Category Archives: criminal law principles

An acquittal unlike any other

Just when you think you’ve heard it all with regards to George Zimmerman 1, you’re accosted by this…article…claiming to have uncovered stunning jury tampering in the trial. But you already know, without even reading the article, that that’s just bullshit.

I’ll leave the debunking in depth to the Windypundit, but the gist is that the jurors in the Zimmerman trial did not, in fact, look anything like the 12 Angry Men and were permitted, for two hours on the weekends, to have contact with their families, ergo there was tampering and the verdict is illegal or something.

But hidden in that catastrophe of an “expose” is the far more curiouser point. The author seems to be adamant – in the comments – that:

actually, yes, you can declare a mistrial after the verdict in cases where jury tampering is found. Florida has multiple cases of it on record and validated all the way up to the SCOTUS.

When pressed, he asserts that:

Actually yes, it can. In cases of jury tampering, the entire verdict can be thrown out and the whole case retried, per the laws of the state of Florida.


I checked the books, Florida has a statute of up to three years for such a mistrial declaration.

Of course, there’s no cite to any of this, nor is there a clarification of what “verdict” entails. Here’s a hint if you can’t wait for literally the next sentence: verdict means guilty verdict, because it is a violation of the Fifth Amendment to retry someone after an acquittal.

Nathaniel Downes, meet Justice Brennan:

Perhaps the most fundamental rule in the history of double jeopardy jurisprudence has been that “[a] verdict of acquittal. . . could not be reviewed, on error or otherwise, without putting [a defendant] twice in jeopardy, and thereby violating the Constitution.” United States v. Ball, 163 U.S. 662, 671 (1896).

And Justice Day:

As to the defendant who had been acquitted by the verdict duly returned and received, the court could take no other action than to order his discharge. The verdict of acquittal was final, and could not be reviewed, on error or otherwise, without putting him twice in jeopardy, and thereby violating the Constitution.However it may be in England, in this country a verdict of acquittal, although not followed by any judgment, is a bar to a subsequent prosecution for the same offense. United States v. Sanges, 144 U.S. 310.

There is, of course, no provision or allowance for the declaration of a mistrial after a jury’s acquittal of a defendant because of a discovery of “juror misconduct” which is nothing more than jurors acting like human beings and talking to their families.


Except that there’s Harry Aleman 2. Harry Aleman is now serving a sentence of 100-300 years in jail, after being tried and convicted of murder in the late 1990s. Harry Aleman is the subject of a very unusual ruling. You see, in May 1977, Harry Aleman was acquitted of that same murder.

And so arises the one strange instance in the last 50 years 3 where someone was successfully re-prosecuted after a prior acquittal. But to underscore how unusual and bizarre this is, the reasoning for permitting this reprosecution was that he bribed the judge to acquit him in 1977.

Yep. Straight up bribery of Judge Frank Wilson – $7,500 worth – to acquit Aleman of the charge of murder. Eventually, someone got wind of it, started a new prosecution and Aleman argued that it was prohibited by the Double Jeopardy Clause.

In what can only be described as an outcome-oriented decision, the Seventh Circuit Court of Appeals affirmed the re-prosecution, deftly arguing that since the judge was bribed, Aleman was never “in jeopardy” of conviction and thus, the Clause didn’t apply. Get it? He wasn’t in jeopardy.

The legal conclusion urged by Aleman might not be an unreasonable application of Supreme Court precedent,[6] but the highly deferential standard of collateral review leads us to hold that the contrary interpretation —the one adopted by the Illinois courts in this case — is also not unreasonable. The Illinois courts viewed the authority cited by Aleman as begging the question; the Double Jeopardy Clause may well be absolute when it applies, see Burks, 437 U.S. at 11 n. 6, 98 S.Ct. at 2147 n. 6, but determining if it applies is the real issue in this case.

Similarly, the State argues that the protections of the Double Jeopardy Clause only extend to a defendant who was once before in jeopardy of conviction on a particular criminal charge; the State contends that, by bribing Judge Wilson, Aleman created a situation in which he was never in jeopardy at his first trial. The first trial, therefore, was a sham and the acquittal there rendered has no effect for double jeopardy purposes. Under this theory, the State was free to re-indict him because he has never been in jeopardy of conviction on the Logan murder charge.

SCOTUS held its nose while denying certiorari and the rest is history, relegated to the stacks never to be cited again. Literally. No one has cited that case for that proposition in the last 16 years 4.

That’s because, as this law review article willed into existence solely by the Aleman case argues, the downsides of carving out such an exception are tremendous 5. The purpose of the Double Jeopardy Clause is that the Government gets only one opportunity to bring its might and power to bear on the individual and if the Government is unable to use that opportunity to convince 6 or 12 people that the weight of its evidence proves guilt, then they are not deserving of a second chance.

If we are to permit States to continually re-try people until they get a favorable verdict, then defendants will forever live in fear of prosecution and the burden will be too great to bear. While the State may have (comparatively) unlimited resources, no individual would be able to match it and would necessarily eventually succumb to pressure and either admit guilt or be unable to defend himself. Who is to determine that the acquittal was obtained in an illegal way? What is the standard of proof? What is to stop vindictive prosecutors from asserting, time after time, that the acquittals were products of tampering or other illegality and thus keeping the individual forever under the unyielding microscope that is the State’s attention? Convictions would be the product of tyranny and coercion rather than an adversarial testing of the evidence.

Certainly, arguing that the principles that we hold so dear should be ignored and altered because of one unfavorable and undesirable result creates a situation that undermines those rights for all of us.

You’re to blame: an excuse for courts to deny justice

The Connecticut Law Tribune has published this very important and necessary editorial, criticizing all the arms of the criminal justice system for their complicity in repeated instances of prosecutorial misconduct during closing arguments by Connecticut prosecutors.

Written in the wake of the extraordinary opinion in State v. Santiago last month, the editorial rightly questions whether prosecutors in the State are paying any attention at all to the steady stream of opinions coming from our appellate courts that deem their comments improper. The editorial also rightly questions the efficacy of such chastisement when our appellate courts also routinely renders these improprieties harmless: a sort of get out of jail free card. A wink and a nod, as the editorial calls it.

What’s to prevent a prosecutor from taking a calculated risk in crossing the line of acceptable conduct when our appellate courts on a regular basis give a wink and a nod to this kind of improper behavior? Maybe it’s time for grievances to be filed where certain kinds of misconduct, like that detailed in the Santiago case is documented.

With appellate courts reluctant to even name prosecutors, let alone find that their misconduct impacted the outcome of the case 1, with still no referrals to the grievance committee and with no financial incentive to “behave”, as it were, there really is no effective way to enforce Constitutional limits on prosecutors’ conduct and arguments.

But the editorial also rightly points the finger at the defense bar: we are just as complicit in numbing everyone to the real extent of the impropriety in these cases. While it is true that lack of an objection by defense counsel to improper argument is but one factor 2 to be considered, it is fast becoming the predominant factor.

This highlights another massive problem with the fair administration of justice that has fundamentally altered the way due process is dispensed in Connecticut that has been left untouched by this – or any other – editorial as far as I know. I’ve written about it here, though.

Our court has become extremely outcome oriented and that outcome is predominantly this: sustaining convictions obtained by trial courts and juries. In order to achieve that outcome, the Court has – with the Prosecution’s urging and prodding – made it optional and less desirable for trial judges to be the arbiters of the law and of what is admissible and what is not. It has blazed a path that absolves trial judges of any responsibility for gaps in knowledge of the procedure to govern the orderly administration of justice.

It has taken this awesome responsibility and placed it squarely on the shoulders of defense attorneys. We are the lighthouses by which the appellate courts will guide the ships to safe port. There used to be a time where trial lawyers could afford to sit back in their chairs, roll up their sleeves and “try cases from the file”, making statements that border on ineffective assistance of counsel like “I try to win at trial, not on appeal”.

Well you better win at trial now, because given the way the majority of the defense bar practices, no one is winning on appeal. Defense attorneys are complicit in not preserving objections, not objecting properly, not filing motions in limine, not filing requests to charge: in other words, every single thing that is necessary to properly preserve Constitutional and evidentiary claims of error for appellate review.

Appellate review isn’t the wide open football field that it used to be – or even should be. Rather, our appellate courts have reduced securing appellate review to jumping through flaming hoops that move unpredictably and narrow impossibly to the head of a pin.

Appellate courts repeat incessantly – in some areas of the law – that “talismanic incantations” aren’t required to invoke the protection of rights, or that to be valid, a plea canvass need not have specific utterances, but rather simply the gist of the matter.

Not so if you want to vindicate your Constitutional rights. A most specific and almost entirely accurate objection must be noted and repeated several times.

Appellate review has turned into a game of hide the ball and you’re it.

If we are to vindicate all the Constitutional rights that every citizen of this country is entitled to, then we have to start getting better at our jobs. We need to understand the game the court is playing and we need to play that game. We have to think of the long game: trial, appeal, habeas, federal habeas.

Because, for our clients, this is their life, not a game.

A fool’s competition: who can be more ignorant about the Constitution?

Yesterday, I wrote about world-renowned Slate columnist Matthew Yglesias’ nigh-moronic article on the ZImmerman trial suggesting that GZ (that’s what we call him) got lucky because he had high-paid attorneys and perhaps, just only, if he had public defenders, we’d have had “the right outcome”.

You’d think that’d be the extent of the stupidity. But someone mistakenly told Lawrence O’Donnell that it was a competition and so, on his show last night [warning: autoplay] on MSNBC, Lawrence (he goes by @Lawrence on Twitter, so I’ve taken the liberty of calling him that) decided to up the stupid ante and demonstrate that he either has forgotten about, or never heard of that thing called the Fifth Amendment.

most defendants in america are guilty, or at least are found guilty in court.

He opens with this, which is an absolutely critical distinction, but he makes no mention of it from here on out and doesn’t seem to actually understand that distinction. See if you can pick up on his theme.

when a lawyer wants to know how tough your case is, they always ask the same question. can you put your guy on the stand? and everyone understands what no means. no means your guy is guilty, very guilty, and putting him on the stand will prove that guilt beyond a reasonable doubt.

saying you can put your guy on the stand doesn’t mean he’s not guilty. it just means he might be a very good liar.

lawyers know the jury instructions will order the jury to not consider the fact that the defendant didn’t testify, but they know, the lawyers know that in a normal case jurors will hold it against the defendant. they will correctly in most cases interpret the defendant’s silence in the courtroom as an indicator of guilt.

Figured it out yet 1? No? Let’s see if Ken Popehat at Popehat can’t give you a clue. Yesterday, Ken wrote about that OG of imbecilic commentators, Nancy Grace. In a brilliant post, he solved the mystery of her and her seemingly discordant views that didn’t fit into one neat political label:

Nancy Grace’s political bent is quite recognizable to me. She’s not liberal or conservative, and no principled view of gun ownership or race or women’s rights drives her coverage. No, she’s a vigorous statist, at least with respect to criminal justice. Her political viewpoint is perfectly internally consistent. As a statist, purpose of the criminal justice system is to convict and punish to the maximum extent possible people accused by the government. To determine whether someone has committed a brutal and dastardly crime, all you need to know is whether the government has said they did. That’s why defense attorneys are worthy of contempt: they are, by definition, trying to obstruct justice. That’s why she questions and despises constitutional rights: they are mere impediments to the guilty being punished. (That view, no doubt, fueled her penchant for prosecutorial misconduct.)

As he writes further on, Nancy Grace is but the ugly personification of a viewpoint that has permeated and taken over large swathes of the American consciousness: if you are arrested, you are guilty and if you are guilty, you are, by definition evil and thus deserving of the most severe of punishments and you lose your humanity.

Now, go back and read @Lawrence’s comments again. See the theme? Lawrence makes no allowance for the ideas that: A) there are innocent reasons for not testifying; B) that the burden of proof lies entirely with the State and they must be rigorously held to that burden; C) that someone who is arrested is not guilty of the crimes with which they are charged 2.

He is but of a cloth with Nancy Grace: born of the idea that anyone who is arrested is validly arrested and, to borrow from Ken again, “to determine whether someone has committed a brutal and dastardly crime, all you need to know is whether the government has said they did.”

This is an extraordinary turn for a nation founded on quite different principles, ones that the Founders were sure to include in our organizational charter. America was not built to be statist. It was built to be skeptical of vast governmental powers and rubber stamps. It was built to protect the individual against the tyranny of the State.

The belief system that @Lawrence exhibits is anathema to the values we hold. I quote, again, my favorite quote:

Ammianus Marcellinus relates an anecdote of the Emperor Julian which illustrates the enforcement of this principle in the Roman law. Numerius, the governor of Narbonensis, was on trial before the Emperor, and, contrary to the usage in criminal cases, the trial was public. Numerius contented himself with denying his guilt, and there was not sufficient proof against him. His adversary, Delphidius, “a passionate man,” seeing that the failure of the accusation was inevitable, could not restrain himself, and exclaimed, “Oh, illustrious Cæsar! if it is sufficient to deny, what hereafter will become of the guilty?” to which Julian replied, “If it suffices to accuse, what will become of the innocent?” Rerum Gestarum, L. XVIII, c. 1.

Coffin v. United States. Consider his other comments, which are equally puzzling, if not more so:

lawyers who win controversial cases always tell us we must accept the controversial verdicts. but they’re lying. lawyers appeal jury verdicts themselves all the time specifically because they themselves do not accept verdicts that they don’t like. you do not have a civic duty to accept the wisdom of jury verdicts. the founding fathers didn’t want you to. that’s why they provided for an appeals process.

There is nothing in the law that dictates whether verdicts must be socially accepted, in that people have been – and will always be – free to disagree with verdicts. But that is quite different from defendants appealing guilty verdicts, which is what he seems to imply.

But this reverts back to the unyielding faith that @Lawrence seems to place in the system itself. The system must be correct and has to be correct because to be otherwise is too frightening a concept to comprehend. Ergo, anyone who appeals a verdict does so because he or she “doesn’t like it”. There is no no acknowledgment from him that an appeal may be necessary to vindicate the Constitution, which may have been violated during trial thanks to single-minded people like him who take for granted the purity of the State’s decision to accuse an individual of a crime.

But here’s the troubling part. While Nancy Grace is wholly internally consistent, @Lawrence, in closing, reveals some sensitivity to the plight of the oppressed that is wholly inconsistent with the foregoing.

lawyers are the only white people i actually know who have intensely felt experience with the sadness and anger of justice denied in this country. i’ve actually seen young lawyers cry in court when an unjust verdict is read. if you’ve never experienced it, if you’ve never felt yourself somehow connected to it, then you might be lucky enough not to know how painful and sad justice denied can be.

black americans have known that feeling since the time they arrived on this continent in chains. the first e-mail i got after the verdict on saturday night was from a black american mother of a 2-year-old boy. she sent this picture with just these words — “weeping with rage for my little american.”

Black Americans are routinely victims – just not the victims that @Lawrence is supporting in this diatribe. They’re victims of an overzealous system that incarcerates them at vastly disproportionate rates. They’re the victims of underfunding of defense systems that leaves them vulnerable and exposed to the behemoth that is the Government. They are victims of drug laws that target their minority status and their residential status, unnecessarily tacking on enhancer penalties. They are victims of the biased death penalty, making it more likely that they will be executed. They are victims of race.

But to people like Nancy Grace and @Lawrence, there is no nuance. People are either good or evil. Evil people get arrested and punished and good people are the rest of us. Or is it them?

Does @Lawrence weep for them when they’re victims of the system that he is so invested in? Because when that happens, they’re not called victims. They’re called defendants. And defendants are bad people that no one should weep over.

Oh hai.

Oh hai.

How to kill a man: I’d tell you but then I’d have to kill you

Warren Lee Hill, mentally retarded and thus unqualified for execution, is scheduled to be executed on Saturday. That’s because in Georgia, they just don’t want to believe someone is mentally retarded and can’t be executed, even if an inmate is given the highest (and most likely unconstitutional burden) to prove his own retardation and surpasses that.

In fact, they want to kill him so badly, that they have obtained the lethal injection drugs from an unnamed pharmacy and made that pharmacy’s identity a confidential state secret.

But that’s not all. It’s such an important state secret that the statute forbids its disclosure even under process of law. Which means that pursuant to that Georgia statute, even a court cannot force the executive to reveal the name of the pharmacy.

Stunning. The first thing I thought of when I read this was Marbury v. Madison, that most seminal of seminal cases that established the authority of the judiciary as an independent and equal branch of government: the watcher of the legislators and the arbiter of the Constitutionality of the laws.

Since then, I don’t think I have ever seen such a shocking end-run around the power of the judiciary and a denial of due process. (Except, well, you know.)

Think about this. The State wants to kill a man and they are so desperate to do it that they will make the method of that execution a state secret so one can question them about it or challenge that procedure.

And challenge they should, because the lethal injection procedure is cruel. This isn’t the first time Georgia has pulled this shit. In 2011, they illegally obtained drugs from London and were shut down when the DEA raided their drug supply. The drugs they got weren’t FDA approved and were tainted. The following are three examples, taken from Hill’s lawsuit (embedded below), which will be heard on Thursday:

Both executions that used this supply of illegally imported, compromised drugs resulted in significant pain and suffering for the individuals executed. In Brandon Rhodes’ case, his eyes remained open for the entirety of his execution,indicating that the illegally imported sodium thiopenthal used in his execution was sub-potent, leading to an “agonizing” execution for Mr. Rhode. In the case of Emmanuel Hammond, Mr. Hammond’s eyes also remained open, and appeared to be trying to communicate throughout during the first part of his execution.

In the summer of 2011, Georgia switched its protocol from a three-drug protocol using sodium thiopenthal as the first drug in that protocol to a three-drug protocol utilizing pentobarbital as the first drug in the injection cocktail. The first execution to take place with this protocol was widely reported by objective, third-party sources to have caused tremendous suffering for Mr. Blankenship, the person executed. The media reports of Mr. Blankenship’s execution note that he grimaced, appeared to gasp for air, convulsed, and like Mr.Hammond and Mr. Rhode, remained with his eyes open.

Among the pro-death penalty jurisprudence, this is one area that exhibits some humanity: we will execute people, but we will execute them humanely. So the Supreme Court said in Baze v. Rees that a lethal injection protocol can be cruel and unusual punishment. There have been challenges to the drug protocols of various states and anti-death penalty activists have pressured drug companies into not providing the lethal cocktail.

And so, afraid of not having a legal source of FDA approved drugs, the Georgia DOC turned to its legislature to suddenly making the whole thing secret and unreviewable. So the man who is to be put to use using this magic concoction has no way of knowing if the drugs are safe or if they’re going to make him convulse in agonizing pain while he may or may not die.

It’s one thing for a state to have state secrets, but as Hill’s brief points out, they all have de-classification clauses, i.e., a mechanism to make the information available to the public and the courts under the right circumstances.

Not this one:

(1) As used in this subsection, the term ‘identifying information’ means any records or information that reveals a name, residential or  business address, residential or business telephone number, day and month of birth, social security number, or professional qualifications.

(2) The identifying information of any person or entity who participates in or administers the execution of a death sentence and the identifying information of any person or entity that manufactures,supplies, compounds, or prescribes the drugs, medical supplies, or medical equipment utilized in the execution of a death sentence  shall be confidential and shall not be subject to disclosure under Article 4 of Chapter 18 of Title 50 or under judicial process. Such information shall be classified as a confidential state secret.

The press cannot get this pursuant to a Freedom of Information request and no court in Georgia or the United States can order it be revealed. If they can do it for a lethal injection protocol today, what’s next? Maybe they make the process whereby the decision to seek the death penalty is made a state secret. Why stop there? Search warrants become a state secret. Confidential witnesses are state secrets. If you see something, say something and we won’t tell anyone that you told. Do you have a chill running down your spine yet?

If they’re that desperate to keep something secret, doesn’t it make you wonder what they’re hiding? And do you have any trust left in Government? How do you know there isn’t a secret law gunning for you? How could you?

This isn’t even taking into account the madness of executing him despite his mental retardation and the absurd standard imposed by Georgia in the wake of Atkins v. Virginia and SCOTUS’ failure to act on his petition that’s pending before it.

Breaking news: things cost money

In a sure to be groundbreaking series of articles, the Hartford Courant’s Jon Lender has discovered that the business of government – the every day practice of running a State – costs money.

This heretofore undiscovered concept works in this way: people work for the State. They get paid. Shocking and novel, I know. I wonder what the repercussions for society will be? I shudder to think of the fallout from this breathtaking expose that you know, people like to get paid for the work that they do.

Take his latest revelation, for example: that lawyers hired to defend death row inmates were paid money. Ingrates, right? Bastards should work free for the honor or something.

We need to talk: the fourth, the Fourth and an unrecognizable land

This is a Fourth of July post, for which it is a bit too late, and this is a Fourth Amendment post, for which it is far too late.

Let me ask you: what sort of a government do you want? No. Scratch that. More basic. What sort of society do you want? Do you want a society where there are rules and laws and everyone, including you, has to abide by them? Of course. Do you want a society in which people are punished for transgressions of those laws? Most would say yes.

Well, who is to decide whether a person has broken that law? We have opted for the public prosecution system, where an appointed or selected individual or individuals take on the function of representing the interests of our collective society. it’s a fair system; designed in some part perhaps to minimize the possibility of individual vendettas.

But that system would perform that minimization role only if the agents of the collective were to exercise their individual authority and judgment in the pursuit of what is right and what is wrong and not just the chase of convictions – but that’s a story perhaps best left for another day.

So having established this system; having vested these enormous powers in our fellow citizens, do we wish to impose any checks on them? Do you have faith that these people perform their jobs in an admirable and honest manner? If so, why? Do you personally check on their performance? Is it measured to any standard for you? Or have you given then unfettered powers – carte blanche, so to speak. “If you do it in the name of Justice; your powers are limitless.”

Certainly, even the most Law & Order amongst you would argue that we can take a hands off approach to the daily machinery of the Justice system precisely because we have these rules in place: rules that not only govern our individual conduct in relation to one another – penal laws, for instance – but also how the Government must behave before it is allowed to take away one’s Liberty – that other ideal worthy of a capital letter.

So there is an interplay, most would agree, between Justice and Liberty. And most of you would point to those rules, those Constitutional technicalities as ensuring that the system is worthy of your continuing faith and disregard. We have the best Constitution in the world, and the best system in the world, ergo, everything must be operating as it should.

So would you like the Government to be able to enter your home, just to look around? What if the police officer you passed on the road flagged you over and wanted to look inside your car, just because? Certainly, most Red Blooded Americans would have a strong visceral reaction to that. Why? Perhaps because it’s enshrined in our Constitution. The Founders had the good sense to include, in very strong language, such a prohibition:

“One of the most potent grievances that led the colonists to declare independence 237 years ago was the practice of British officials conducting door-to-door, person-to-person ‘general’ searches,” IU Maurer School of Law Distinguished Professor Fred H. Cate said.

Because they knew and  because they suffered. Because those who have the power, have power over us that don’t. Can you physically resist an armed officer entering your house to search because he feels like it? No, of course not. What stops them? The need for a warrant.

Why? Because we have these rules. The rules that say:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

“The People”. That’s you. And your mother and your sister and your babysitter and your neighbor down the street and your boss. And me.

It is a right that you and I have. To be secure from warrantless searches and seizures. And the warrants must be particular.

Because we don’t want witchhunts. We don’t want blanket searches of anyone who we decide is undesirable.

But apparently we’ve forgotten the lessons of the past. We’ve forgotten that this Government – any Government – has the tendency to oppress those who are not like them. We have forgotten that at one time, a large percentage of the human beings in this country weren’t considered human. We’ve forgotten that until very recently our very same federal government didn’t recognize the rights of our brothers and sisters to marry whom they wanted. We’ve forgotten that in the last century, it was illegal and punishable by jail. We’ve forgotten that the world went to war to prevent the persecution and oppression of the “other”.

We’ve forgotten that parts of the world, until recently, lived under a surveillance state. States that we, the United States, sought to end. States that had far less surveillance powers than we now do:

East Germany’s Stasi has long been considered the standard of police state surveillance during the Cold War years, a monitoring regime so vile and so intrusive that agents even noted when their subjects were overheard engaging in sexual intercourse.

Even Schmidt, 73, who headed one of the more infamous departments in the infamous Stasi, called himself appalled. The dark side to gathering such a broad, seemingly untargeted, amount of information is obvious, he said.  “It is the height of naivete to think that once collected this information won’t be used,” he said. “This is the nature of secret government organizations. The only way to protect the people’s privacy is not to allow the government to collect their information in the first place.”


The reaction to Snowden is saddening. People are lining up to freely hand over their information to the Government. Is it because we’re desensitized? Or because we truly don’t understand that this cocoon of protection you think you have around you, this “other-ness” (I’m not those people, i.e. a criminal) is tenuous at best and imaginary at worst.

Ask yourself this: if PRISM is so useful, then why limit its use to “terrorism”? Make a difference to you now? What if your “metadata” is used to track what time you leave home, where you go, what time you come home and where you stopped for how long. What if it’s used to track your purchases online or your downloading of the latest single from a less than legitimate site? What if it’s used to figure out that you smoke marijuana recreationally? What if it’s used to monitor your speeds on national highways and send you tickets in the mail automatically? Where will it end?

Have you given the Government permission to do any of this? Would you? How quickly do you foresee yourself going from average citizen to criminal. And you know what happens to criminals, right? You’ve carried the pitchforks yourself.

The measure of a society is in how it treats its most vulnerable.

What does that mean. Have you ever thought about it? Today, you are in the majority and the majority cares about its rights. What happens tomorrow, when you are no longer in the majority and now your interests and rights are different than those in power? Will you acquiesce as easily as those you imposed yourself on?

Who will stand up for you? Why would anyone?

Compare and contrast this quote of Thomas Jefferson:

Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.–Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government.

with this from Dianne Feinstein, doyen of intelligence in the Senate:

“I feel I have an obligation to do everything I can to keep this country safe,” Feinstein told The New York Times. “So put that in your pipe and smoke it.”

Eloquent and telling. She’s telling you that she doesn’t care about your rights. That she has made the decision for you, that your Safety (another capital letter word) is more important than your Liberty.

And then, when that National Safety Threat doesn’t materialize – or it does but the intelligence is useless – and the Government is sitting on mountains of data about you, what makes you think it won’t go looking, just to see what’s there, because maybe, just maybe, the definition of “terrorism” isn’t what it used to be:

In more than a dozen classified rulings, the nation’s surveillance court has created a secret body of law giving the National Security Agency the power to amass vast collections of data on Americans while pursuing not only terrorism suspects, but also people possibly involved in nuclear proliferation, espionage and cyberattacks, officials say.

The rulings, some nearly 100 pages long, reveal that the court has taken on a much more expansive role by regularly assessing broad constitutional questions and establishing important judicial precedents, with almost no public scrutiny, according to current and former officials familiar with the court’s classified decisions.

And by turning a blind eye, by not caring, you’re giving up the right to ever be invited to the table to discuss this. Your rights and protections are now in the hands of secret courts.

Quis custodiet ipsos custodes?

Who will guard the guards? You didn’t use to be like this. This was a country that cared, before “soft on crime” ruined our youth, our cities and our wallets.

Remember, too, the fight against the death penalty, and the days when the left was on the front lines to join most of the civilized world by doing away with it. Justices William Brennan and Thurgood Marshall and ultimately Harry Blackmun and John Paul Stevens, judicial heroes of the left, eventually refused even to consider the legal arguments in individual cases because time had proved again and irrefutably that the “machinery of death” could not be, and was not, administered justly. Can anyone credibly claim that this machinery is more just today? It is not. DNA exonerations in the triple digits should make us worry deeply about executing innocent people. And most defendants singled out for the death penalty don’t get the high-quality lawyers they need. But then came Willie Horton, and victims insisting they had rights too, and suddenly being for the rights of the accused and against capital punishment could get you labeled weak on crime, and that was political suicide.

I am reminded at this time of another quote, one that you may be familiar with:

Give me your tired, your poor, Your huddled masses yearning to breathe free, The wretched refuse of your teeming shore. Send these, the homeless, tempest-tost to me, I lift my lamp beside the golden door!”

A land for the downtrodden, for the oppressed, of second chances. A land unrecognizable today. Might as well replace that inscription with the more terse and apt: “I got mine, you can just fuck right off.”

Silence as guilt and the silent death of the Fifth Amendment

Consider the following scenario: you’re walking down the street to your favorite microbrewery when a police officer stops you. “Excuse me”, she says. “Do you live around here?” “Yes, yes I do.” “Have you heard seen any strange people hanging around here?” she follows up. “No, not really.” Maybe you have your hands in your pocket; maybe you’re wearing a hoodie; maybe you’re a minority. “Did you break into that apartment there and steal a TV?” she asks, accusingly.

Now, maybe you’re a smart person, or maybe you’ve read this blog or many like it, or maybe you’ve had a brush or two with the justice system before and something somewhere in the recesses of your brain says to you “Don’t answer that! You don’t have to say anything! Walk away!”.

It’s been drilled into you: “You have the right to remain silent. Anything you say can and will be used against you”. It’s a phrase that’s spawned an empire and will keep Dick Wolf’s family from having to work for about two centuries.

So you remain silent. You walk away. She doesn’t like that. She arrests you. You go to trial because you’re innocent. And then the prosecutor asks the officer about that incident. She says you went silent all of a sudden when asked the incriminating question. Maybe she says you shifted your feet, or averted your gaze. Then the prosecutor argues to the jury – the 6 people that will decide whether you keep your liberty or lose it – that only guilty people avoid answering incriminating questions.

If you have nothing to hide, you won’t hide anything.

It’s pretty clear that post-arrest silence cannot be commented on – because really, why even have the right if you’re going to allow that, but yesterday, the Supreme Court of the United States ruled that [PDF] pre-arrest silence can be equated to guilt.

That means, if you’re questioned by a police officer, before being arrested, and you refuse to answer a question, that silence is proof that you’re guilty.

Because, see, it’s not that you don’t have a right to be silent – we don’t know that for sure – but you have to explicitly invoke that right. Meaning you have to say it out loud.

“Sorry officer, but I refuse to answer your question.”

You know what I call that? A technicality. A technicality that has now erased a whole lot more of what was written into the Fifth Amendment for your protection.

So why this line? Isn’t the “Miranda” warning prophylactic, as we were just told? Isn’t that merely an “advisement” of an already existing right?

So do I have the privilege against self-incrimination or not? Does it matter if I’m arrested or not? Should it? I’m either incriminating myself or I’m not. Does my custodial status matter?

Orin Kerr, writing at Volokh, asks two questions:

Finally, I have two major questions about how Salinas is supposed to work in practice. The first question is obvious: How clear an invocation of the Fifth Amendment right does it need to be?

Second, and perhaps more interestingly, it’s unclear to me what is supposed to happen when a suspect outside of custody clearly asserts his Fifth Amendment privilege.

You really should read his entire post – and this one by fellow blawger bmaz, and this one at Cato and this one by Bobby G. F. – but I can answer that second one easily: what’s supposed to happen is that law enforcement respects the existence and invocation of those rights and stops questioning.

But that’s not going to happen. What’s going to happen is that they’re not going to advise anyone of these rights. They’re going to “manufacture” scenarios so as to elicit silences and then use those silences to form the basis for probable cause to arrest people. Can’t you just imagine that officer who says that “based on his training and experience”, “innocent people don’t make furtive gestures” and since you did and then “stared silently, with a guilty expression, at the floor”, there is probable cause to believe that you are, in fact, guilty?

I don’t trust them to not abuse this to arrest individuals they don’t have much else on, in an effort to get them into a custodial setting in a police department to further “question” them.

If silence is guilt, then is that enough for probable cause?

When a silence is as good as an admission, does it really matter how you question someone or what you ask them?

The State has already argued that it should have the authority to detain – and that’s a legal term meaning you’re not free to go – anyone on the street for no reason whatsoever. Now they can ask you questions and if you silently walk away, they get to claim you’re guilty because of that?

Do you feel the grip tightening? Do you feel trapped yet?

Perhaps it is easy for you to say – as it is for the august Justices of the Supreme Court – that only a guilty person would refuse to answer incriminating questions or speak up about their rights. But have you ever witnessed an “interrogation”? There’s a reason why false confessions is a growing area of social science study. And what of those with limited mental abilities, or language barriers?

The Constitution is not dependent upon your level of confidence or your proficiency in English. It exists, as it always has, as a document that has executed. It’s rights have been conferred and now we’re giving the exercise of those rights back to the control of the constabulary.

When those with power decide who gets what protection, eventually, no one gets any.

This is what blind deference to establishment in the name of safety has wrought.

But don’t keep silent about it; I might think you’re guilty.