Author Archives: Gideon

Give an inch and now they’re suggesting forced interrogations

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herr-flick

See, this is the problem with budging on absolute protections of the Constitution. Once you start saying “everyone has the right, except…”, the “except” becomes the target of rapid bombardment to see how far that hole will go. Once you give an inch, law professors like Akhil Amar and Eric Posner show up to argue how that inch really is a mile, because it’s law and you’re terrible at math.

“Immediate danger” from the public safety exception becomes “civilized compulsory interrogations”. I can’t even type those words without images of the German secret police swirling through my head.

Before we get into the nitty-gritty of these proposals, let’s start where it’s always the simplest, at the beginning. The Fifth Amendment to the United States Constitution provides:

No person shall be compelled in any criminal case to be a witness against himself

Plainly interpreted, this means that no can be required/forced/compelled to answer questions by law enforcement that would show that the person being question was involved in/guilty of a crime. In Miranda, it’s been popularized as “the right to remain silent”, but legally, it’s “the privilege against self-incrimination”. The punishment for violating one’s Constitutional Right is that the Government cannot then use that information or evidence obtained because of that information to then turn around and convict you.

But what if they have no interest in prosecuting you? What if you’re nothing but a small fish and they want someone else? What if they just want the information you have and are willing to forgo prosecuting you in exchange?

Some are suggesting just that, and more. So first Amar, who proposes the following:

The best solution would simply be for the Supreme Court to change course and allow the admission of all evidence gathered as a result of a civilized compulsory interrogation.

Under current law, a suspect can be forced to hand over a blood sample or a fingerprint, because these items are reliable physical evidence, and they don’t violate Fifth Amendment, because blood and prints are not “witnesses,” strictly speaking, and because they are reliable in a way that pure words are not. The same logic holds for admitting all fruit and leads generated by compelled interrogation.

But even if the court won’t go that far, it should hold that in compelled interrogations involving serious and ongoing threats to public safety, evidence and leads obtained by interrogation of the suspect should always be admissible.

Let’s bring coffee, donuts, and yes, lawyers, into the interrogation room. But the law should also require the suspect to answer all questions under pain of contempt—meaning he can be jailed if he refuses—and under penalty of perjury.

His lawyer should understand that her job is not to aid the suspect in lying or stonewalling. Suspects will of course be tempted to lie in some situations. But even lies can often provide cues and clues to trained investigators, and interrogators should also be able to give lie-detector tests with the oversight of a judge.

This is the right balance for public safety and a defendant’s rights—and the Fifth Amendment, properly understood, allows it.

Did you get that? Amar is proposing that any time there is “ongoing threat to public safety”, which he neglects to define, the police get to question you, no limits, no safeguards, no restrictions. They ask you questions and you must answer. Because only guilty people are ever questioned and only guilty people are ever apprehended and Amar is lawprof who’s never set foot in a courtroom representing an actual defendant whose Life and Liberty are on the line.

I’m sorry; I didn’t warn you before the last blockquote. I won’t be so foolish as to ignore the warning now. Warning: this next blockquote will make you want to throw things at your computer screen or perhaps mutilate a soft toy. Please resist the urge to do either, in the name of decency.

Amar’s companion/counterpart/coincidental comrade, Eric Posner offers the following suggestions:

There is a better approach. Imagine a law that grants police broad but temporary detention and interrogation powers in the aftermath of a mass killing in a public location—in other words, any potentially terrorist shooting or bombing.

The police must first seek permission from a judge who will determine whether the act of violence satisfies the criteria, spelled out in the law, about the magnitude and circumstances of the attack.

The police may then detain for one week, say, those whom they reasonably believe responsible for the attack, and interrogate them without informing them of their Miranda rights. Perhaps, the term can be renewed for good cause.

The government would provide these detainees with lawyers who would not be allowed to meet with them, but could appeal the initial judicial order, and examine and challenge before a judge the government’s evidence that the detainee is responsible for the attack.

The judge would have the power to revoke the detention power if it is no longer necessary, and to order the release of the detainees if they cannot be tied to the attack.

Statements obtained from the detainee could be used against him in trial, unless they were obtained through coercion, intimidation, or deception. Conviction would require corroborating evidence.

“Ve vill ask ze qvestions and you vill answer ze qvestions. Do we understand each other, hmm?” he might as well have said. I can imagine, Mr? Prof? Posner a law where a terrorist attack is so broadly defined that it might well cover any allegation of any criminal activity. I can imagine a law where you have simultaneously rendered useless both the Fifth and Sixth Amendments to the United States Constitution (remember, there is that Sixth Amendment right to counsel). I can imagine an “age of terror” as you put it, in which who is a terrorist is dependent entirely on the whims of those who wield the power to make that decision. As Sensei Mark Bennett puts it:

[W]hen the gov­ern­ment talks about “ter­ror­ists,” they’re talk­ing about the peo­ple who they can claim are ter­ror­ists. And when they are talk­ing about the peo­ple who they can claim are ter­ror­ists, they are talk­ing about you and me.

And you and me are people they may decide they don’t like anymore.

What they’re proposing, when it comes down to it, is to grant the entire law enforcement community and the military industrial complex in America the authority to detain any person in the United States, regardless of their citizenship, for a period of time up to a week or longer, for whom there is a hunch – a suspicion? it’s not really clear – that there is involvement in “terrorist” activity. During that detention, that person can be interrogated – civilly, of course – without lawyers, forced to answer and then have those answers used against them in court.

I wrote last week about two eerily similar things: the desire of the State to be able to stop anyone on the street and question them and their desire to possess the power of the investigative subpoena.

You give them an inch on the Constitution; they want to take the whole thing away. You better familiarize yourself with Herr Flick up there.

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Lest you think the entire world has gone mad, read this post by Greenfield and this roundup at DailyKos for more intelligent reactions.

H/T: InnocentPete

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Image of Richard Gibson as Herr Otto Flick, of the Gestapo, from here.

Panel Discussion on the Right to Record Police

The Connecticut Foundation for Open Government and the Connecticut Society of Professional Journalists are holding a panel discussion tomorrow evening (Tuesday, April 23rd) at Quinnipiac University School of Law on the right to record police interactions in CT. It starts at 6:30 and ends at 9:00pm and is free to the public. If you can’t make it, it will be broadcast (live?) on CT-N.

The panelists are Kevin Kane (Chief State’s Attorney), Sandy Staub (Legal Director ACLU-CT), Mickey Osterreicher (General Counsel National Press Photographer’s Association), Chief Matt Reed, Windsor chief of Police, VP of Connecticut Police Chiefs Association (also a graduate of WNEC), Mario Cerame (author of The Right to Record Police in Connecticut, who also has a law review article on the subject) and is moderated by Attorney Dan Klau, who, among other things, authors a blawg.

This is particularly timely in light of the fact that the Judiciary Committee just approved a bill that would legalize the videotaping of police interactions.

The cost of Quarles: from Tsarnaev to you

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It appears now that Dzhokhar Tsarnaev was begun to be questioned late on Sunday evening, almost 48 hours after he was apprehended, hiding in a boat in a backyard.

There are some things that should be without dispute:

1. That Tsarnaev is an American Citizen;

2. That the Constitution and all of its protections apply to all American Citizens (and, to be sure, to all residents, but that’s not necessary here), and;

3. That, by virtue of 1 & 2, Tsarnaev has the inalienable right to remain silent, to be appointed counsel and to not be made a witness against himself.

It is irrelevant that the privilege against self-incrimination is a trial right, in that if the right is violated, the statements cannot be used against him at his own trial. It is irrelevant that Miranda is prophylactic and isn’t a right in of itself, but an advisement of already existing rights.

The right exists. It is his right; it is my right; it is your right.

And yet we dither and equivocate and we say, but there is an exception. All laws have an exception. This one is called the “we are scared” exception, also commonly known as the “public safety exception”. It is also the exception to swallow the right.

In New York v. Quarles, a 5-4 majority of the United States Supreme Court said that if the police were faced with the “immediate necessity” of obtaining information that would prevent danger to themselves or others they could invoke a “narrow exception” to the Miranda rule and question a suspect about that “immediate” danger without having to advise him of his rights first¹. They further ruled that those statements would then be admissible in court to prove the defendant’s guilt. See also U.S. v. Abdulmutallab [PDF].

The Obama administration, which has put on a clinic [Bazelon at Slate] of how to forcefully and conclusively [FBI memo] encroach on individual liberties [NYTimes], was quick to state [TPM] that they “plan to invoke the public-safety exception to Miranda in order to question the suspect extensively about other potential explosive devices or accomplices, and to gain critical intelligence.”

It’s been 48 hours. You know the funny thing? As of 9:00pm on Friday night, there were people lining the streets of Boston, cheering and celebrating as they so much deserved to do.

Had there truly been a immediate necessity and an imminent threat to public safety, would that have been allowed? Should it?

I don’t say the above to participate in the more looney fringes of internet discussion that are sure to crop up arguing that the whole thing was a set up, but rather to point out the obvious: that the “public safety” exception is an excuse used by the administration to rip a hole into the Constitution and drive a truck through it.

Others have written more persuasively than I have about why Tsarnaev should have been read his rights: James Holmes was, Timothy McVeigh was.

What makes Tsarnaev different? His name? The color of his skin? The fact that he used a “bomb” and not a gun?

Is our application of the Constitution dependent on the person who seeks its protection? Scratch that; of course it is. Should it be? Can we sustain our moral superiority as the foremost defender of freedom and liberty in the world if we are so quick to make it a Constitution of convenience?

The cost of Quarles is that we are living in a fear-ridden society; that everything is a “public safety exception”. That the bogeyman at night is now a terrorist with a slightly different colored skin, nevermind the fact that we used to proudly trumpet being the “melting pot of the world”. We are xenophobic and afraid. Hiding in the dark clutching our guns, paralyzed in fear, because the terrorists are out to get us, whoever they might be. We are like a person in the throes of a mental illness whose anxiety and fear have taken over every aspect of their existence.

We are a country that has sacrificed everything we believed in at the altar of a promise of safety:

our constitutional rights are now deemed to be partial or provisional rather than absolute, do not necessarily apply to everyone, and can be revoked by the government at any time.

A safety that is illusory – and if it comes, at what cost? Consider the following quote:

“I think that the good news is we don’t need ‘enemy combatant’ to get all the information we need out of him. No. 1, the court, the one court that has ruled, has allowed a lot of flexibility in the public safety exception before you Mirandize somebody,” Senator Schumer said. “But second, at any time, what’s called a HIG, a High-Value Interrogation Group, composed of the F.B.I., C.I.A. and anyone else, can question him without a lawyer in a secured situation and find out whatever they need.”

A second U.S. Senator (Schumer) had said, with a straight face apparently, that an American citizen can be interrogated after denying him the Sixth Amendment right to counsel “in a secured situation and find out whatever they need”. If that isn’t an euphemism for torture, I don’t know what is.

Tsarnaev – and you and I – has the right, Miranda notwithstanding, to refuse to answer questions. Do you realistically think that is an option here?¹ Either he won’t be aware of that right (in which case the government has subverted a U.S. citizen’s Constitutional right), or he won’t be allowed to exercise that right if he knows it. I don’t know which is more frightening.

And therein lies the problem. We can quibble about the legal realities of the admissibility of his statement, but such a discussion is a mere distraction allowing the Government to get away with much more. They’re making off with our rights and our protections; while you’re staunchly guarding the second, they’ve stolen your fourth and fifth and sixth. They’ve made it impossible to exercise a right, either because you weren’t paying attention or too scared of terrorism.

You want to know something funny? There’s a perfectly legal way for the Government to have its cake and eat it too: they can “question” Tsarnaev under the “public safety” exception, the Mirandize him, then ask him the same questions again and the second statements are now admissible in Court. There. Dispensed with that pesky “Fifth Amendment”.

You think this doesn’t happen every day in police stations across America? You’re wrong. Ask any cop you know about the “pre-interview“. It’s here. It’s real. It’s in violation of your Fifth Amendment right.

If Quarles was about the immediate need to find a gun in a supermarket and Tsarnaev is about finding “critical information” 48 hours later, is there a scenario that isn’t covered?

The Constitution is a document that deserves more than lip service. It is a document that deserves obedience. It is not a suggestion of rights that may be offered, if enough people agree that the recipient is deserving. It is there to protect the worst among us, because if the worst are protected, then the best are protected – and more importantly, the vast majority of us – the only human – are protected.

The rights exist. They are his rights; they are my rights; they are your rights. Do you want your rights to be subject to a popularity vote? To convenience? To the color of your skin?

If the world is full of “terrorists” and “criminals”, then will you abide a judge ruling that the “public safety” exception wasn’t met and suppressing statements? If an “exception” can be so broad, can it be called an exception at all?

And if the exception so swallows the Right, can you be said to have that Right at all?

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¹Putting aside entirely the question of whether, had he been Mirandized and then confessed, such a confession would have been voluntarily made.

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N.B. 1: If a single one of you so much as suggests that this post in any way implies that I have no sympathy for the victims of the bombings, I will track you down using thermal imaging and shove you inside a boat and leave you adrift on land.

N.B. 2: It seems that the Federal Public Defender of Massachusetts is on standby, waiting appointment. If it were Connecticut (and State court), the police would be required to inform Tsarnaev that he had legal counsel available to provide pertinent legal representation if he chose to, prior to being presented in court and appointed. It is the practice of many public defender offices in CT to fax letters to or call police departments when they know suspects are in custody and may be questioned. State v. Stoddard.

Compare and contrast

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Compare Senator Lindsey Graham, R-SC, writing about the Boston Marathon bombing suspect, who despite everything else, is an American citizen:

Lindsey-Graham-tweet-2

 

with:

The term “person,” used in the Fifth Amendment, is broad enough to include any and every human being within the jurisdiction of the republic. A resident, alien born, is entitled to the same protection under the laws that a citizen is entitled to. He owes obedience to the laws of the country in which he is domiciled, and, as a consequence, he is entitled to the equal protection of those laws. This has been decided so often that the point does not require argument. Yick Wo v. Hopkins, 118 U.S. 356, 369; Ho Ah Kow v. Nunan, 5 Sawyer, 552; Carlisle v. United States, 16 Wall. 147; In re Lee Tong, 18 Fed. Rep. 253; In re Wong Yung Quy, 6 Sawyer, 237; In re Chow Goo Pooi, 25 Fed. Rep. 77.

Wong Wing v. United States. And:

More than one student of society has expressed the view that not the least significant test of the quality of civilization is its treatment of those charged with crime, particularly with offenses which arouse the passions of a community. One of the rightful boasts of Western civilization is that the State has the burden of establishing guilt solely on the basis of evidence produced in court and under circumstances assuring an accused all the safeguards of a fair procedure. These rudimentary conditions for determining guilt are inevitably wanting if the jury which is to sit in judgment on a fellow human being comes to its task with its mind ineradicably poisoned against him. How can fallible men and women reach a disinterested verdict based exclusively on what they heard in court when, before they entered the jury box, their minds were saturated by press and radio for months preceding by matter designed to establish the guilt of the accused. A conviction so secured obviously constitutes a denial of due process of law in its most rudimentary conception.

Mr. Justice Frankfurter in Irwin v. Dowd, And finally:

The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false; for the government, within the Constitution, has all the powers granted to it, which are necessary to preserve its existence; as has been happily proved by the result of the great effort to throw off its just authority.

Mr. Justice David Davis, in Ex Parte Milligan, 4 Wall 2 (1866).

The investigative subpoena: because who needs probable cause?

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big_brother

[This is the second in a two-parter today on the State pushing the boundaries of their power and seeking to perform their law enforcement function without the constraints of the Constitution. The first post, on their desire to be free from the Fourth Amendment, is here.]

Prosecutors want the power to subpoena witnesses under threat of contempt penalty to secret proceedings without probable cause.

For many years now – maybe over a decade – the prosecutors in Connecticut have asked every session of the state legislature to “reform” the grand jury process here. By “reform” they merely mean completely revamp and retool it, giving themselves vast powers to subpoena any manner of things with minimal judicial oversight.

But first, to understand the scope of this request, we must understand that Connecticut is not an indicting grand jury state; not typically, at least. Almost all of our charging is done via the information: the grand jury indictment was abolished in the 80s. This OLR report has all the background and information you’ll ever need on the grand jury in Connecticut.

What this means is that the decision to arrest people of crimes and to charge them with crimes is made based on probable cause – that requirement enshrined in both the United States and State constitutions. Either you get an arrest warrant signed by a neutral judge, based on probable cause, or you arrest someone and then a neutral judge makes a finding that there is probable cause to believe that the person arrested committed the crime.

Out of the 50 states, only half actually use grand juries and out of those, only 22 require their use. [Here is an informative ABA article on grand juries.] Most of these grand juries investigate the commission of crimes and are composed of lay people, but some states have other types of juries like civil grand juries, which aren’t involved in the criminal investigative process.

The indicting grand jury as you imagine it – held in secret, where a ham sandwich can get indicted – was abolished precisely because it was so secretive and its ex parte nature. Several amendments to the statutes and the State Constitution established our current system. The vast majority of criminal cases are brought by employing the method I’ve described above and a very, very small class of crimes are still via grand jury:

Continue reading →

Argument Recap: Guilt by association because we’re all criminals

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The_Matrix_Reloaded_Burly_Brawl

It didn’t occur to me until earlier today, but there is a pattern here. The State has been trying for years to get great police powers at the expense of individual rights. But two things that happened in the last two days have really crystallized the extent to which they’re willing to go: 1. The absurd and frightening position staked out by the State of Connecticut at oral arguments yesterday, and; 2. Their repeated requests for vast investigative subpoena powers. I will take them up in turn.

The State of Connecticut thinks that everyone on the street is a suspect and the police should be able to detain anyone they feel like.

I wrote two days ago about the stunning argument the State is making in State v. Jeremy Kelly, where they are seeking to justify the detention of Kelly where he was only known to police officers as the guy standing next to someone they were looking for. Briefly, the police were looking for Gomez. They saw Burgos and Kelly. They thought Burgos was Gomez. They had no idea who Kelly was and were not interested in him. They ordered both men to stop. Both questioned that authority. The police repeated their commands. They both did not acquiesce and ran off. Kelly was eventually apprehended and charged with possession of cocaine.

The State argued that it did not need to show that there was any reason whatsoever to stop Kelly before making him submit to the police power of the State. The U.S. Supreme Court has said that a “brief, investigatory” stop is permitted where there is reasonable suspicion to believe that the person you are stopping has committed or is committing a crime. If you cannot show that reasonable belief, the stop violates the Fourth Amendment.

The State, though, urged the Supreme Court to adopt a ‘bright-line’ rule called the “Automatic Companion” Rule. It means essentially what you think it means: that the police should have the authority to automatically stop whomever is with someone they may think is committing a crime.

The hierarchy of standards goes something like this, from highest to lowest: beyond a reasonable doubt -> clear and convincing evidence -> preponderance of the evidence -> probable cause -> reasonable and articulable suspicion -> nothing.

So, R&AS is just a small step above nothing. It is slightly, but only just, more than a hunch. It requires that police officers put into words why they chose to stop someone as it relates to that person.

But no, this, apparently, is too difficult for the police. They want the power to stop everyone. Continue reading →

Failure to submit to government authority is evidence of a crime

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I’ve already written once this week about the really stunning arguments the State is making to completely erode Fourth Amendment protections. And now, via John Wesley Hall, I see evidence that at least one state – North Carolina again – has gone completely batshit insane when it comes to the application of the prohibition against unreasonable searches and seizures.

So where we left off in that last post was that the police need particularized suspicion that a person is committing or has committed a crime in order to stop them for investigatory purposes. What I mentioned peripherally is that this applies to motor vehicles as well (Terry v. Ohio). What I didn’t mention is that the United States Supreme Court has explicitly held that two types of detentions of motor vehicles without particularized suspicion are okay: 1) DUI checkpoints (Michigan v. Sitz) and 2) stops where the purpose is not to investigate the person stopped but general investigation and information gathering (Illinois v. Lidster).

The rationale of both these cases is that these are not unreasonable intrusions into the protections afforded by the Fourth Amendment and that the minor inconvenience suffered by motorists pales in comparison to the overriding concerns of society: preventing drunk driving and catching criminals. [The Fourth Amendment provides that all people shall be free from unreasonable searches and seizures...]

The Supreme Court did set out some rules, however, in Michigan v. Sitz (the CT case is State v. Mikolinski): that

just as the Terry standard protects an individual’s freedom from arbitrary police conduct by requiring that a seizure “be based on specific, objective facts indicating that society’s legitimate interests require the seizure of the particular individual”; id.; so does the requirement “that the seizure must be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers.” Id.

Mikolinski. See also Delaware v. Prouse. So now, on to North Carolina. In State v. Kevin Griffin [PDF], the North Carolina Supreme Court has just held that a stop of a motor vehicle is legal under the Fourth Amendment to the Constitution where the only thing the motor vehicle did was turn around near a checkpoint.

Kevin Griffin was driving down a road, saw a checkpoint, made a legal turn away from the checkpoint and then was stopped by police officers.

Their reasonable and articulable suspicion that Kevin Griffin had committed or was committing a crime? That he turned away from the checkpoint.

Q. But he just made a left turn; is that correct?

A. Onto the shoulder, yes.

Q. That’s not an illegal turn; is it?

A. A left turn is not an illegal turn.

Q. And you never gave him a moving violation for that; did you not?

A. No.

The police state is here, folks. You will do what we tell you to do, otherwise you’re a criminal. This is the logical extension of those “search me, I’ve got nothing to hide” attitudes. A completely legal act – the left turn – is now evidence of a crime. “Sure we’ll search you and if you don’t let us, we’ll use that as evidence that you, in fact, do have something to hide.”

What’s next? Refusing to talk to a police officer on the street will now be sufficient evidence that you’ve got something to hide? So would it be okay then for the police to go up to people for no reason and start asking them incriminating questions? And if you refuse, well, then, you must be guilty of something, because only guilty people refuse to co-operate with the police and submit to their authority.

When we start giving up our rights in the name of security, they keep taking those rights. And then they’ll take every last scrap of freedom you have left and then you’re left staring at decisions where a man was suspected of committing a crime solely on the basis of a perfectly legal action.

We might as well just give up the ghost on this Fourth Amendment and install surveillance cameras in our houses and cars and workplaces because what is the point of having all this freedom? Wouldn’t it just be easier to let the Government have whatever it wants, hey as long as we’re not criminals, right?

War is peace
Freedom is slavery
Ignorance is strength

Oceania has always been at war with Eastasia.