23. Other Areas of Committee Print Necessitating Close Analysis: There are numerous other areas of the committee print necessitating close analysis. Space and time limitations preclude any but the barest of mention for them. They im lude, inter alia: Я. Drus Violations: Sec. 2711 et seq. deals with drugs. There should be full hearings on this important issue. Instead, the issue is buried in this omnibus code and the limited hearings with an equally limited number of witnesses. Sufficient b. Environmental Pollution:: The equally important issue of environmental pollution is contained in Sec. 2753. None of the experts in this area appears to have been invited to testify, i.e., the Sierra Club, etc. Whether or not the criminal sanctions provided in Sec. 2753 (bracketed) are is obviously something on which the experts in the field should testify at length. c. Mental Health: Secs. 6121-6126 involve mental incompetence. In the Senate hearings on S. 1 and S. 137, representatives of the mental health profession testified at length. The hearings should be broadened for a full analysis by qualified experts of this significant area of the interface between criminal law and mental health. d. Juvenile Delinquency: Similarly, there should be extended testimony by experts with respect to juvenile delinquency, dealt with in the committee print at Secs. 6101-6112. e. Rights of Native Americans: Representatives of the various Native American tribes testified extensively in the Senate hearings on S. 1 and S. 1437 with respect to the inroads those bills made on treaty rights and other rights of Native Americans. Sec. 11 of the committee print deals with Indian country jurisdiction. Here too the hearings should be expanded to have full testimony by qualified representatives of Native Americans of all viewpoints. h. Discovery in Criminal Proceedings: The difficulties of dealing adequately with such a massive, Corpus Juris Secundum type of bill affecting criminal law are well demonstrated further by Sec. 5303, dealing with demand for production of statements in a criminal proceeding and reports of witnesses. Sec. 5302 (a) denies any discovery whatsoever to the defendant of a Government witness or prospective govenment witness until such witness has testified on direct examination in the trial of the case. Every Lawyer who has ever tried a criminal case knows the enormous advantage that gives the prosecution. Few attorneys are Perry Masons Few attomeys can cross-examine successfully when seeing important statements for the first time at trial. The essence of successful advocacy is diligent preparation, not inspired ad libbing. This formulation denies the defense attorney and the defendant a right which should be accorded freely of full discovery.We are appending to our statement the applicable rule in New Jersey which instead permits full discovery, as well as an authoritative analysis thereof by Appellate Division Judge Sylvia Pressler, Rules Governing the Courts of the State of New Jersey (1979 Edition). Yet this important proposed federal rule affecting all defendants in federal criminal cases is buried in the midst of omnibus legislation, andfew, if any, witnesses on the bill will have occasion to mention this VOICE SEPTEMBER 10, 1979 Seven International Jurists Journey to the Heart of Darkness By Nat Hentoff Quiet as it's been kept by the press, a most singular caravan of foreign notables traveled through much of this nation last month. They were not magi following a star (Messiahs are, after all, no longer in short supply). These pilgrims were engaged in a more mundane pursuit-an investigation into the possibility that there may be, in these United States, violations of such internationally cherished documents as the United Nations Universal Declaration of Human Rights as well as its Standard Minimum Rules on the Treatment of Prisoners. The seven probers, all widely experienced in human-rights matters, both in their own lands and elsewhere, are: Per Eklund, recently retired Chief Judge of the Court of Appeal, Gothenberg, Sweden; Harish Chandra, Judge of the High Court of Delhi and Secretary General of the Indian Association of Lawyers; Richard Harvey, an English barrister and specialist in criminal law, prison conditions, and Southern Africa affairs; Ifeanyi Ifebigh, a Nigerian expert on international and corporate law and a practitioner before the Supreme Court of Nigeria; Sergio Insunza Barrios, a Chilean exile who used to be Minister of Justice in that country and who often appears before international tribunals such as the UN's Commission on Human Rights; Babacar Niang, a Senegalese lawyer with particular expertise in human rights; and the Honorable Sir Arthur Hugh McShine, retired Chief Justice of the Court of Appeal of the Republic of Trinidad and Tobago. Before reporting on this far-flung panel's findings, it would be useful (let alone logical) to account for their presence here in the first place. On December 11, 1978, the National Conference of Black Lawyers, the National Alliance Against Racist and Political Repression, and the Commission on Racial Justice of the United Church of Christ filed a petition with the UN. The petition went to the Commission on Human Rights' Sub-Commission on Prevention of Discrimination and Protection of Minorities. The three complainants alleged that there is a consistent pattern "of gross and reliably attested violations of human rights and fundamental freedoms of certain classes of prisoners in the United States because of their race, economic status and political beliefs." Figuring that the petition would have more weight if an independent body of international jurists found reasonable probability that the charges were true, the initial movers invited the seven judges and lawyers to look for themselves. But what if the visitors found no abuses of an order worth calling to the UN's attention? If you know anything about American prisions, you'll know how safe a bet it was to call in the jurists. Or just about any seven-souls with a memory of justice. Along with the three organizations that initially petitioned the UN, a partial list of sponsors of the seven jurists' journey into American darkness includes the Lutheran Council in the United States of America; the National Council of Churches; Black American Law Students Association of New York; the Southern Christian Leadership Conference; Team Defense (an Atlanta group of defense attorneys); and various divisions of the United Methodist Church. Split into four groups so that more territory could be covered, the jurists observed and conducted interviews with inmates and officials in a wide range of prisons. They studied affidavits, trial transcripts, and court documents, as well as government reports on the population and management of our prisons. And they met with representatives of the Justice and State departments in Washington, D.C. (the latter because it has to answer that petition to the UN). On August 21, the jurists' findings were announced at a press conference held in the UN's Church Center on UN Plaza. There was a brief report on CBS radio, but nothing on network or local television, and nothing in the next day's Times or News or Post. Or in that week's. Or in last week's. The wire services did carry a story, so why wasn't it picked up? Well, as both local and national news functionaries told people from the National Conference of Black Lawyers who were making media calls, "The big black story now is Andy Young and the fallout from his resignation." There is only room for one sizeable "black story" at a time, the media folk explained. The international jurists' report is long and detailed. In essence, they found that a "clear prima facie case" exists of human-rights violations in American prisons. (Prima facie means, in this context, that the petitioners to the UN have shown sufficiently strong evidence to require the other side to answer it.) There is an extensive section on politi-cal prisoners-beginning, of course, with the Reverend Benjamin Chavis of the Wilmington Ten. This part of the report will be explored here at a later time because the subject requires a good deal more space than a cursory reference, especially since a good many citizens resist the notion that there is any such phenomenon these days as an American "political prischer." But just by way of prologue, one of The categories of political prisoner described by the international jurists con-. sists of those "persons who after conviction and incarceration, because they become advocates for prison reform and spokespersons for the grievances of priscners as a class, are selected for additional criminal prosecutions and unusually brutal conditions of confinement." Such political prisoners are not rare in this land, as Martin. Sostre can tell you. There are also sections on abuse of the criminal process (jury selection, prosecutorial misconduct, exclusion of evidence), and sentencing. The jurists note with appailed wonder that one 14year-old boy was given a 48-year sentence for armed robbery. And on the Death Rows around the country, they observe that "the taking of a black life, even by another black, is statistically one-tenth as likely to be punished by death as the taking of a white life. Yet a black who took a white life is five times as likely to receive the death penalty as a white doing the same thing. No white has ever been sentenced to death for murdering a black person.' Then we get to "Prison Conditions." According to the investigative jurists, a sizable number of the UN's Standard Minimum Rules on the Treatment of Prisoners are violated here "to an extent warranting and requiring a United Nations investigation." For instance, rules concerning personal hygiene, medical services, and discipline and punishment. The visitors take particular notice of harshly repressive "behavior modification units,' such as those in Marion County Federal Penitentiary, Illinois, among other institutions. There are also accounts of systematic medical maltreatment and "overprescription of psychotropic or heavily sedative drugs." (See the previous threecolumns in this series.) And as for ways in which abused prisoners might be able to get some relief, the jurists state: "We were forcibly struck by either the absence or ineffectiveness of grievance procedures for inmates, particularly those in maximum security conditions. The Federal and State Prison administrations in many instances do not seem to have learned anything from the events at Attica and indeed it appears that many seem to regard the mere articulation of a complaint as a disciplinary offense." But what of the courts? "Behind the few cases where prisoners manage to get their grievances heard by a court," say the international jurists, "must lie hundreds and probably thousands who lack the ability, knowledge or facilities to obtain redress. We therefore urge the United Nations to act on their behalf and to investigate the violations evidenced to us by the representatives of this clan of poor and minority prisoners who form the overwhelming proportion of inmates." After reading the report, I talked with one of the jurists, Richard Harvey. "The seven of us," he said, "came here from quite different judicial backgrounds and traditions, including the different kinds of prison systems we have direct knowledge of in various parts of the world. And we are hardly the same in temperament, some of us being rather conservative and restrained. But I can tell you that all of us were shocked by what we found in this country.. "It's impossible to say how strongly shocked we were. We did not expect to find anything like this. The pervasive institutional racism, for instance. Prison after prison looked like a colonial settingoverwhelming white forces of guards in charge of prison populations that are largely not white. And the racism-as the report shows-goes much deeper than that throughout the whole criminal justice system, from prosecutorial misconduct to medical malpractice inside the prisons. Including all that drugging. I would say that some of that medical treatment is criminally negligentes "What especially staggered us," Harvey continued, "is that a country as economically advanced as the United States should have prisons which are effectively warehouses for the poor, especially the minority poor. But very few people seem to care, do they? I was quite surprised that after we gave that press conference on August 21, there was nothing in the Times. Or hardly anywhere. One would have thought that at least the -Times." Harvey agrees with a number of other sources familiar with UN affairs that the petition asking for an investigation of human-rights abuses in American prisonsto which the international jurists' report has now been appended-is likely to get to the floor of the General Assembly. "There is no question," he says, "that United States policy on human rights has had a salutary effect around the world. AIL the more reason then for its own mess to be examined, particularly since a number of countries that have been attacked by America on these very grounds will be most eager to point the finger back. Furthermore, if we can expose America's abuses at this high a level at the UN-the first time any nation's human rights policies will have been this thoroughly dissected-there can be a breakthrough toward focusing on what other nations are doing in their prisons." RULES GOVERNING CRIMINAL PRACTICE 3:13-3 the examination any statement of the witness being deposed which is in the possession of the prosecuting attorney and which he would be required to make available to the defendant pursuant to R. 3:17 if the witness were testifying at trial. Note: Source-R.R. 3:5-8(a) (b) (c) (d) (e). COMMENT The text of this rule makes no change in the source rule, which was amended in September, 1967, following the proposal of the tentative draft rule. The only changes made by the amended source rule in the tentative draft rule are in paragraph (a) which (1) made clear that the deposition of a material witness may be taken when it appears that he may (rather than will) be unable to or prevented from attending trial, and (2) eliminated the proposal of the tentative draft rule that depositions on written interrogatories be permitted in lieu of oral testimony. R.R. 3:5-8 referred to in the tentative draft comment should be understood to refer to the source rule prior to its 1967 amendment. 3:13-3. Discovery and Inspection (a) Discovery by the Defendant. Upon written request by the defendant, the prosecuting attorney shall permit defendant to inspect and copy or photograph any relevant (1) books, tangible objects, papers or documents obtained from or belonging to him; (2) records of statements or confessions, signed or unsigned, by the defendant or copies thereof. (3) grand jury testimony; (4) results or reports of physical or mental examinations and of scientific tests or experiments made in connection with the matter or copies thereof, which are within the possession, custody or control of the prosecuting attorney. (5) reports or records of prior convictions of the defendant; (6) books, papers, documents, or copies thereof, or tangible objects, buildings or places which are within the possession, custody or control of the State; (7) names and addresses of any persons whom the prosecuting attorney knows to have relevant evidence or information including a designation by the prosecuting attorney as to which of those persons he may call as witnesses; (8) record of statements, signed or unsigned, by such persons or by co-defendants which are within the possession, custody or control of the prosecuting attorney and any relevant record of prior conviction of such persons; (9) police reports which are within the possession, custody, or control of the prosecuting attorney; |