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Liberty – When the Court Takes Away A Right

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July 3, 2013

On the eve of Independence Day, 2013, I was thinking about talking about the Declaration of Independence, freedom, our rights and privileges, and some thoughts on the current state of affairs in Alabama and America. I was going to re-post the Declaration of Independence and strongly suggest you re-read this cornerstone of our society and our conception of what freedom means to us as Americans.

Unfortunately, you don’t get to hear me wax poetic about these things. The reason: the Alabama Supreme Court released an opinion today that has the direct effect of diminishing freedom in Alabama.

We’re all familiar with the concept of “bail” in a criminal case — a payment of cash, property or bond required by a court before an accused can be released from jail that makes sure the accused shows up for court at a later date. It may be surprising to you to know that we have a statute that requires a court to set bail for someone convicted of a crime so long as the defendant is sentenced to a term of imprisonment of 20 years or less. Under the statute the trial court has no discretion — if the defendant received a 20 year sentence or lower, bail must be set.

In Ex Parte Welch, Mr. Welch was convicted of attempted murder and sentenced to 20 years’ imprisonment. Under Sec. 12-22-170 of the Alabama Code, he was entitled to have a bond set for him while his case was pending appeal. The trial court refused to set bail. He asked the Alabama Court of Criminal Appeals to order the trial court to set a bond on appeal, but the Court of Criminal Appeals refused to do so, relying upon a rule of criminal procedure — Rule 7.2, Alabama Rules of Criminal Procedure — to deny Mr. Welch’s request. Rule 7.2, unlike Sec. 12-22-170, gives the trial court discretion to set bail pending appeal in a criminal case. Under this Rule, the Court of Criminal Appeals affirmed the trial court’s decision not to set bail.

Mr. Welch asked the Alabama Supreme Court to review the conflict in Sec. 12-22-170 and Rule 7.2. The Alabama Supreme Court, over a well-reasoned dissent by Chief Justice Roy Moore, joined by Associate Justice Glenn Murdock, refused to hear the case, leaving in place the Court of Criminal Appeals’ decision.

This is quite a shock. In refusing to hear this case, the Alabama Supreme Court has effectively eroded Alabamians’ right to freedom and liberty.

The Alabama Constitution and the laws passed by our legislature give us rights — the right to possess a firearm, the right to be free from unreasonable searches and seizures, in the very first section of the very first article in the Alabama Constitution, the right to liberty, and so on. The Alabama Constitution also gives the Alabama Supreme Court the power to come up with rules of court, such as rules of procedure, rules of evidence , rules governing professional conduct for lawyers in Alabama, as well as many other areas. However, the Constitution provides that no rule “shall abridge or modify the substantive right of any party.” In essence, if any Rule of Court has the practical effect of “abridging or modifying” one of your rights, that Rule is improper.

Under the laws of Alabama, Mr. Welch had a right to bail on appeal — a right to liberty and freedom. Rule 7.2 of the Rules of Criminal Procedure modified this right by leaving it up to the judge to decide if he could get bail.

This is a disheartening decision. While you may not have sympathy for someone convicted of attempted murder that has to go on to jail, this decision is quite astounding when you think about the practical effect. Now, pretty much anyone convicted of any crime that is sentenced to jail time can be ordered to report to jail, no matter how little time they’ve been ordered to serve and no matter how likely they are to succeed on appeal. More importantly, we have dangerous precedent in place that essentially allows the Alabama Supreme Court to modify the rights given to us by the legislature by pronouncing rules in the same area.

For all those out there who are opposed to judges “legislating from the bench,” this is the epitome judicial legislation.

Read Chief Justice Roy Moore’s excellent dissent in Ex Parte Welch



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