A system for you and a system for them

I think it should be pretty obvious by now that there are two justice systems in America: one for the rich white folk and the brothers in blue and one for the rest of us shmucks. You don’t normally see it in action as early on as the arrest, though, because it’s hard to convincingly argue that “if my client were white and middle-class his bond would be $20,000 non-surety but since he’s black it’s $100,00 cash only”.

Except when something like this happens:

Early Saturday, [Flathead County Deputy Attorney Kenneth “Rusty”] Park was the recipient of an unusual after-midnight hearing that allowed him to be released from custody without spending Saturday and Sunday in jail, as is the norm for Friday night arrests.

Park, whose fault isn’t that he got into a bit of a domestic with his girlfriend – shit happens and that doesn’t mean he’s necessarily a bad person – but that a judge showed up past midnight to give him a bond hearing. On a Friday night.

See, you don’t understand. This is unheard of. This never happens. Ever. You’re arrested on Friday? You’re stuck until Monday. Too bad. That’s why Monday mornings are terrible in arraignment courts because you’ve got the clients who’ve been cooped up all weekend, arrested on minor charges that the police saw fit to set high bonds for, who’re upset, angry, whose families have no clue where they are and who are wearing the same ratty, stinky clothes they were in on Friday night.

Not Park.

The result of that hearing was that Park was released on his own recognizance and did not have to sit in jail over the weekend until one of the justices was available during their regular hours Monday morning.

If I were a local attorney there, I’d be furious. A prosecutor accused of hitting his girlfriend is important enough to get a judge roused out of bed and into the local lockup to let him set Park’s bond to a promise to appear? And my client? Rot in jail until Monday and then we’ll see what’s proportional. Maybe $50,000 cash. Because you’re a bad person.

“If it was you or myself or any client I’ve ever represented, they would never, never, ever be allowed out till Monday,” [local attorney Jason] Bryan said. “He’s entitled to due process and how everything works out, but he shouldn’t be receiving any favors just because he’s a deputy county attorney. If anything, he should be held to a higher standard.”

Not Park.

What do you think is going to happen when word of this spreads? Why shouldn’t every single other person arrested in that county demand a hearing at midnight so they don’t have to sit in jail over the weekend, wiling away their liberty over baseless charges like Park’s? Why is their due process and justice different than Park’s?

I’m not saying Park should be forced to sit in jail for the weekend; heck, I wouldn’t want to. But am I entitled to special treatment? Or is the treatment that Park received – a fair, timely hearing that set bond at a level that is actually commensurate with the allegation – the treatment that every defendant should receive? Shouldn’t the justice system should have only one set of rules.

Because if we start making different rules for different people based on who they are and what they do and what they look like, we’ll end up with..well, what we have right now. And that ain’t too hot, is it?

You WILL comply; you WILL submit

You thought I was kidding when I rang the alarm bells after that N.C. Supreme Court decision holding that the fact that someone turns away from a roadblock is evidence of a crime, didn’t you? Well the disease has now spread to Georgia. Try reading that article without your mouth going agape. It’s not physically possible. Welcome to Soviet America. Side note: Operation Thunder Stop? What the fuck does that even mean?

The Cost of Tsarnaev: the inexorable march toward totalitarianism

I'm just a man with a bag. Blog? Blag?

I’m just a man with a bag. Blog? Blag?

Consider:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, [...]; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; [...].

Fifth Amendment to the Constitution of the United States; and add to it:

The circumstances surrounding in-custody interrogation can operate very quickly to overbear the will of one merely made aware of his privilege by his interrogators. Therefore, the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege under the system we delineate today. Our aim is to assure that the individual’s right to choose between silence and speech remains unfettered throughout the interrogation process.

If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked. If the individual states that he wants an attorney, the interrogation must cease until an attorney is present.

Miranda v. Arizona, while leads to:

We now hold that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.

Edwards v. Arizona (why is it always Arizona?) and explain how we come to:

Tsarnaev had been responding to the interagency High Value Detainee Interrogation Group, including admitting his role in the bombing, authorities said. A senior congressional aide said Tsarnaev had asked several times for a lawyer, but that request was ignored since he was being questioned under the public safety exemption to the Miranda rule.

L.A. Times, 4/25/13.

Tsarnaev, a citizen of These United States, “asked” for a lawyer. His lawyer. His right to a lawyer under the Fifth Amendment to the Constitution of the United States of America as explained by Miranda v. Arizona and Edwards v. Arizona. Your right to a lawyer. My right to a lawyer. A right. Not a request, not a variance, not an indulgence. A Right. Fundamental Right in the Pursuit of Life, Liberty and Justice and the American Dream. An inimical right. A right that cannot be taken away without amending the Constitution by approval from 75% of these united States.

And yet. And yet. That Right was ignored. Because we don’t like the guy asserting the right. Good thing we’re all in the law’s good graces. Good thing we’ve never done anything the law didn’t like.

The putative explanation – the “public safety exemption (note how it’s no longer an exception, but an exemption) to the Miranda rule”, which as has been covered here there and everywhere, is not exactly applicable.

But even if it were applicable, as explained here, there and everywhere, it is an exception to telling someone of their rights. It cannot make that right disappear. The Quarles exception says “we don’t have to tell you of your rights”, but those rights still exist. As far as I know, there’s no 48 hour exception to the existence of the Constitution. But I’ve been wrong before.

They exist because they are there. They are in the Constitution and the the last time I checked the Constitution couldn’t be amended by Executive Fiat. And just because Eric Holder says they can be, doesn’t make it true.

The outrage emanating from every corner of this great nation should be deafening. We should be pounding down the doors of our elected representatives, demanding that they pledge never to so abuse our rights again. Because if we don’t today, tomorrow they’ll take away more. If today, it’s okay to pretend like my right to counsel doesn’t exist, then maybe tomorrow my right to free speech doesn’t exist. Maybe tomorrow the government will have license to spy on me wherever I go, without my permission; reading my text messages and my e-mails because terrorism. Maybe tomorrow a high profile, well-respected and intelligent Federal Circuit Court of Appeals judge will suggest that we give up a little more privacy for perhaps a little more security. Maybe. Oh wait. That’s not tomorrow. That’s today:

I am not suggesting that privacy laws be repealed. I don’t think that they do much harm, and they do some good, as just indicated. But I don’t think they serve the public interest as well as civil libertarians contend, and so I don’t think that such laws confer social benefits comparable to those of methods of surveillance that are effective against criminal and especially terrorist assaults.

More than effective: indispensable. How much more havoc might the two Boston Marathon bombers have wreaked had they remained unidentified for weeks? The critics of surveillance cameras invoke the specter of the telescreen, a two-way television that thus operates as a surveillance camera, which figures in George Orwell’s great novel “Nineteen Eighty-Four.”

But the critics miss two important distinctions. The first is that the telescreen is inside people’s homes — in every room, and monitored by state security personnel (“Big Brother is watching you”). The second distinction is that the nation in Orwell’s novel — “Airstrip One” (actually England) — is a Soviet-style totalitarian dictatorship. (Coincidentally, England today apparently has more surveillance cameras than any other nation, some 4 million.)

Our government is not totalitarian, and surveillance cameras, when indoors (in retail stores for example), are generally invited and controlled by the owner of the premises. The surveillance cameras installed by the government are, by and large, in public areas, mainly streets, where privacy is anyway limited by the fact that one is visible and audible to other people.

I will politely decline Judge Richard Posner’s invitation to build a Panopticon. For a man purportedly so intelligent, Judge Posner’s arguments are presented as so naive and optimistic and thus terribly dangerous. Remember, Oceania has always been at war with Eastasia. Posner, who is not to be confused with – and I was hoping more intelligent than – Eric Posner, is a famed judge who has taken to embedding pictures into his judicial opinions. But, via Glenn Greenwald, I’d like to introduce him to Thomas Paine:

“He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself.”

And of course, John Adams in his infamous defense of the British soldiers. We must be extra vigilant in times like, in the face of gentle nudges in the opposite direction by learned people like Judge Richard Posner (or even the barbaric ham fisted grunts of the ilk of Rep. Louie Gohmert).

I’ll let Greenwald close:

This is not a platitude they were invoking but an undeniable historical truth. Governments know that their best opportunity to institutionalize rights violations is when they can most easily manipulate the public into acquiescing to them by stoking public emotions of contempt against the individual target. For the reasons Paine and Adams explained, it is exactly in such cases – when public rage finds its most intense expression – when it is necessary to be most vigilant in defense of those rights.

We have already seen the cost of Quarles. What will be the cost of Tsarnaev?

 

Perhaps intelligence committee is a misnomer

The Constitution of The United States of America is a self-executing document. It does not need permission to grant you your rights, nor does it require a magical incantation to appear and shield you with its protections, as if it were a concoction of a fantasy universe created by a now-very-wealthy female author from England.

But people – many people – with purported intelligence and advanced degrees and those who are presumed to have a basic understanding of these simple facts continue, yet again, to exhibit why we are electing a Congress of fools.

Lawmakers in our nation’s capital – albeit mostly ones with an R next to their name – have made an abrupt about face when it comes to the inviolability of the Constitutional guarantees and have now subjected the rights to a matter of convenience.

House Intelligence Committee Chairman Mike Rogers (R., Mich.) said in an interview Thursday. “We have a long-standing tradition that the judiciary does not interfere with investigations. This sets a very dangerous precedent.”

The “this” that he is referring to, is the story that a Magistrate Judge, on Monday, advised Dzhokhar Tsarnaev of his Privilege Against Self-Incrimination at his arraignment [PDF]. We will get to Mike Rogers, who went on to make even more dangerous comments, in a minute. But first some background.

Apparently, the entire Federal Law Enforcement PolitBuro was “surprised” when a “judge and a US attorney” entered the interrogation room. By then, 16 hours had passed, and any semblance of legitimacy for the use of the “public safety exception” in Quarles. The danger of their “surprise” is that law enforcement expected to be able to “interrogate” Tsarnaev indefinitely/longer/for however long they wanted. Because the Constitution explicitly states that these Rightf are Not Enforceable Until At Leaft 48 Hourf Have Paffed And Thou Art Not A Muflim Terrorift. Wait, no it doesn’t? As my buddy Scott Greenfield writes (linked above):

If this is about the public safety exception, than the government has taken a quantum leap into the temporal abyss. But it’s not clear that this has anything to do with the public safety exception, as it’s hard to imagine anyone arguing with a straight face that they needed five hours, ten, 16, more, to find out whether this 19 year old kid, this kid who had been shot, this kid who (for all he knew) was about to disappear in some black hole the government reserves for terrorists, knew anything about another imminent attack.

Indeed one need only look to this compilation of the changing information of the dangerousness of the two Tsarnaevs to realize that law enforcement’s state goal of “public safety’ was nothing more than an excuse for extraction of information from a U.S. citizen in an extra-judicial manner.

But Rep. Rogers, a former FBI agent, apparently has no such concerns because he’s white not a Muslim.

“What I find shocking is that the judiciary proactively inserted itself into this circumstance and the Justice Department so readily acquiesced to the circumstance,” he said. “The court doing this proactively, they may have jeopardized our ability to get public-safety information.”

A sitting United States Congressman has just stated that the judiciary should not interfere with the administration of law and our rights and that determination of those rights depends entirely on the goodwill of law enforcement agents.

If this were the McCarthy era, or 1984, and I had to give up people I suspected as Communist sympathizers, the first name out of my mouth would be Rep. Mike Rogers of Michigan.

It gets worse.

The revelation about the judge’s role came late Wednesday at a briefing before the House Intelligence Committee. One lawmaker in the meeting asked FBI Deputy Director Sean Joyce why the FBI didn’t raise objections, according to another U.S. official. Mr. Joyce said in essence it wasn’t the FBI’s role to object to such a determination, the official said.

It came as a surprise to the nation’s lawmakers that it was not law enforcement’s role to intercede in the judiciary doing its job. In other words, something as basic and simple as the separation of powers, the administration of justice and due process elude these people who sit on the “Intelligence Committee”.

Let me repeat: the Constitution is self-executing. The rights exist, whether you like them or not, whether you say the magic words or not. The rights enumerated therein do not require the grace and goodwill of lawmakers like Mike Rogers of Michigan to “activate”. Do you want your Constitutional rights to be subject to the permission of Mike Rogers of Michigan?

Let Jon Stewart take it away:

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CT Supreme Court: To be a law firm you’d have to be a real lawyer

u-think-we-share-2-much-nah.jpg

If you’ve ever had to respond to an opposing party’s filing in Court, you know that some are very good and make your job challenging. And you know that some are so bad that you don’t know where to start. You sit and stare at the pleading or brief or whatever it may be and you stare at a blank computer screen because the depths and lengths of the sheer absurdity of the filing that you are tasked with criticizing and rebutting is unimaginable and it is swallowing your brain whole because there is no possible way any human being can even begin to deconstruct the stupendously mindboggling arguments that have been made. And you stare and stare in the hopes that someone will rescue you by showing up in your office and saying “April Fool’s! That’s not the real thing” or “hey, never mind about that reply because they withdrew their filing out of sheer embarrassment when they realized how it’s not even wrong” and then you resign yourself to the fact that you can’t actually submit a response that consists entirely of the Picard facepalm, because, while funny, it’s not very professional and so you write several different opening sentences only to delete them all and try again while swimming in the despair and futility of it all.

This is how I feel right now – and have felt since 11:30am yesterday morning, when the Connecticut Supreme Court issued its opinion in Anderson v. Commissioner [PDF].

Anderson is an appeal of an Appellate Court decision that I wrote about in October 2011. It was a post-conviction appeal in which Mr. Anderson argued that his conviction was illegal because his lawyer represented him in a way that violated the Sixth Amendment because the lawyer was operating under a conflict of interest.

This is a big deal, because everyone has the Constitutional right to have a lawyer whose only interest is the interest of that client and no one else. See Cuyler v. Sullivan. You can easily imagine why this is paramount. The client hires the attorney with the intention that the attorney will represent the client and only the client in his case and that the attorney is working for the client and what the client wants and thus the attorney’s loyalties cannot be divided.

There are very strict Rules of Professional Conduct that govern this matter and whether lawyers in the same law firm can represent two parties whose interests are at odds with one another. The rules are pretty clear, stating that you cannot do that, unless you get waivers from both clients. Unless, of course, you’re not a “real lawyer”. By which I mean you’re a public defender.

A shortcut through your rights

The Hartford Courant has a whiny editorial complaining that the State’s prosecutors have no investigative subpoena power, which, as I’ve written so many times now, is not even a euphemism for forced interrogations and also a violation of the Fourth Amendment.

It argues that state prosecutors are “relatively toothless”. I suppose relatively is a relative term, but the Editorial makes no effort to tell us what it is relative to. I suppose it is relative to a world in which every citizen is obligated to answer any and all law enforcement questions and turn themselves in for committing crimes lest they be charged with another crime for failing to do that.

But that’s not the world we live in. Prosecutors are handling themselves just fine, thank you, judging by the crushing caseloads of the criminal courts in Connecticut.

All of that, however, I would forgive, if the Editorial did so much as to attempt to explain the standard for conducting these secretive investigations the State wanted: in the interests of justice.

A standard that is more vague and unexplained has not been written. The interests of justice is a moving target, a “we’ll tell you what it means when we decide what it means” standard that changes depending on the case and the subject subject to it.

The prosecutors were testifying in favor of a bill that would open some shortcuts for them in seeking a grand jury capable of issuing subpoenas. That would be progress.

I don’t want the State taking any “shortcuts” through the Constitution. When the State takes “shortcuts”, innocent people end up in jail. But the Editorial Board doesn’t seem too worried. Maybe we can have them be the guinea pigs for this shortcut. In the interests of justice.

[For my previous complaints with the rather naive and uninformed views of the Hartford Courant when it comes to criminal justice matters, see here and here.]

Give an inch and now they’re suggesting forced interrogations

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.

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

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