How to keep your liberty intact at DUI checkpoints – one man’s theory

An attorney in Florida – and former candidate for NY Governor – has posted his method for avoiding getting arrested at DUI checkpoints (which are legal). It’s called the “talk to the hand coz the face don’t wanna talk no mo” method.

Essentially, he says to hang a clear plastic holder over the side of the window with all the pertinent information in it.

Attached to the door is a flyer that Redlich says spells out his rights: I WILL REMAIN SILENT/I WANT MY LAWYER/NO SEARCHES, it begins. The flyer also contains his valid registration and insurance information along with a clear pocket for his driver’s license.

Redlich says it is important not to open the window, because then the police can say they smell alcohol or drugs. He also says it’s important to remain silent, because otherwise the police can claim your speech is slurred. Even if you’re innocent, Redlich says, it makes it more difficult for an attorney to mount a defense at a trial.

He also made a video to explain to those of you who might be drunk while reading this:

He has a website where you can download flyers for your own state – they’re state specific – and try this at your own risk. I present this merely for entertainment purposes. If you want to try it that’s on you. You may end up getting arrested anyway. Remember, if you do get arrested, demand a lawyer.


Beyond a Reasonable Doubt 2: Reason Harder

A couple of weeks ago, I wrote this post attempting to make sense out of the incomprehensible landscape of reasonable doubt and the different ways in which judges define – or refuse to – those terms to jurors. I wanted to make a new instruction that would be easy to follow and correct and accurate. Based on conversations in the comments and in emails I received, I decided to come up with a second new instruction. Both are reproduced below and I want to hear from you guys. Is one better than the other? Can either be further tweaked?

The Hans Gruber instruction:

The State has the burden of proving the defendant’s guilt beyond a reasonable doubt1. Beyond a reasonable doubt is how convincing the evidence has to be to you in order to find an accused guilty of a crime. So what does “beyond a reasonable doubt” mean?

What it means is this: The evidence must fully and firmly convince2 you of the defendant’s guilt before you may return a verdict of guilty.The evidence must cause your state of mind to be such that you can confidently say that you are certain of the defendant’s guilt. Although the State does not have to prove the defendant’s guilt to an absolute or mathematical certainty, the State must prove his guilt to a state of near certitude3 in your own minds. In other words, while the law does not require the State to prove a defendant guilty beyond all possible doubt, it is not sufficient to prove that the defendant is possibly or probably guilty4.

After considering all of the evidence, you may be fully and firmly convinced that the defendant is guilty of the crime charged. On the other hand, based on the evidence or lack of evidence, you may think there is a realistic possibility that he is not guilty. This realistic possibility must be based on the evidence or lack of evidence and not arising from mere possibility, bare imagination, or fanciful conjecture5.

Thus, if you are fully and firmly convinced of the defendant’s guilt, you must return a verdict of guilty. If you find that there is a realistic possibility that he is not guilty, the law demands that you return a verdict of not guilty.

The Colonel Stuart6 instruction:

Remember that every person is presumed not guilty when arrested. This presumption and status of being not guilty can only be overturned if the evidence presented creates a high degree of certainty by firmly convincing you that the correct person has been arrested [has committed?] for the correct crime. The high degree of certainty is not mathematical absolute certainty but it is also not a possibility, or a probability, or a likelihood that the accused is guilty. What prevents a juror from being firmly convinced to a high degree of certainty is what we call a reasonable doubt. If you have a realistic doubt, you cannot overturn the presumption that the accused is not guilty and you must vote accordingly.A realistic doubt can form based on the evidence presented in court or evidence that could have or should have been presented by the prosecution but was not.

Thus, only if you are firmly convinced to a high degree of certainty that the accused did, in fact, commit the charged crimes, can you overturn the status of being not guilty. If you do not reach that level of certainty, you must keep that status of not guilty in place and render a verdict accordingly.

Let ‘er rip, and just because:

Who is a reasonable man?

The law is so very concerned with reason and reasonableness. The Fourth Amendment doesn’t apply if a search is “reasonable”. Actions of parties suing others are judged by what a “reasonable person” would do. Prosecutions have to be proven beyond a “reasonable” doubt.

If you read my post on the latter, you will no doubt have learned that “reasonable”, in the law, is an undefinable term. When you tell a person that “reasonable doubt” means “doubt for which you can assign a reason”, you are telling them the same thing, just backwards and it does nothing to further illuminate this elusive meaning.

The application of reasonableness in Fourth Amendment law is gaining traction in recent years and this demands that we ask the question: who on the Supreme Court is reasonable? Cristian Farias, writing at Slate, points out that when the Chief Justice of the Supreme Court of the United States has never, ever, ever in his life been so much as pulled over by a cop for the measliest of traffic violations, how will he be qualified to decide if a police officer unreasonably lengthened an encounter in order to expand an illegal search?

The apparent confusion in the courtroom was useful in one respect: It illuminated the cluelessness of Chief Justice John Roberts when it comes to traffic stops. Addressing the lawyer who was representing Dennys Rodriguez, the petitioner in the case, Roberts said, “Usually, people have told me, when you’re stopped, the officer says, ‘License and registration.’ ”

This lack of experience with something so frequent and routine as a traffic stop has already affected the way he has ruled in other car search cases:

Though ignorance of the law is no excuse for an average citizen under any circumstance, the Supreme Court decided [PDF] that it is a valid excuse for an officer who suspects you may be committing some offense, even if the offense is not on the books.

“To be reasonable is not to be perfect,” Roberts wrote, “and so the Fourth Amendment allows for some mistakes on the part of government officials, giving them fair leeway for enforcing the law in the community’s protection.”

Roberts’ phraseology about “fair leeway” is lofty, but it turned the meaning of the Fourth Amendment on its head, confounding its role as community protection by the government rather than from the government. And “reasonableness,” at least in the context of policing, has taken on a life of its own at the Supreme Court—leading one scholar to note that its invocation is merely a cover for the court’s “own values regarding the need for the particular police practice at issue.”

Scott Greenfield, following up on a conversation Cristian had with Orin Kerr, fabled lawprof and Fourth Amendment scholar, answers the question: what experience, then, is necessary? In order to decide a ruling in a murder case, judges need not be murderers.

What experience does Chief Justice Roberts bring to our table? From government lawyer to judge, it’s not the experience that the rest of us have, yet this informs his sense of reasonableness. If we were all Supreme Court justices, maybe this would suffice, but we’re not.

There may be no perfect experience for a justice to possess to decide every case before him, but it’s fair to say his experience ought to be better than the experience of watching reruns of CHiPs or Adam 12.  It’s hardly unreasonable to expect some real-world experience from the folks who will decide that our lives are expendable. After all, it’s our time, our lives, at stake here, and the person who will tell us what’s reasonable ought to have a clue how it affects us.

The greatest complaint among defense lawyers when it comes to the appointment of judges has been that politicians routinely nominate those who’ve never worked a day in the real world, instead picking among life-long law professors or government policy lawyers. Those who operate in a world entirely unlike the one whose interactions they will have to adjudicate. The universe from which judges are selected is one where there is little diversity of background and life experience and that background comprises only a small percentage of that of the American population as a whole.

Meanwhile, judges are quite quick to assume certain truths about the difficulties of policing in America and the dangers faced by officers. Their opinions seem to place great weight on ensuring that officer safety is protected and that their decisions enhance the crime solving function instead of hindering it. In other words, they come from a rather strong law-and-order perspective. Their assumptions seem to be that police are almost always in the right and that any interaction that a lay person has with law enforcement is the subject’s fault and tinged with some indicia of guilt.

I’ve written before why it’s easy for people in their position to feel that way and how powerful and addictive a drug living in a cocoon of moral superiority and ignorance is.

If I were to come to your house and tell you what a reasonable temperature is for cooking a steak, would you listen to me, knowing full well that I’ve never eaten, much less cooked steak in my life?

Why should we, then, trust Justice Roberts to tell us whether it is reasonable for a police officer to detain me for 5 or 10 or 20 minutes on the side of the road, while that number just happens to correspond to however long it takes a drug sniffing dog to arrive to ferret out the drugs in my car?

To me, that sounds completely unreasonable.

Judge O’Toole’s quest to make the Constitution a legal fiction

[This is my latest column for the CT Law Tribune.]

[Update: The First Circuit has granted a hearing on the motion for change of venue. I think it’s a sham. Read why here.]

Both the Federal Constitution and the state constitution provide every person with several rights when it comes to the kind of trial that he or she deserves: there is a right to a public trial, a right to a fair trial and a right to a trial by an impartial jury.

At the same time, the public and the press have a First Amendment right of access to courts and to trials. These rights combine to form a “presumption of openness”. A judge may close a courtroom to some or all people only under the very strictest of circumstances, after giving all parties an opportunity to be heard and only in the least restrictive way possible.

The core value of this right to a public trial is to provide for public monitoring of the judicial process through open court proceedings and records because this public monitoring enhances confidence in the judicial system by ensuring that justice is administered equitably and in accordance with established procedures. This “bright light cast upon the judicial process” by public observation diminishes the possibilities for injustice, incompetence, perjury and fraud. And of course, this openness is designed to give the public a better understanding of the criminal justice system.

Welcome to America. Buy one visa and get one police brutality FREE!

Welcome to America, where not speaking English is a curbstomping offense; where any darker skinned individual peacefully walking down the street is a suspect and any cop who asks questions in English, is told “no English”, is too stupid to put two and two together.

Granted, this is Alabama, but by God we are becoming a parody of ourselves: brutish dumb oafs who are outwardly and secretly racist and xenophobic, sitting in our oversized chairs because they’re the only ones that will accommodate our obese bodies, wearing tin foil hats and rocking bath and forth fervently while listening to the crazed ravings of Fox News.

Two videos of the incident later released by Madison police include both audio of the officers involved, and visuals of the exchange. In one video, a pair of officers approach Patel and ask him where he’s headed, what his address is, and request to see his ID. One officer says, “he’s saying ‘no English.’ ”

The second officer continues to ask Patel questions, including “are you looking at houses and stuff?”  Sureshbhai Patel said he tried to tell the officers that he doesn’t speak English by saying “No English. Indian. Walking,” according to the lawsuit. He says he repeated his son’s house number and pointed toward the residence.

Apparently basic instructions and hand signals aren’t good enough for these this Stone Age Alabama cop, so he decides to give Mr. Patel a quick introduction to the curb. Trouble is, this results in Mr. Patel having severe spine and neck injuries and becoming paralyzed.

In a what-should-be-by-now-not-so-surprising-move, prior to the release of the videos, the police were pushing the narrative of a call of a suspicious 30yr dark skinned male walking up and down the street looking at houses and into garages:

The department also released portions of audio and video pertaining to the incident. In a non-emergency call to police, a neighbor described Patel as a “skinny black guy” and said that he’d “never seen him before” in the neighborhood. Patel, he said, was “just wandering around” and “walking close to the garage.” The caller added that he was following Patel at a distance. When asked to estimate his age, the caller guessed Patel was in his 30?s.

The neighbor also told the police dispatcher he was “nervous” leaving his wife because of Patel’s presence in the neighborhood.

Since none of that has been substantiated – the actions, not the call – the narrative has now turned to the only one that it should have been since the beginning: a profound apology, the firing of the officer and a warrant for his arrest.

Great. What about Mr. Patel and the hundreds of people like him who get subject to the psychotic wrath of Officer Friendly? Are their broken spines and shotgun shell riddled faces and their lost lives worth only an apology? If you’ve got such an itchy trigger finger then you probably shouldn’t be a cop. If you see handcuffing and slamming to the concrete a 50+ year old frail man as the only solution to a “stranger walking on the sidewalk” scenario, then perhaps you shouldn’t be a cop. If, if, if.

Maybe it’s time we start questioning how we hire these cops and maybe the burden has shifted to assuming they’re all unstable psychotic bullies.


Tsarnaev: a hearing in futility and the neverending charade


Just when you thought that the window-into-the-criminal-justice-system’s-foibles that the Tsarnaev case couldn’t get any window-into-the-criminal-justice-system’s-foibles-ier, the First Circuit ups and practically shoves an opinion in our faces that screams “CHARADE! CAN YOU SEE IT? THIS IS A SCAM!”

You might remember from my earlier posts that after being denied a change of venue three times, Tsarnaev filed a second Writ of Mandamus in the 1st Circuit, asking them to stay jury selection and move the trial to another jurisdiction. The 1st Circuit finally ruled [PDF]. The headlines will be: “First Circuit grants argument in venue change!”

The reality is that they’ve already told you how they’re going to rule.

In addition to the Second Petition, three motions are pending before this court. First, petitioner seeks a stay of jury selection in the district court, which the government has opposed. Petitioner’s motion to stay is denied as without merit by two judges of this court.

The First Circuit will listen to arguments on whether the jury selection and the whole trial should be moved to another jurisdiction one week from today but they won’t stop jury selection until then. We don’t know how many jurors will be questioned between now and then and if enough will be accepted to seat a whole jury.

Do you really think that next week, the First Circuit is suddenly going to say that, yes, of course, the trial should be moved? Absolutely no chance at all of that happening1.

So why are they granting a hearing in the first place? It seems because they have to:

Our concurring and dissenting colleague has requested oral argument and argument may be granted at the request of a single judge. Accordingly, we will hear argument on the Second Petition on February 19, 2015, at 10:00 a.m.

The panel that issued this order consists of three judges. Out of the three, only one would have granted the stay of jury selection and only one wants to hear oral argument on whether the case should be moved. The lone dissenting judge is Juan Torruella, all of 81 years and a Reagan appointee. He makes the rather obvious point that if a hearing is to be conducted next week on whether the case should be moved elsewhere, then wouldn’t it make sense to halt jury selection until then?

So how do you think the other two will vote come next Thursday? I don’t think Judge O’Toole is worried.

Then there’s also the charade of dancing around the very heart of the matter that’s at the core of this motion for change of venue. Both parties are not allowed to reference items that are sealed below. This means that they cannot reference, in open court, the responses of jurors to questions or to the questionnaire that call into question the ability of Tsarnaev to have a fair trial in Boston.

Judge Torruella again:

Second, while I agree with the order as to the time, place, and length of the hearing, as well as the briefing schedule, I disagree with the restrictions placed upon it by virtue of the sealing order. It will be quite an interesting hearing since the parties will be forbidden from discussing the details of facts directly at the heart of the issue presented: whether the answers given during the jury selection process have demonstrated that the jury pool is so tainted and prejudiced that it is impossible for the Defendant to receive a fair trial.

At 81, he’s no fool. He sees this for what it is: a pro-forma hearing with a foregone conclusion. The First Circuit seems to have made up its mind: this trial will happen in Boston, regardless of how fair the jurors are and at the exclusion of the press and the public if need be.

This is justice in America. Some have called it a Kangaroo Court. I call it Thursday.

OT: Tweepleball


After years of being in Blonde Justice’s blawgers baseball fantasy league and then years of not having one, I’ve got a hankerin’ for some fantasy baseball this year. It’s been far too long. So, I’ve started a H2H weekly points league over at Yahoo if you’re interested. This is for those who are serious, and are friends on Twitter or other social media type things (hence the Tweepleball).

If you’re interested and want in, mention me on Twitter or leave a comment here.