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Forgive me for departing from the usual theme of this column, the law, to pay tribute to my oldest and dearest friend, Ray Gabriele. Early on March 11th I received a call from Ray’s former medical partner to tell me the sad news that Raymond had died suddenly that morning in his home. Dr. Raymond Gabriele was the embodiment of all that was good about the practice of medicine. The word, “doctor” was not enough to define the character of this caring and gentle man. Ray was a healer, in every sense of that word. He approached the practice of medicine not as a job but as a true vocation. His patients all became his friends. His was the compassionate touch, the reassuring smile that helped even the most seriously ill face their tribulations.

As time passed, Raymond became ill and valiantly moved forward with his life, looking for enrichment and enriching others. In recent years his health forced his early retirement, but he missed medicine dearly. He missed the hours spent in practice with his best friend and partner. He missed the opportunity to spend time with the patients he loved. He missed the challenge of solving medical mysteries.

Ray was not the kind to go quietly into retirement. No, not Raymond. He took classes in Shakespeare, audited interesting college courses and taught in a nursing program. His was a life of giving back for all the rewards that God and the practice of medicine had bestowed on him.

Raymond and I first met in 1962 as two scrawny freshman starting at Notre Dame High School. Standardized tests somehow were difficult for him and he did not place highly on the entrance exam, which led to his placement in one of the school’s less challenging programs. In a short time his teachers recognized the brilliant and inquisitive mind and Raymond was placed in the high honors program. We spent hours together studying Latin, Geometry and the like. We forged a friendship that has lasted half a century. Ray loved his years at ND and had the remarkable ability to remember even the smallest things that we did at that school.

Ray wanted to join me at Notre Dame University but family finances would not permit it. Instead Ray distinguished himself at Kings College, staffed by the same Holy Cross Fathers that founded both our high school and Notre Dame University. He distinguished himself academically at Kings, but standardized testing again inhibited his dream to study medicine. When he was not admitted to a U. S. medical school Ray chose to go to Italy to study. His Italian was limited to a little slang he picked up as the grandchild of Italian immigrants. In two months in Italy he mastered the language and distinguished himself in medical school. In the summers he returned to St. Vincent’s as an extern and there he met another foreign medical student, Arnold, with whom he would start his medical practice.

As Raymond progressed from intern to internist he developed remarkable diagnostic skills. I remember when my mother was gravely ill in her mid-seventies and her condition had perplexed specialists brought in to consult. Ray’s medical intuition led him to believe she had myocarditis, an infection that attacked the heart muscle. He told us that the treatment for people under 50 was a transplant. He put my mom in a medically induced coma with massive steroid treatment, and saved her life.

He was humble, never seeking praise and shying away from the limelight. His reward was the gratitude of those he healed and those he comforted through illness. To him a patient baking cookies or bringing in peppers from the garden was all the praise he needed. Raymond was never one for the trappings of success. It was life’s simple pleasures he enjoyed like dinners with his wife, Linda and the accomplishments of his children, Raymond and Lauren. His joy was in making their lives richer.

As we age we will all lose friends, some closer to us than others. As years pass many of them will be forgotten. Anyone who was blessed to have known Raymond Gabriele will never forget him. His is a legacy of love and friendship and family. God Bless you, Raymond.

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In 1984 the United States Sentencing Commission began the process of promulgating uniform sentencing guidelines to bind federal judges in the imposition of criminal sentences. The goal of the Commission was parity in sentencing. Of concern were disparate sentences for similar conduct based on the district where the crime was committed. Offenders in New York should come to expect the same range of sentences as similar offenders in California or Nebraska. What developed was a burgeoning volume of rules and enhancements. Myriad appellate decisions soon followed as prosecutors, defenders and judges sought to refine the limits and exceptions to the new rules.

Early commentators described the Guidelines as “draconian” stripping judges of otherwise wide ranging discretion in passing sentence. While laudable at first, the effect was to hamstring judges. Older, more experienced jurists who were used to a system where judges were free to judge, often artfully attempted to find the means to circumvent the Guidelines to follow their judicial instincts. Prosecutors appealed lenient sentences. Unhappy defendants appealed what they perceived to be harsh sentences.

Of particular emphasis in this evolution was the confusing system of sentence enhancements. Many were the result of the inclusion of what was called “other relevant conduct” in the computation of a Guidelines sentence This allowed prosecutors to seek an enhancement of the penalties by reference to facts that were never formally charged. They argued that these facts demonstrated additional criminal conduct that better defined the offender.

Slowly, the various Circuit Courts of Appeals began to differ on the application and appropriateness of many enhancements. Defenders challenged enhancements that were never part of the formal indictment and were based on the sometimes unsubstantiated and unchallenged information in the prosecutor’s files. In 2005 the Supreme Court found the mandatory Guidelines unconstitutional. The landmark case of United States v. Booker found that an enhancement that was proven by the lesser standard of “preponderance of evidence” offended the Sixth amendment. A companion case saved the Guidelines from total obliteration by ruling the Guidelines to be “advisory” and not mandatory.

Lawyers began to argue for non-Guidelines sentences. More appeals followed. In Gall v. United States the Supreme Court ruled that it could not be presumed that a sentence outside the advisory Guidelines range was unreasonable. Many judges found this as justification for less reliance on the Guidelines.

Prosecutors continued to battle where less severe sentences were imposed than that contemplated by the now “advisory” Guidelines. This week the Supreme Court moved the ball closer, once again, to the pre-Guidelines days of reasonable judicial discretion when it released its opinion in Pepper v. United States. Pepper originally plead guilty to serious narcotics charges prior to the Booker decision. He had cooperated with law enforcement, a reason under the Guidelines for a judge to depart downward from the Guidelines mandated sentence. That judge reduced the sentence by 75%, prompting prosecutors to appeal. The 8th Circuit Court of Appeals reversed the sentencing judge. When Pepper received a more severe sentence another appeal followed. Back it came for resentencing after the Booker decision.

Pepper’s case went up and down the appellate ladder–four times in all. The last challenged the failure to take into consideration extraordinary rehabilitation Pepper had accomplished since the imposition of the original sentence. From a drug addicted drug seller, Pepper had gone back to school; married with a child and employed, he had also reconciled with his family and completed an extensive treatment program. He argued that these factors should be considered. The courts disagreed, until this week. The Supreme Court has now mandated that judges should consider extraordinary post sentencing rehabilitation. Discretion is slowly being returned to our judges. Sentences should reflect the individual being sentenced not some rigid set of rules attempting to be universal in their application.

Connecticut needs to take note of this evolution as we have now created a state sentencing commission to investigate imposing guidelines in our state courts. Let’s let our judges, judge.

Rich Meehan is a nationally certified civil and criminal trial specialist and the senior partner in the law firm of Meehan, Meehan & Gavin, LLP, Bridgeport, Conn. For more information on Rich or his firm go to www.meehanlaw.com or www.ctdentalmalpracticelawyer.com, or e-mail Rich at rtm@meehanlaw.com

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Venue is the legal term ascribed to the location of a particular court proceeding. Generally, criminal cases are tried in the locale where the crime is alleged to have been committed. There are times, however, when pre-trial publicity is so overwhelming that the public’s right to know collides with the defendant’s right to due process and a fair trial. If you have not heard or read anything about the Cheshire home invasion case then you must live under a rock in some remote corner of the planet. The publicity surrounding the case was already extensive, long before the Hayes trial commenced. It increased exponentially through the guilt and penalty phases of that case.

Now, his co-defendant, Komisarjevsky faces the bar of justice but the dilemma facing his legal team is how to select an impartial jury, untainted by the massive publicity to date. In a recent legal maneuver his defense has sought a change of venue, looking to move the case from New Haven to Stamford. That request is not without precedent. The trial of serial killer, Michael Ross, was moved from New London to Bridgeport because of the inability to select an unbiased jury in the locale where most of Ross’ murders occurred. Komisarjevsky’s lawyers claim the Hayes trial demonized him.

The due process right to a fair trial requires that a jury be fair and impartial. It does not require that they be completely ignorant about the case. Notorious crimes attract news coverage. With the advent of the internet the public’s ability to gain information becomes almost instantaneous. Whether it is morbid fascination with the macabre or curiosity fueled by the saturation of news coverage, the grizzly details from the Hayes became almost common knowledge. How then does the court find jurors who have not formed an opinion?

Our rules provide two instances where a venue change is appropriate: ” . . . (1) If the [judge] is satisfied that a fair and impartial trial cannot be had where the case is pending, or (2) If the defendant and the [prosecutor] agree.” Here the state opposes the defense request. The standard then for the court is. “When extensive publicity surrounds a criminal trial, a defendant’s right to an impartial jury can be affected in two ways: (1) where the pretrial publicity has so saturated the community that prejudice is presumed; and (2) when the accused can demonstrate actual prejudice in the jury panel.”

Defense lawyers have an obligation to seek a venue change if they reasonably believe that an impartial jury cannot be seated. Fortunately, Connecticut’s individual voir dire (where lawyers question each prospective juror outside the presence of the others) provides the best vehicle to explore the extent of the juror’s knowledge and whether it will unfairly impact their impartiality.

The defendant bears the burden of demonstrating that he cannot otherwise obtain a fair trial. Generally that determination is not fully ripe until there has been an unsuccessful effort to seat an impartial jury. The mere fact that jurors report that they can put aside their prior knowledge and beliefs about a case is not enough. There are some people so anxious to sit on a sensational case that they will save anything to pass muster. In the wake of cases like O.J. Simpson and Robert Blake, where jurors become mini-celebrities, with TV appearances, book deals and even entertainment agents being hired, there is an incentive for some to lobby to be picked. Although at least one appellate decision has stated, “There is nothing inherently suspect about a juror’s testimony that he can judge a case fairly and impartially.”

The standard for Judge Blue is simple. Does the juror pass this test: ” . . . can [the juror] lay aside his impression or opinion and render a verdict based on the evidence presented in court?” Determining whether to believe that juror can only be achieved with an exhaustive examination.

Rich Meehan is a nationally certified civil and criminal trial specialist and the senior partner in the law firm of Meehan, Meehan & Gavin, LLP, Bridgeport, Conn. For more information on Rich or his firm go to www.meehanlaw.com or www.ctdentalmalpracticelawyer.com, or e-mail Rich at rtm@meehanlaw.com

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Defense attorneys for accused murderer, Joshua Komisarjevsky, threw down a gauntlet this week as the trial moved toward commencement, when they sought the recusal of Judge Jon Blue who had presided over the Hayes trial. Their Motion challenged the Judge’s neutrality and objectivity. Raising claims that Judge Blue abandoned his role as an objective arbiter, the defense pointed to several incidents that occurred in the Hayes trial.

Nothing is more fundamental to the concept of a fair trial than the neutrality of the presiding judge. Anyone who believes that judges are exempt from taking sides is naive. Like any of us, they can be repulsed by lurid testimony. As evidence unfolds in a trial the judge, like the jurors, begins to form strong opinions about the guilt or innocence of an accused. Unlike the rest of us, as mere observers, a judge has to fight the temptation to inject personal opinions or animus in the proceedings.

Judges in our state are governed by the Code of Judicial Conduct. That Code is a loosely stated group of principles called Canons, the purpose of which is to provide a yardstick by which a judge’s conduct is, itself, judged. The first of the Canons provides: “An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and should observe, high stan­dards of conduct so that the integrity and indepen­dence of the judiciary may be preserved.”

When an attorney or a litigant perceives that a judge has strayed from the middle ground and developed a bias for or against a party, that party has a right to move to recuse or disqualify the judge. For a lawyer about to start a complex trial the tactical decision to challenge a judge’s neutrality is a slippery slope. On the one hand the lawyer cannot ignore circumstances that strongly suggest that the judge is not being fair. That lawyer owes a duty to his client to challenge an obviously biased judge. On the other hand, that lawyer risks incurring the judge’s disfavor by raising a frivolous or baseless motion to recuse. There are lawyers who will bait a judge in an effort to instigate rulings that can later be challenged on appeal.

This generation of judges is more accountable than judges were 40 or 50 years ago. Judges are not appointed to the Superior Court for life. Appointments are for an 8 year term. In recent decades the legislature has become more demanding in its review of a judge’s conduct and rulings when reappointment hearings commence. Now, when a trial is completed lawyers on both sides answer questionnaires, anonymously, about how the judge conducted the proceedings, whether rulings were clear and in accord with the law, whether the judge was punctual and respectful to the jurors and the litigants. Judges who receive consistent negative evaluations find their chances of reappointment diminished.

In the Cheshire case the motion to disqualify was assigned to another judge who conducted an evidentiary hearing, giving the defense the opportunity to make a record. From an outsider’s viewpoint it is difficult to judge whether this request has traction or is another example of defense lawyers “playing for the fumbles.” I don’t know who coined that phrase in the context of a criminal trial, but it is an apt description of what occurs when a lawyer is faced with defending the indefensible. The more damning the evidence, the more of these issues there are that get raised, in the hope that despite the verdict, an appellate court will find that the trial judge made reversible error.

What is clear at this point is that there will be a battle of wills between Judge Blue and the defense team that will play itself out constantly as the trial progresses.

Rich Meehan is a nationally certified civil and criminal trial specialist and the senior partner in the law firm of Meehan, Meehan & Gavin, LLP, Bridgeport, Conn. For more information on Rich or his firm go to www.meehanlaw.com or www.ctdentalmalpracticelawyer.com, or e-mail Rich at rtm@meehanlaw.com

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With each new horrendous crime splashed across headlines and the nightly news; with interviews of frustrated victims and their families venting about delays and too much emphasis on the rights of defendants; with every news report of the lingering devastation to injured victims, we are left with the strong sense that our system of justice is broken. In every jury summation I have given I remind jurors that although our system is not perfect it is the fairest system of justice in the world. But when we see the grievous losses suffered by the victims of random violence in Arizona or the senseless destruction of a family in Cheshire it is difficult for people to accept the notion that our system works.

Now a group of 40 organizations, known as the “Smart on Crime Coalition” that touts itself as the “leading voices in criminal justice policy” has published its annual report of recommendations to Congress and the Administration. According to its website, “The report examines the entire criminal justice system, from the creation of new criminal laws to ex-offenders’ reentry into communities after serving their sentences. Our comprehensive recommendations range from helping to restore and empower victims to identifying ways to protect the rights of the accused.” For the interested reader the 316 page report can be downloaded from the Coalition’s website, http://besmartoncrime.org/index.php

The report examines not only the issues pertaining to due process for offenders, but also the impact of crime on victims, individually, and our society as a whole. More than just dollars and cents, the Coalition has attempted to put forth recommendations to make the system more efficient, while dealing with the reality of limited budgets, and already over-taxed resources.

Recently, there has been growing concern about the integrity of many forensic crime laboratories. In the wake of the myriad CSI TV shows, jurors have come to expect forensic analysis in almost every case. As an example of the scope of the problem, the authors note that nearly half of the 265 wrongful convictions that have been reversed through the efforts of the Innocence Project, have been the result of faulty forensic science. If you have seen Hilary Swank’s recent movie, Conviction, you learned that these convictions can only be reviewed if there was evidence preserved from which DNA could be extracted. How many convictions were wrong where there were no biological samples preserved? For each wrongfully convicted defendant who is freed, there exists an offender who remains at large and unpunished. That is a failing of the system. Hastily assembled evidence, produced from a biased viewpoint, is almost always the cause of these wrongful convictions. Better training for law enforcement, better forensic laboratories, and continued judicial oversight are all necessary to ensure that the right person is brought to justice.

As the report observes; “As a consequence, not only are innocent individuals imprisoned but dangerous criminals remain free, posing significant risks for public safety. Indeed, those identified as the true perpetrators by post-conviction DNA testing have, as a group, been convicted of at least 81 violent crimes committed while free because of faulty forensic techniques. All of these later crimes occurred while the innocent person was either imprisoned or identified as the prime suspect in the criminal investigation.”

For victims, the authors discuss what they term as restorative justice, “. . . a set of concepts, values, and practices that emphasizes repairing the harm caused by criminal behavior, and requires examining and addressing the rights and responsibilities of victims, offenders, and the community.” In this segment the Coalition calls for more focus on the victims and the need to assess the extent of the harm suffered, what is needed to remedy this harm and who should be accountable.

If we are to continue to view our system as the best, Congress and the states need to address the concerns the Coalition report discusses. As we said everyday in grammar school, ” . . .with liberty and justice for all.”

Rich Meehan is a nationally certified civil and criminal trial specialist and the senior partner in the law firm of Meehan, Meehan & Gavin, LLP, Bridgeport, Conn. For more information on Rich or his firm go to www.meehanlaw.com or www.ctdentalmalpracticelawyer.com, or e-mail Rich at rtm@meehanlaw.com

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With his all too familiar maniacal grin, Arizona shooting suspect, Jared Loughner, appeared in Federal Court this week and entered not guilty pleas to the initial charges of attempted murder. As the investigation continues, Loughner will eventually be charged with the murders of the six shooting victims, as well. Loughner’s court appointed counsel is ethically obligated to investigate every possible defense to what appears presently to be the indefensible.

The first task for this legal team will be to assess their client’s ability and willingness to assist in his defense. Recent news reports of the arraignment describe Loughner as “grinning” and “beaming” as he sat through the brief court proceeding. The Sixth Amendment guarantees all criminal defendants, no matter how apparent their guilt is, the right to present a defense. However, to do so a defendant must be legally competent. At any time in the proceedings either defense counsel or the prosecutor can file a motion with the court seeking a competency evaluation, ” . . . if there is reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense.”

Mere mental illness, alone, does not render the defendant incompetent. Even if the defendant is able to understand the nature of the criminal proceedings he must also be mentally able to assist his attorney. Once the evaluation is complete the court will hold a hearing. If the judge determines the accused is not competent he is committed for treatment. If the incompetency continues it can bring a halt to the criminal proceedings and lead to the defendant’s civil commitment. Once returned to competency the criminal charges are reinstated.

Competency to stand trial differs from the defense of insanity. In 1984, President Reagan, himself the victim of an attempted assassination by a mentally deranged assailant, signed into law the Comprehensive Crime Control Act establishing the current federal standard for the insanity defense. It is an affirmative defense which the defendant has the initial burden to demonstrate that ” . . . as a result of a severe mental disease or defect, [he] was unable to appreciate the nature and quality or the wrongfulness of his acts.” The defendant has the burden of proving the defense by the standard of “clear and convincing evidence.”

Within the time set for the filing of pre-trial motions after arraignment, the defense must give formal written notice of the intent to rely on this defense. If the defendant’s mental state does not rise to the level of the insanity defense, but nonetheless the defense intends to present expert testimony, ” . . . relating to a mental disease or defect or any other mental condition of the defendant bearing on either (1) the issue of guilt or (2) the issue of punishment in a capital case . . .” he must also provide this notice in writing to the Government.

In either instance, on motion by the prosecution, the court will order a psychiatric or psychological examination. The examination must be completed in a specific time period and a report of the findings and opinions of the evaluator filed with the Court. Incriminating statements made by the defendant during the evaluation may not be used in evidence to prove the crime, but may be admitted if relevant to the proof of the claimed mental condition.

Prior to filing this notice the defense will seek an extension of the requisite time limits in order to conduct its own evaluation of the defendant’s mental state. Insanity relates to his mental state at the time of the commission of the offense, while competency focuses on the defendant’s ongoing mental state during the proceedings. One can be legally competent to stand trial but legally insane when the act occurred. Conversely, the otherwise sane criminal can deteriorate into a state of incompetence as the case proceeds.

Rich Meehan is a nationally certified civil and criminal trial specialist and the senior partner in the law firm of Meehan, Meehan & Gavin, LLP, Bridgeport, Conn. For more information on Rich or his firm go to www.meehanlaw.com or www.ctdentalmalpracticelawyer.com, or e-mail Rich at rtm@meehanlaw.com

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As the Arizona shooting victims are buried and the survivors face long and difficult rehabilitation, the question lingers: could this tragedy have been prevented? I am not talking about restricting arms sales or dialing back the rhetoric. No, the more pointed question focuses on the suspect, Jared Loughner. His parents have not spoken yet but news reports strongly suggest that they had lost control of him. Each successive news report reveals Loughner’s descent into erratic and irrational behavior. Shouldn’t someone have seen this? Was it the responsibility of his family? Should more have been done at his Community College beyond dismissing him for his actions?

What Loughner’s family faced was not unique. His is not the first case of a mentally unstable person deteriorating and ultimately reacting with violence. Undoubtedly the lawyers appointed to represent Loughner will have him evaluated for what appears to be a viable insanity defense. But why do we have to wait until a mentally debilitated person harms others before that person can be isolated and forced into treatment?

In the 1970′s investigative reporter, Geraldo Rivera, made his mark with an expose of the horrors visited on the mentally challenged at Willowbrook State School in New York. Willowbrook had been constructed in the late 1930′s to house the mentally handicapped. It was built to accommodate 4000 but by the mid-60′s it’s population had soared to over 6000. Rivera exposed the harsh and inhumane conditions that residents endured. The scandal forced states to re-examine their mental health facilities. That, coupled with the evaporation of funding for programs for the mentally ill, led to an explosion of mentally challenged homeless.

Efforts to be proactive in identifying and isolating those disabled by mental illness who were potentially dangerous led to court challenges. Well meaning advocates raised the issue that civil rights were being violated by Draconian commitment laws that resulted in involuntary institutionalization. The result was that few laws withstood this wave of concern. Balancing the rights of the mentally ill with need to protect society was a swinging pendulum.

If Jared Loughner lived or was attending school in Connecticut the only mechanism to force treatment on him is our involuntary commitment laws. Section 17a-502 of the Connecticut General Statutes provides: “(a) Any person who a physician concludes has psychiatric disabilities and is dangerous to himself or others or gravely disabled, and is in need of immediate care and treatment in a hospital for psychiatric disabilities, may be confined in such a hospital . . . for not more than fifteen days without order of any court . . . . If the institution determines that the individual does not constitute a danger to himself or others then he must be released. If the detainee continues with the requisite disability at the expiration of the 15 day commitment the institution can start civil commitment proceedings through the probate court.” Detainees must be informed of their rights to an attorney and undergo a full psychiatric examination within 48 hours of admission.

The Department of Mental Health and Addiction Services (DHMAS) has published a patient’s rights pamphlet (available at www.ct.gov/dmhas/LIB/dmhas/publications/ptrights.pdf) to explain the process and alert the detainee and his representative to the various statutes implicated. Detainees who are properly medicated may be released back into the community where once again they may descend into the abyss of illness that forced their earlier commitment.

Arizona’s involuntary commitment laws are more liberal, allowing for a commitment of those deteriorating from mental illness and who could benefit from treatment. Any individual, including Loughner’s parents and school administrators could have petitioned for his evaluation. Unfortunately no one did. Even if they had there is no certainty that his condition would have warranted confinement or could have ultimately avoided this tragedy.

Rich Meehan is a nationally certified civil and criminal trial specialist and the senior partner in the law firm of Meehan, Meehan & Gavin, LLP, Bridgeport, Conn. For more information on Rich or his firm go to www.meehanlaw.com or www.ctdentalmalpracticelawyer.com, or e-mail Rich at rtm@meehanlaw.com

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In the wake of the tragic shootings in Arizona, the increasing vitriol that has infected America’s political rhetoric has come under scrutiny. Has the passion with which some have expressed dissatisfaction with politicians or sought their ouster served as well to ignite a powder keg? Such is one claim being discussed in the media. The target of much of this talk is the sometimes inflammatory rhetoric of Glenn Beck or Sarah Palin (“Don’t retreat; reload;” placing cross-hairs on certain political districts in the mid-term elections, including Congresswoman Gifford’s district). While Palin and Beck have not intended to directly incite violence with their invectives should this type of rhetoric be curtailed?

Should they be accountable for the conduct of extremists who twist their message into justification for their own warped actions? Palin has disavowed any intent to cause harm to anyone, but isn’t it foreseeable that her colloquialisms would do more than just appeal to the Joe-the-plumber types? In fact, Palin’s cross-hairs target map is still displayed on her Facebook page. Her message that precedes it is a benign call to political action and by no means encourages any act of violence. But is that the real message? Palin claims the symbols are surveyor’s targets and not rifle cross-hairs. Yet, the first Facebook comment that I saw from Harold H. was chilling, “Shooting people is our god given right if they betray America, keep the targets up and let’s keep going, revolution now!” How frightening, particularly after this unspeakable act of random violence!

Proponents of free speech argue that there should be no limits on what we say no matter the unintended consequences. The First Amendment protects our right to express ourselves, “Congress shall make no law . . . abridging the freedom of speech.” Are there limits on this right of expression? There are. The Constitution does not grant absolute immunity to those who would abuse this freedom to incite violence. In 1942 the United States Supreme Court decided Chaplinsky v. New Hampshire .

Chaplinsky was a Jehovah’s Witness who was prosecuted for calling a marshal a fascist and a “damned racketeer” while the marshal attempted to stop him from preaching publicly. The Court upheld the conviction noting that the case presented a gross example of the abuse of the privilege of allowing every citizen to speak his or her mind, “There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting words” those that by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”

Over the course of the next 47 years the Court narrowed this proscription allowing more inflammatory words and gestures constitutional protection. In 1969 the Court decided Brandenburg v. Ohio. Brandenburg was a member of the Klan in Ohio and was filmed advocating violence against African-Americans and Jews. He was convicted of violating that state’s criminal syndicalism statute. Ultimately the U. S. Supreme Court reversed the conviction as it discussed the evolution of its decisions that, ” . . . have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

So that is the distinction between constitutionally protected speech, like that of Palin’s, and statements that may lead to prosecution. The intent of the speaker must be shown to be “directed to inciting or producing imminent lawless action.” Inflaming the twisted passions of the some faceless mental case, if not directly intended is still shrouded in the First Amendment– little comfort for the Arizona victims!

Rich Meehan is a nationally certified civil and criminal trial specialist and the senior partner in the law firm of Meehan, Meehan & Gavin, LLP, Bridgeport, Conn. For more information on Rich or his firm go to www.meehanlaw.com or www.ctdentalmalpracticelawyer.com, or e-mail Rich at rtm@meehanlaw.com