SB12: Unconstitutional (Updated)

There are lots of votes each session that are difficult to make, and no one wants to take difficult positions that are politically indefensible. However, on January 8th, I took an oath to uphold the Constitution of the United States and the Constitution of the State of Arkansas. This is an oath I do not take lightly.

On the House Judiciary agenda this morning is SB12. This bill allows for a prosecuting attorney to request that a pro se Defendant be required to have an attorney appointed for the sole purpose of cross-examining the victim in a child sex offense trial.

This is a direct violation of the 6th Amendment of the United States Constitution, which gives an accused the right to confront the witnesses against him or her. According to Faretta v. California, 422 U.S. 806 (1975), there is an absolute right for a Defendant to represent himself or herself. Many people pick and choose the portions of the constitution that suits them and carry the banner for certain issues on freedom of expression, right to bear arms, etc. Self-representation, although not as celebrated as other portions of the constitution, is still a right given to us by our forefathers and derived through the interpretation of our Supreme Court.

This bill sailed through the Senate 35-0. The unfortunate and unintended consequence of this law (once passed) will require the poor victim of a case such as this to have to testify twice: once at trial and then again once the case has been overturned at the Supreme Court (and after we pay the Attorney General to defend the state on this unconstitutional measure).

There are already measures in place to protect the child victim in a case such as this, including closed circuit video testimony where the child does not have to be in the same room as the Defendant. This is a precarious position but one that must be made if legislators are serious about the oath we took on January 8, 2007.

Update: The bill failed, as it did not receive a motion.