admonition
that [unpublished] memorandum decisions are not to be accorded precedential
value, . . . the legal trend evinced by these four memorandum decisions, with
all seven active judges participating in one or more of them, leads [this] Court
to the conclusion that [the law laid out in these memoranda] is now the law in
this circuit . . . .” [FN81]
Similarly, since the Rhode Island Supreme Court spoke as a single unit in its
unpublished order in Gonsalves, a lower court judge would be justified in
determining that what was written in the unpublished order is, in fact, the law
in Rhode Island. By making this determination in the course of ruling on issues
in a new case, the lower court judge would be fulfilling her judicial
responsibility. However, she would also be depriving the parties in the new case
of the opportunity to argue either for or against adherence to the unpublished
order. As was exhibited in Part I, a party's opportunity to distinguish his case
from an unpublished order could be crucial to the outcome of his case. After
all, “persons should not be punished for the violation of a law ‘not
sufficiently promulgated,”’ [FN82]
and an unpublished order, like the one in Gonsalves, is *374
essentially this kind of law, because it has not been disseminated to the
public.
C.
The Sacrificing of the Best Possible Legal Response
All Rhode Island Supreme Court criminal case decisions should yield published opinions because a justice, knowing that he will not be personally signing an order and that the order will be neither published nor citable, will not be subject to the same quality control pressures as when he is writing an opinion that is to be published. [FN83] First, an opinion that is not published will not be subject to the same scrutiny by the legal community and by the public as an opinion that is published. Justice Robert G. Flanders, Jr. of the Rhode Island Supreme Court has noted that a judge's opinions that will not be published will “not tend to be as fully articulated, as pointedly researched, or as convincingly argued as they are when they have been embodied in a written draft . . . that the author has prepared for eventual publication.” [FN84]
Second,
there may also be a need to prevent the court from concealing questionable
decisions. [FN85]
The court should not be able to hide a decision that may have been made in less
than good faith or with less than legal accuracy from practitioners or from the
public. If every decision is published as a full opinion, justices will know
that every decision is subject to a critique by those people that are qualified
to judge the judges. Third, there should be some concern over whether judges are
taking sufficient responsibility for the opinions that originate in their
chambers. While it is widely accepted as both necessary and proper to have a law
clerk do the initial drafting of an appellate opinion, it is questionable
whether a judge gives an opinion that is not to be published the same
supervisory attention that he gives to an opinion that will be published and
that he will sign personally.
Justice
Flanders has also written, “The substance of appellate judging - providing the
best possible judicial response to the legal *375
problems posed by the cases and controversies that are appealed to courts of
last resort - must never be sacrificed to appease the unslakable gods of
collegiality and civility . . . .” [FN86]
The Rhode Island Supreme Court's “best possible judicial response” should
also never be sacrificed for the sake of convenience or efficiency. However, it
is quite possible, as evidenced by State v. Gonsalves, that this “best
possible judicial response” is currently being sacrificed as a result of the
Rhode Island Supreme Court's policy regarding publication of opinions and
orders. It is also quite possible, then, that it is time to change this policy.
III. Public Policy Concerns of Rhode Island
Part II of this Comment discussed reasons for publication of opinions that may apply to any state or federal jurisdiction. This Part, with the uniqueness of Rhode Island in mind and for reasons that may not be as applicable to other states, discusses why Rhode Island both should and can publish opinions for all of its supreme court criminal case decisions.
A.
Rhode Islanders as Addicts and Abuse Victims - A Step Forward
The Rhode Island Supreme Court's adoption of a practice of publishing opinions for all of its criminal case decisions would be a small measure toward engendering much-needed public trust in and respect for Rhode Island's government. Government in the State of Rhode Island has a reputation for corruption and secrecy. [FN87] In just the past two decades, Rhode Island has experienced a plethora of events involving corruption in state and city government. [FN88] Numerous elected officials have been convicted of crimes involving their offices, including former Pawtucket Mayor Brian Sarault, former Rhode Island Governor Edward DiPrete and former Providence Mayor Vincent “Buddy” Cianci. [FN89] Two members of the Rhode Island Supreme Court itself have resigned in the face *376 of revelations of unethical conduct and the prospect of impeachment: Chief Justice Joseph Bevilacqua in 1991 and Chief Justice Thomas Fay in 1993. [FN90]
These
instances of individual corruption, together with controversial situations like
the collapse of the Rhode Island Share and Deposit Indemnity Corporation
(RISDIC), [FN91]
the lack of adequate separation of powers among the three branches of Rhode
Island government, [FN92]
and the three ring circus that has in recent years been the Rhode Island Ethics
Commission, [FN93]
have subjected Rhode Islanders to more than their fair share of public
corruption and impropriety and have developed in Rhode Islanders a distrust of
government and governmental officials, while at the same time instilling in them
a tolerance for and sense of amusement in public corruption likely unmatched
elsewhere. Edward Achorn, deputy editorial-pages editor of The Providence
Journal, pointed out that Rhode Islanders “often seem not outraged, not even
mildly disgusted, but, rather, delighted [by the corruption in Rhode Island].
‘Only in Rhode Island,’ they sigh, with native pride, a twinkle in their
eye.” [FN94]
On the other hand, Achorn also compared Rhode Islanders to victims of spousal
abuse. [FN95]
“Rhode Islanders are quick with excuses and fond of hoping things will get
better if they simply endure. When their politicians beat them, choke them and
rob *377
them, they laugh it off, cover up their bruises and insist that, deep down,
those guys really love them.” [FN96]
Publication
of opinions for all criminal case decisions by the Rhode Island Supreme Court
will not eliminate the persistent problem of unclean government in Rhode Island.
It would, however, be a step in the direction of alleviating the sickness that
seems to plague Rhode Islanders, Rhode Island's government and Rhode Island's
public officials. Robert P. Hey, a native Rhode Islander and former senior
editor of the Christian Science Monitor, remarked, “Addicts often require
multiple efforts to kick their addictions, and Rhode Island, in my viewing, has
been struggling with its habit for only 60 years or so.” [FN97]
Transparency in the judiciary can help Rhode Islanders, especially Rhode Island
public officials, to overcome their addiction to the soap-opera-like quality of
corruption in government. Allowing for public scrutiny of the work of the
state's highest court, in which the current non-citability of unpublished
opinions has been compared by one author to “the clang of a door being
closed,” [FN98]
can assist in bringing that transparency about.
The keeping of any government's decision-making
rationale from public scrutiny breeds distrust by the populace and should be
avoided when possible. “[D]espite Rhode Island's reputation and history as a
haven for the contrary-minded, its highest court has largely functioned as a
bastion of monolithic solidarity.” [FN99]
This “bastion of monolithic solidarity” needs to have its doors thrown wide
open, so people will both feel confident in and be informed about the workings
of the court and their government as a whole.
B. A Shining State upon a Hill
Finally, it is likely that the above arguments will be met by questions concerning the practicality and feasibility of publication of opinions for all Rhode Island Supreme Court criminal case decisions. It is necessary to address these questions, because even those conceding that the above arguments for publication are convincing may doubt whether publication of opinions for all criminal *378 case decisions is possible, due to either time or financial restrictions. In reality, however, these cost and time-consumption concerns in Rhode Island may pale in comparison to the same concerns in court systems where the output of criminal cases far exceeds that of Rhode Island. [FN100] Rhode Island's may be one court system where publication of opinions for all criminal case decisions is not only desirable, but also feasible. First, the small size of the state [FN101] and the reasonably light criminal caseload of the Rhode Island Supreme Court make publication of opinions for all criminal case decisions possible. The average annual number of criminal cases disposed of by the Rhode Island Supreme Court in the years 1997-2001 was approximately ninety-three cases. [FN102] If every one of these disposed-of criminal cases were accompanied by a publishable opinion, that would require each justice to write eighteen or nineteen publishable criminal case opinions per year. Second, the Rhode Island Supreme Court already publishes opinions for the majority of its criminal case decisions, [FN103] so the additional writing burden on the justices and the additional financial strain on the court system will likely not be prohibitive.
Rhode
Island, having the capability that many other states may not have to achieve
publication of opinions for one hundred percent of its criminal case decisions,
should take advantage of its small size by taking a large step toward open
government and justice for all of its citizens. “It is one of the happy
incidents of the federal system that a single courageous state may, if its
citizens choose, serve as a laboratory; and try novel social and economic
experiments without risk to the rest of the country.” [FN104]
Rhode Island should be that laboratory.
*379 Going forward with instituting a policy
of publishing an opinion for every Rhode Island Supreme Court criminal case
decision is an opportunity that should be seized by the Rhode Island Supreme
Court. It is an opportunity for Rhode Island to be a shining city upon a hill [FN105]
in regards to the openness of its judiciary. Rhode Island can serve as an
example for other states and the federal system to at least aspire to, whether
or not they have the same capability to achieve complete publication of opinions
for all criminal case decisions.
Conclusion
A couple of lessons can be drawn from State v. Gonsalves and from the Rhode Island Supreme Court's practice of not publishing opinions for all of its criminal case decisions. The first is relevant to proving the thesis of this Comment. It has been said that what a person does while no one is watching is the true measure of that person's character. If so, then is it also true that what a court does in its unpublished opinions is the true measure of a court's character? By failing to give the federal constitutional law issue in State v. Gonsalves adequate consideration, the Rhode Island Supreme Court treated the Sixth Amendment's Confrontation Clause as unimportant and created an appearance that the court may not have given a good faith effort when deciding this case, regardless of whether that is true. Considering the example of State v. Gonsalves, in which the Rhode Island Supreme Court failed to address a basic constitutional right, the court can no longer be allowed to operate as a clandestine institution outside of the watchful eyes of the public and the bar.
*380 The other lesson is that there are no
small injustices. Although Wayne DaRosa Gonsalves's conviction was one for which
he received only a year's probation, not a life sentence, and while there may be
degrees of injustice whereby wrongly receiving a life sentence is arguably more
unjust than receiving a year's probation, there can be no question that a line
exists between justice and injustice, and that once that line is crossed any
injustice is a harmful one to society. There is also a line between a system
that results in instances of injustice and a system that institutionally invites
injustice. While no system of laws can wholly eliminate aberrational instances
of injustice, Rhode Islanders as a society cannot tolerate a system of laws that
has institutionalized the creation of opportunities for injustice. It is the
difference between the exception that proves the rule and the exception that
swallows the rule. The rule must be justice, and one way to move toward
achieving a greater measure of justice is to make government as open and
transparent as possible. Publishing an opinion for every single criminal case
decision made by the Rhode Island Supreme Court is a step toward transparency,
and a step toward justice.
*381 Appendix [FN106]
Rhode Island Supreme Court - Manner of Disposition of Criminal Cases in 1997-2002
|
Disposition |
1997
|
1998
|
1999 |
2000 |
2001 |
2002 |
|
Criminal Cases Disposed Of |
98 |
79 |
98 |
95 |
96
|
|
|
Published Opinions and Orders |
79 |
56 |
55 |
61
|
68 |
64 |
|
15 |
15 |
23 |
27
|
25 |
30 |
|
|
34 |
25 |
21 |
29
|
34 |
26 |
|
|
30 |
16 |
11 |
5 |
9 |
8 |
|
|
Unpublished Decisions |
19 |
23 |
43 |
34 |
28
|
|
Disposition |
Totals
1997-2001 |
Annual Averages 1997-2001 |
|
Criminal Cases Disposed Of |
466 |
93.2 |
|
Published Opinions and Orders |
319 |
63.8 |
|
Per Curiam Opinions |
105 |
21 |
|
Signed Opinions |
143 |
28.6 |
|
Orders |
71 |
14.2 |
|
Unpublished Decisions |
147 |
29.4 |
[FN1].
Pursuant to section
8-1-3 of the Rhode Island General Laws, the Rhode Island Supreme Court
“shall render written opinions in all cases decided by it wherein points of
law, pleading, or practice, have arisen which are novel or of sufficient
importance to warrant written opinions.” R.I.
Gen. Laws § 8-1-3 (2002). All such opinions are published. The Rhode Island
Supreme Court makes a distinction between such opinions, which are written for
cases decided by the court en banc after the submission of briefs and oral
arguments by the parties, and orders. Article I 12A of the Rhode Island Supreme
Court Rules provides that parties involved with an appeal to the supreme court
may be made to appear before a single justice of the court for a conference,
after which the justice may issue an order requiring the parties to show cause
why the issues raised by the appeal should not be decided via a “show cause
argument.” Such an argument in a criminal case is heard either “by the full
court or by as many members of the court as are available.” R.I. Sup. Ct. R.
Art. I 12A(5) (2002). After the show cause argument, the court may issue an
order or opinion reversing or modifying the judgment, remanding the case to the
trial court for further proceedings, or dismissing the appeal, which is what
occurred in State v. Gonsalves, No. 2000-256-C.A. (R.I. Feb. 8, 2002). Such an
order may or may not be published, which is decided by the justices in a private
conference. Also important to note is Article I 16(h) of the Rhode Island
Supreme Court Rules, enacted in 1998, which states, “Unpublished orders will
not be cited by the court in its opinions and such orders will not be cited by
counsel in their briefs. Unpublished orders shall have no precedential
effect.” For the sake of simplicity, throughout this Comment the term
“decisions” will be used to refer to all cases decided and disposed of by
the Rhode Island Supreme Court.
[FN2].
Justice Robert G. Flanders, Jr. of the Rhode Island Supreme Court has stated
that all criminal case decisions by the court are not published so as not to
“clutter up the law books” with case opinions that rely on settled law and
thus merely repeat what has been said many times before in published opinions.
Interview with Robert G. Flanders, Jr., Associate Justice, Rhode Island Supreme
Court, in Providence, R.I. (Nov. 20, 2002). Justice Flanders also stated that
the factors taken into consideration when the justices decide whether a given
case will yield a published opinion or order basically hinge on what, if any,
precedential value the case would likely have. Id. He further stated that it is
not only for the efficiency of the court that the court limits its published
opinions, but also for the ease and efficiency of practicing attorneys who
should not have to spend time reading cases that have no value beyond deciding
the case for the parties involved. Id.
[FN3].
No. 2000-256-C.A. (R.I. Feb. 8, 2002) [hereinafter Gonsalves].
[FN4].
See infra text accompanying note 37.
[FN5].
There is quite a bit of case law, legislative history and scholarly material on
a related, but distinct, discussion regarding the citability, non-citability,
and potential precedential value of unpublished opinions. Though many of the
arguments in this Comment may also be applicable to that related discussion, and
though for many reasons similar to those discussed herein it seems likely that
unpublished opinions should be citable (though not binding as precedent), that
is not the topic of this Comment.
[FN6].
As an aside, it is arguable, and possibly even likely, that the State of Rhode
Island is in need of an intermediate appellate court. That is also a topic for
another article, however.
[FN7].
INS
v. Chadha, 462 U.S. 919, 945 (1983).
[FN8].
See infra Appendix.
[FN9].
No stance is taken in this Comment as to whether the defendant in State v.
Gonsalves was guilty or not guilty. It is not the verdict of the jury with which
issue is being taken, but the processes and rulings delivered at trial and on
appeal.
[FN10].
Gonsalves, supra note 3, at 1.
[FN11].
Id.
[FN12].
Id.
[FN13].
Id.
[FN14].
Pre-Briefing Statement of the Defendant-Appellant at 4, State v. Gonsalves, No.
2000-256-C.A. (R.I. Feb. 8, 2002) (on file with author).
[FN15].
Trial Record at 150, State v. Gonsalves, C.A. No. P3/98-4505A (R.I. Super. Ct.
filed June 13, 2000).
[FN16].
Id. at 29, 149.
[FN17].
Gonsalves, supra note 3, at 2.
[FN18].
Record at 184, Gonsalves (No. P3/98-4505A-C.A.).
[FN19].
Gonsalves, supra note 3, at 2.
[FN20].
Record at 7-8, Gonsalves (No. P3/98-4505A-C.A.).
[FN21].
Id. at 8.
[FN22].
The entire portions of both the trial court transcript and the supreme court
order that are relevant to the issues discussed in this Comment are included
within. This is both because they are not overly lengthy and because it is
important that the reader have the opportunity to read the discussions of the
issues in the trial and supreme courts in their entirety and to see for herself
the scarcity of attention paid to the constitutional issue.
[FN23].
Rule
609 of the Rhode Island Rules of Evidence states:
For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record. “Convicted of a crime” includes (1) pleas of guilty, (2) pleas of nolo contendre followed by a sentence (i.e. fine or imprisonment), whether or not suspended and (3) adjudications of guilt.
R.I.
R. Evid. 609(a). Robin Carter had not been convicted of a crime as defined
in Rule
609, so this rule was not applicable to the admissibility of her criminal
record.
[FN24].
Rule
404(b) of the Rhode Island Rules of Evidence states:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or to prove that defendant feared imminent bodily harm and that the fear was reasonable.
R.I.
R. Evid. 404(b).
[FN25].
Rule
608 of the Rhode Island Rules of Evidence states:
Specific instances of conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of a crime as provided in Rule 609, or, in the discretion of the trial judge, evidence of prior similar false accusations, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which the witness being cross-examined has testified.
R.I.
R. Evid. 608(b).
[FN26].
Trial Record at 6-9, State v. Gonsalves, C.A. No. P3/98-4505A (R.I. Super. Ct.
filed June 13, 2000).
[FN27].
R.I.
R. Evid. 402. Rule
402 states:
All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by the Constitution of Rhode Island, by Act of Congress, by the General Laws of Rhode Island, by these rules, or by other rules applicable in the courts of this state. Evidence which is not relevant is not admissible.
[FN28].
R.I.
R. Evid. 401.
[FN29].
Gonsalves, supra note 3, at 2.
[FN30].
See Pre-Briefing Statement of the Defendant-Appellant at 4, State v. Gonsalves,
No. 2000-256-
[FN31].
See infra text accompanying note 37.
[FN32].
R.I. Sup. Ct. R. Art. I 12A(5).
[FN33].
[FN34].
In addition, anytime during the show cause calendar process, the court may
decide to move a case over for full briefing and argument before the entire
court.
[FN35].
Gonsalves, supra note 3, at 6.
[FN36].
The Rhode Island Supreme Court may have made an error in stating that Robin
Carter had been convicted of domestic malicious damage. She had not, at least
not as defined in Rhode Island Rule of Evidence 609. She had pled nolo
contendre, or no contest, to the charge of domestic malicious damage, and
because she received neither prison time nor a monetary fine her plea to the
charge did not qualify as a conviction under
[FN37].
Gonsalves, supra note 3, at 2-4.
[FN38].
[FN39].
[FN40].
U.S.
Const. amend. VI.
[FN41].
Pointer
v. Texas, 380 U.S. 400, 403 (1965).
[FN42].
Douglas
v. Alabama, 380 U.S. 415, 418 (1965).
[FN43].
The Ottawa,
70 U.S. (3 Wall.) 268, 271 (1865).
[FN44].
Ronald J. Allen et al., Evidence: Text, Problems, and Cases 464 (Aspen 2002)
(quoting 5 John Henry Wigmore, Evidence in Trials at Common Law 32 (James
Chadbourn ed., 1974)).
[FN45].
[FN46].
Davis
v. Alaska, 415 U.S. 308, 316 (1974).
[FN47].
415
U.S. 308, 316 (1974).
[FN48].
See id.
at 318.
[FN49].
Id.
at 314.
[FN50].
Id.
at 315.
[FN51].
Id.
at 310.
[FN52].
[FN53].
[FN54].
[FN55].
[FN56].
Id. at 317 (quoting Douglas
v. Alabama, 380 U.S. 415, 419 (1965)).
[FN57].
[FN58].
488
U.S. 227 (1988).
[FN59].
Id.
at 228, 230.
[FN60].
Id.
at 228.
[FN61].
[FN62].
[FN63].
Id.
[FN64].
Id.
[FN65].
Id. at 231.
[FN66].
Id. at 232.
[FN67].
See id.
[FN68].
Delaware
v. Van Arsdall, 475 U.S. 673, 679 (1986).
[FN69].
Id.
at 680 (quoting Davis
v. Alaska, 415 U.S. 308, 318 (1974)).
[FN70].
386
U.S. 18 (1967).
[FN71].
Id.
at 24.
[FN72].
Van
Arsdall, 475 U.S. at 684.
[FN73].
Id.
[FN74].
Trial Record at 107-08, State v. Gonsalves, C.A. No. P3/98-4505A (R.I. Super.
Ct. filed June 13, 2000).
[FN75].
However, as was established earlier, unpublished Rhode Island Supreme Court
orders are not citable as precedent in Rhode Island courts either by the judge
or by parties. R.I. Sup. Ct. R. Art. I 16(h) (2002).
[FN76].
George M. Weaver, The Precedential
Value of Unpublished Judicial Opinions, 39 Mercer L. Rev. 477, 481 (1986)
(quoting Benjamin Cardozo, The Nature of the Judicial Process 21-22 (1921)).
[FN77].
Jacobellis
v. Ohio, 378 U.S. 184, 200 (1964) (Warren, C.J., dissenting).
[FN78].
See generally Weaver, supra note 76 (arguing that because unpublished opinions
have the same dispute settling capacity as published opinions, they should be
citable as persuasive authority). Also, the reader should note that although the
Gonsalves decision and many other decisions are not published, they are
available at the courthouse to be read and/or copied by the public, including
trial court judges.
[FN79].
See id.
[FN80].
Specter
Motor Serv. v. Walsh, 139 F.2d 809, 823 (2d Cir. 1944) (Hand, J.,
dissenting).
[FN81].
Durkin
v. Davis, 390 F. Supp. 249, 254 (E.D. Va. 1975), rev'd on other grounds, 538
F.2d 1037 (4th Cir. 1976).
[FN82].
Weaver, supra note 76, at 487 (quoting Jeremy Bentham, An Introduction to the
Principles of Morals and Legislation 173 (1948)).
[FN83].
See Charles E. Carpenter, The No-Citation
Rule for Unpublished Opinions: Do the Ends of Expediency for Overloaded
Appellate Courts Justify the Means of Secrecy?, 50 S.C. L. Rev. 235, 247 (1998)
(arguing that the non-citability of unpublished opinions sacrifices the quality
of appellate decisions).
[FN84].
Robert G. Flanders, Jr., The Utility
of Separate Judicial Opinions in Appellate Courts of Last Resort: Why Dissents
Are Valuable, 4 Roger Williams U. L. Rev. 401, 409 (1999).
[FN85].
See Carpenter, supra note 83.
[FN86].
Flanders, supra note 84, at 423.
[FN87].
See Mark Sappenfield, Legacy of Scandal Mars Rhode Island, Christian Sci.
Monitor, Apr. 11, 2001, § 1 at 3.
[FN88].
See Scott MacKay, The DiPrete Case: A History of Public Malfeasance from Almeida
to Zanni, Officials Sully State's Reputation, Providence J., Dec. 12, 1998, at
A17.
[FN89].
See id.
[FN90].
See R.I. Gen. Assem., Rhode Island History: Chapter IX, The Era of Reform,
1984-2000, at http://
www.rilin.state.ri.us/studteaguide/RhodeIslandHistory/chapt9.html (last visited
Mar. 13, 2003).
[FN91].
See id. RISDIC was the organization that insured state-chartered credit unions,
and its failure in 1991, in which credit union and RISDIC officials were
implicated, left thousands of Rhode Island depositors without the money they had
saved in Rhode Island credit unions. Id. Governor Bruce Sundlun later signed
legislation that created the Depositors Economic Protection Corporation, which
was charged with taking over the assets of the failed credit unions and using
the proceeds, in addition to borrowed state funds, to make the depositors whole.
Id.
[FN92].
See Carl T. Bogus, A
Radical Decision by the Rhode Island Supreme Court, 48 R.I. B.J. 13 (1999).
[FN93].
See Common Cause of Rhode Island, Key Issues: Ethics, at http://
www.commoncauseri.org/issues.html (last visited Mar. 13, 2003). The Rhode Island
Ethics Commission, which has in recent years become dominated by lawyers with
political connections, has itself been the subject of numerous ethics
complaints. Id.
[FN94].
Edward Achorn, The Government We Deserve, Providence J., Nov. 19, 2002, at B5.
[FN95].
Id.
[FN96].
Id.
[FN97].
Robert P. Hey, No Place Like Rhode Island, Christian Sci. Monitor, May 5, 2002,
§ 1 at 11.
[FN98].
Carpenter, supra note 83, at 236.
[FN99].
Flanders, supra note 84, at 422.
[FN100].
This is simply due to size and population. Rhode Island is, in fact, the
smallest state in the United States by area, and among the smallest by
population. The 2002 World Almanac and Book of Facts 363 (Williams A. McGeveran,
Jr. ed., World Almanac Education Group 2001).
[FN101].
Id.
[FN102].
Admin. Office of State Courts, State of R.I., 2001 Report on the Judiciary 33
(2002). Criminal cases disposed of by the Rhode Island Supreme Court in the
years 1997-2001 were as follows: 1997: 98 cases, 1998: 79 cases, 1999: 98 cases,
2000: 95 cases, 2001: 96 cases. Id. These criminal cases are appeals from Rhode
Island Superior Court (trial level) criminal cases, of which the Rhode Island
Superior Court disposed of 6,649 in 1997, 6,573 in 1998, 6,420 in 1999, 6,018 in
2000, and 6,212 in 2001. Id. at 34-35. See also infra Appendix.
[FN103].
See infra Appendix.
[FN104].
New
State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J.
dissenting).
[FN105].
The idea of a city, state, or nation being a “shining city upon a hill” was
first expressed by John Winthrop in 1630, when he “delivered a sermon... which
contained this idea that the new colony of Massachusetts Bay would be an example
to the world of... a peacefully interdependent and cooperative community....
They would, he said, be a shining ‘city upon a hill’ for all to see and all
would follow their example.” The University of Louisiana-Monroe, at
http://www.ulm.edu/~eller/amlit/focus/defs/city.htm (Nov. 2, 2002). Since then,
this idea of a “city upon a hill” has been endorsed as the ambition of the
United States of America by people as diverse in ideology as Supreme Court
Justice William Brennan and President Ronald Reagan. See Bradley C. Canon, Book
Review, Law & Pol. Book Rev. Nov. 1999, at 489-92,
http://www.bsos.umd.edu/gvpt/lpbr/subpages/reviews/michelman.htm; President
Ronald Reagan, Farwell Speech Broadcast to the Nation (Jan. 20, 1989), at
http://reagan.webteamone.com/speeches/farewell.cfm.
[FNa1].
The author would like to thank Rhode Island Supreme Court Associate Justices
Robert G. Flanders, Jr. and Maureen McKenna Goldberg, both of whom were
accessible and candid in sitting down with the author for a conversation about
the topic of this Comment. The author is also grateful to Professors
[FN106].
The numbers of criminal cases disposed of annually were taken from the 2001
Report on the Rhode Island Judiciary, p. 33, which is on file with the author
and is also obtainable for no charge by contacting the Rhode Island Supreme
Court by telephone at 401-222-3274. The remainder of the figures in this chart
were gathered through the use of the legal research service Westlaw® at
http://www.westlaw.com.
[FN107]. This data was not available at the time of publication,
but can be obtained from the Rhode Island Supreme Court when it releases its
2002 Report on the Rhode Island Judiciary either in print or at
http://www.ricourts.com.
[FN108]. Per Curiam opinions are opinions issued by the Rhode
Island Supreme Court that are not individually signed by one or more justices,
but instead represent the opinion of the Rhode Island Supreme Court as a whole.
[FN109]. Signed opinions are opinions issued by the Rhode Island
Supreme Court that are written and signed by at least one justice representing a
majority of the Court.
[FN110]. Orders are issued for cases summarily decided by the Rhode
Island Supreme Court pursuant to the process described supra note 1. Orders do
represent a majority decision of the court, but, like per curiam opinions, are
not signed by the justices.
[FN111]. See supra note 105. The reader is now aware of one
unpublished decision from 2002, State v. Gonsalves.
END OF DOCUMENT
(C) 2007
Thomson/West. No Claim to Orig. U.S. Govt. Works.