Troy’s Package

Hee hee, the A.G.’s legislative package is definitely not soft on crime, but it comes up short on substance.

There isn’t anything in it that is truly stupid. Some of his ideas even make sense. I agree that fleeing in a car from the police probably ought to be a felony and not just a misdemeanor, as it is now.

Then there’s a few that make me wonder if the purpose is anything other than giving him a chance to thump his chest:

King’s package also addresses technology once only available to police – electronic stun guns – that’s now available commerically [sic] to the public.

His legislation, drafted at the request of law enforcement, would prohibit their sale to anyone under 18 and to make it a separate crime, punishable by one to 10 years in prison, to use one to commit another crime.

King said he’s not aware of any crimes being committed with stun guns in Alabama yet, but he figures it’s only a matter of time.

I guess his recently declared love for the right to bear arms only goes so far.  

Other proposals have serious constitutional problems:

Another way TV and technology figures into King’s legislative package is in child abuse and molestation cases. King has prepared legislation that would allow a young victim to testify via closed-circuit television in a separate room from the defendant. Currently, they can testify in the judge’s chambers away from any spectators, but the defendant is present.

“The reason we see the number of plea bargains we do is because these child victims emotionally and psychologically have a difficult time testifying. The are terrified” of being near the defendants, King said.

Here’s the key parts of that bill (sb 265):

§15-25-2.

“(a) In any criminal prosecution referred to in Section 15-25-1, the court may, upon motion of the district attorney or Attorney General, for good cause shown and after notice to the defendant, may order the taking of a videotaped deposition of an alleged victim of or witness to said the crime who is under the age of 16 at the time of such the order.

(b) On any motion for a videotaped deposition of the victim or a witness, the court shall consider the age and maturity of the child, the nature of the offense, the nature of testimony that may be expected, and the possible effect that such the testimony in person at trial may have on the victim or witness, along with any other relevant matters that may be required by Supreme Court rule.

(c) During the taping of a videotaped depositions deposition authorized pursuant to this section, the following persons shall be in the room with the child: , the attorney of the parents of the child would be allowed to be present at the tapings. If the court orders that a deposition of the victim or witness shall be had as provided herein, the district attorney shall make all necessary arrangements to have the same videotaped. The prosecuting attorney, the attorney for the defendant, and a person whose presence, in the judgment of the court, contributes to the well-being of the child and who has dealt with the child in a therapeutic setting regarding the abuse. Additional persons, other than the defendant, may be admitted into the room in the discretion of the court.

(d) Such deposition shall be taken before the judge in his chambers or in such other suitable location as the court may direct and shall be conducted in the presence of the district attorney, the defendant and his attorney, and such other persons as the court in its discretion may permit, taking into consideration the welfare and well-being of the alleged child victim or witness. Examination and cross-examination of the alleged victim or witness shall proceed at the taking of the videotaped deposition as though the alleged victim or witness were testifying personally in the trial of the case. The state shall provide the attorney for the defendant with reasonable access and means to view and hear the videotaped deposition at a suitable and reasonable time prior to the trial of the case. Objections to the introduction into the record of such deposition shall be heard by the judge in whose presence the deposition was taken, and unless the court determines that its introduction in lieu of the victim’s or witness’s actual appearance as a witness at the trial will unfairly prejudice the defendant, such videotaped deposition shall be entered into the record by the state in lieu of the direct testimony of the alleged victim or witness and shall be viewed and heard at the trial of the case.

As we all know, the constitution gives us the right to confront the witnesses against us. Nevertheless, in Maryland v. Craig, Scotus upheld a Maryland procedure that allowed closed-circuit testimony:

In sum, we conclude that where necessary to protect a child witness from trauma that would be caused by testifying in the physical presence of the defendant, at least where such trauma would impair the child’s ability to communicate, the Confrontation Clause does not prohibit use of a procedure that, despite the absence of face-to-face confrontation, ensures the reliability of the evidence by subjecting it to rigorous adversarial testing and thereby preserves the essence of effective confrontation. Because there is no dispute that the child witnesses in this case testified under oath, were subject to full cross-examination, and were able to be observed by the judge, jury, and defendant as they testified, we conclude that, to the extent that a proper finding of necessity has been made, the admission of such testimony would be consonant with the Confrontation Clause.

From a quick read of Troy’s bill, I see a few important differences between it and the law upheld in Craig.

First, Troy’s applies to the victim OR a child witness. The law in Craig only involved the victim.

Second, Troy’s bill allows a pre-trial deposition. The law in Craig required the testimony be given during the trial and broadcast simultaneously to the courtroom.

Third, the threshold is much lower in Troy’s bill: “the court shall consider the age and maturity of the child, the nature of the offense, the nature of testimony that may be expected, and the possible effect that such the testimony in person at trial may have on the victim or witness.” Scotus, though, held that the court must conclude the child will suffer serious harm, rather than just “mere nervousness or excitement or some reluctance to testify.” Further, the harm must be due to the defendant himself, not just the fact of testifying.

Fourth, Scotus – Justice Scalia in particular – has really re-invigorated the confrontation clause over the last couple of years. So I’d expect future cases on this issue to tighten the rules, not loosen them.

Fifth, as a snide aside, does anyone else find it interesting that Troy thinks children are responsible enough to be executed, but not responsible enough to tell the truth under oath?

All that said, what I find most interesting about Troy’s legislative package is it’s narrow-minded focus on criminal issues. He is a general practitioner, responsible for all the state’s legal needs. But all he offers is “get-tough-on-crime” legislation. I know it would asking too much for him to address legal problems that harm the defendants. But at least he could try to address some civil issues. What does he have to offer on campaign finance issues? Or PAC to PAC? Or curbing lobbyists? How about some guidance for legislators about what kind of employment is and is not proper? Or do we have no needs more pressing than pre-emptively eliminating stun-guns?  

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6 Comments on “Troy’s Package”

  1. Old Prosecutor Says:

    What a surprise. Troy King more interested in politicaL gain then substance. The man is simply a lightweight politican

  2. Loretta Nall Says:

    In drug cases where ‘confidential informants’ are used the defendant is not allowed to face their accuser. Isn’t it just lovely what the drug war has done to our Constitution?

  3. Dan Says:

    I don’t think Troy King is a good enough lawyer to offer advice on complicated legal matters like campaign finance or double-dipping.

    But any idiot can say we should execute pedofiles or not force a poor child victim to testify in open court.

  4. Demopolite Says:

    “In drug cases where ‘confidential informants’ are used the defendant is not allowed to face their accuser.”

    If the CI is just used as part of the probable cause to get a warrant, then no. But if the CI is going to TESTIFY, then they must do so in open court where the defendant has the ability to cross-examine. In other words, the right of confrontation does not necessarily apply in a non-trial context, but does apply in a trial context.

    …which is why this law goes against everything that the Sixth Amendment stands for, the Supreme Court be damned.


  5. […] King’s crime package bills cleared a House committee. See Wheeler’s post to learn more about Troy’s […]


  6. […] already offered my thoughts on the constitutionality of this bill, so I’ll just point out that Rep. Ward must have flunked elementary logic. The point of the […]


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