McNeely Curiosity, or Why Are Judges Hypocrites?

An interesting judicial phenomenon is spreading across the Fruited Plain, and things will get worse before they get better.

47 years ago, the U.S. Supreme Court held that a warrantless blood draw from a person arrested for drunk driving was okay IF exigency existed, AND the evanescence of the alcohol in the system was not, by itself, sufficient to justify the search - there had to be more.

Some courts in the country respected that ruling [as all must, under Supremacy Clause holdings]; courts in this state [the supposed land of Liberty, except to those of us who practice law in it!], however, did not - for decades they thumbed their noses at the Supreme Court's clear rule, holding, in contrast, that the evanescence of the alcohol alone is sufficient exigency to warrantlessly stab a person and suck out his life's juices.  That is, our courts practiced anti-liberty judicial tyranny, just as the courts of the old Jim Crow South did.

The Supreme Court held, just about a month ago, again that evanescence is not enough - there must be more.  Now our courts are saying, in essence, "well, since the cops relied on our old rule for so long, evidence collected in reliance on that old rule, concededly now unconstitutionally seized, should not be suppressed, because that would be unfair to them."  Uh..., HELLO!  Unfair to the cops????  Is that what the Constitution guarantees, fairness to the constabulary, at the expense of liberty?

In our courts' twist, the cops can rely on "ignorance of the law" IS an excuse for their conduct, but us regular folk would be laughed out of court, or into jail, for pleading "ignorance of the law" in our matters, because it is no excuse.  Because our courts have thumbed their noses at the U.S. Supreme Court for almost 5 decades, our cops should be given a pass?  In our scheme of things, or the Framers' scheme of things, who is to be protected by the Constitution, individuals or government?  Was the Constitution written to protect government?

Our judges should be ashamed of themselves for concocting a doctrine of reasonable reliance on erroneous law; that is being woven from whole cloth.  It is bad enough that cops are able to get away with "ignorance of the law is an excuse" for bad warrants [if they would not have known] or for reversed direction of the Supreme Court, but to allow it when the Supreme Court merely reiterates a rule that others, in the pursuit of easy DUI convictions, have chosen to ignore calls into question the entire meaning of a rule of law, and of constitutional law.

Judges are charged with a duty to patrol the boundary lines of the Constitution and to protect individuals from overweening government; they are not supposed to become the overweeners themselves nor to protect their police chums.

All doubts should be resolved in the direction of the individual, because that is what constitutional law is all about.

There are so many other aspects of this new state judicial tyranny, but we want to give it in installments so the constituent parts can be fully absorbed.

Miranda Confusions and Ignorance

There are many so-called experts blathering about the Boston marathon bomber and Miranda and "enemy combatant" that we need to clear the air by sweeping away the smoke of ignorance.

First off, Obama eliminated the status of "enemy combatant" from a standpoint of questions about how to treat those alleged to be terrorists in 2009.

Secondly, an enemy combatant presupposes we have an official "enemy," that is that we have a congressionally declared war against a sovereign nation, and then someone militarily associated with that sovereign nation does something outside of the battlefield against the security of this country.  We, of course, don't have a declared war, making most of our international bellicosity unconstitutional, and our invasions and occupations of foreign lands are, of course, war crimes, which is why we do not subscribe to the jurisdiction of the International Court at the Hague, while self-righteously asserting that other leaders should be prosecuted there for war crimes!  And an "ism" [terrorism, communism, stupidism] is not an enemy, but a methodology or line of thought, so it is not something war could be declared "against" anyway.  So, we could not have a true enemy combatant here [whether he be citizen or non-citizen].  Moreover, almost all enemy combatant matters, the few valid ones, occur outside of the constinental US and involve non-citizens. Yes, yes, I know about the WWII incident[s]; and that was a declared war against a tangible, sovereign belligerent.

Thirdly, those in custody for crimes [and murdering people with bombs is a crime] have a right to be informed of their Miranda rights, and if they are not, and if they are nevertheless grilled, the verbal fruits of those grillings cannot be used against them.  Those fruits can be used against others, and they can lead to other evidence usable against the person grilled.  If they lead to physical fruits, those can be used against the person being interrogated, under the wrong-headed Supreme Court opinion of U.S. v. Patane.

Fourthly, if Miranda rights are not timely given, or if they are given and invoked, but interrogations proceed notwithstanding, that does not result in the dismissal of the charges, but only in exclusion of the verbal fruits, and solely as to the person interrogated.

Fifthly, the "public safety exception" to Miranda is very narrow, it is involved with quick action needed at the site of the questioning, and it lapses shortly thereafter, and it was created at a time that Miranda was not considered to be a rule compelled by the Constitution.  However, years later, the Supreme Court woke up and decreed that Miranda is constitutionally compelled [Dickerson], and its rule is itself a constitutional right, so query whether any aspect of public safety exception survives, but it does not exist days later, in hospital beds, with someone truly in isolated custody.

The news programs are spewing idiotic stuff through supposed "experts" who know not what they are talking about, and silence is better than idiocy.  Idiocy on this volatile subject [nor really on anything] does not serve the public interest, even though it might sell newspapers and magazines, or inspire viewers.

"Be Professional...."

That is the exhortation of the hypocrite who fears the truths of what a properly principled person is saying and doing.

I recently accurately noted that only "government hacks" masquerading as scientists would embrace the government positions about alcohol forensics that drive drunk driving prosecutions, and I earlier accurately called a government stool pigeon a "stoolie," and the judges in each circumstance went nuts; I was being "unprofessional."  They don't hesitate to call my clients drunks, murderers, robbers, rapists, burglars, but Heaven Forbid! that I accurately label one of their chums, or the chums of their beloved prosecutors, what they are.  And the complaint against my truthful labels and utterances always sounds in terms of lack of "professionalism."  So what does that mean, not being "professional"?

Our craft touts itself [with diminishing aptness!] a "learned profession."  And in that context, nobody is more factually or intellectually prepared, nor more supported in his positions by scholarly and accurate research, nor more able to present his positions by attention to proper procedure and evidentiary standards, nor more willing to treat the various actors in the courtroom with their "due respect" [the "respect" they are "due" based on their level of enlightenment or scholarship or thoughtfulness] than I, so what means "professional"? 

Has "professional" come to connote some juristic political correctness of saccharine phraseology or false deportment that hides the essence of that which is being discussed or conveyed?

I suppose the "be professional" crowd would find favor in the quietly dignified death camp commander who, with reserved profundity of mien, while pensively listening to Wagner, sipping Liebfraumilch, gently inhaling a French cigarette in a gold cigarette holder, dressed nattily in creased and starched uniform, with seriousness of purpose orders the monthly supply of Zyklon-B gas.  He would thereby "be professional."  In contrast, the firebrand who would loudly denounce him for his inhumane barbarism would be "unprofessional." 

King George, III, violating colonial liberties with arms and ships and various affirmative outrages, while gently taking snuff from a solid gold case cradled in his lace-encircled hand, would be "professional"; in contrast, Samuel Adams dispatching the Sons of Liberty to dump the celebrated tea would be "unprofessional."  Sorry, Gang - I'll take Adams and the firebrand over those "professionals" any day of the week.

So, any time someone in power scolds you for being "unprofessional," sincerely thank him, because he thereby recognizes that you will demand substantive liberty over pretentious tyranny, that, in short, you are an American, while they and the ones they prefer are the Huns.

Write Not a Post-Mortem for the Post Office

There is much discussion of late about the U.S. Postal Service and what needs to be done about it, considering that it is perpetually in the "red."  Uh..., Hello!  The framers did not perceive of the service as something that should make money; they considered it a fundamental public service necessary to make the Republic strong.

There were few things the national government properly/lawfully could do [if one believes in the Constitution as more than a quaint icon to be stored away in the National Archives and dusted off on the 4th of July and Constitution Day], and they were largely defined by Article 1, section 8, and among them were the power to establish a post office and post roads.

The framers understood that a healthy polity required easy and inexpensive communication among its members, and between its members and its government, and that was the role of the post office.  It was to facilitate values that were later enshrined in the First Amendment.  Indeed, it was an instrument to help give voice to the later enacted First Amendment [whose unstated values inhered in the people's existence long before the framing].

Ben Franklin was the first postmaster general under colonial government, and then the crown fired him for consorting with revolutionaries[!], and he then became the first postmaster general under the continental congress.  A peron of his his legendary and titanic stature did not run a "business" to help get the Ladies Home Journal to frustrated matrons; he ran an operation that both the crown and the colonists understood to be vital to a healthy government, whether that government be royal or revolutionary, or republican.

The fact that the current post office has trouble competing with e-mail and various private organizations is irrelevant to the question of whether it should be sacked, because it is not supposed to be a business but a public service.

We should no more eliminate the post office because of its red ink than we should the military, because neither was intended to make a profit, and both are essential to the maintenance of a free Republic.

Indeed, the question of "red ink" pressupposes that its ideal is to run in the black, and it is not - it was not conceived of as a business, and the fools that took it out of cabinet status and tried to contort it into being a public business were as ignorant of constitutional intents as are so many in government these days on this and other topics.

Return the post office to cabinet, public service status, drop the business model, and let it serve the public in the fashion originally intended.

Supreme Court's New Ruling re Police Dogs a Real Bitch!

The U.S. Supreme Court has just ruled in favor of a police dog against liberty interests; they unanimously overruled the Florida Supreme Court [not an excessively pro-defendant body, by the way!], supporting instead the work of a drug-sniffing German shepherd named Aldo, ruling that police do not have to extensively document a dog’s field experience to justify relying on the animal to search someone’s vehicle. [Florida v. Harris, 11-817, decided 2/19/2013.]  Let me show you the danger of heeding what the cops say about their police dogs, and how irresponsible the supreme court is [again] in this pro-government ruling.

There was this police dog.  The courts were repeatedly told by its handlers that he was a wonderful and reliable drug sniffing canine, and he sported a badge.  He had been in loyal and “effective” service for a few years, with a reputation based on cops’ representations spreading far and wide.  We’ll call him “Fido,” which is not his real name, to protect the innocent.

Real Stories of the CHP was filming on a stretch of an interstate highway in a jurisdiction in which I was working, and they got permission to accompany the cops on a highway interdiction drug bust.  The cops needed them for publicity; they needed the cops for ratings; Lady Justice needed honesty, and she was almost disappointed.

The cops started patrolling, in two cars, with cameraman and reporter riding in one, and they eventually pulled over some hapless soul for speeding.  What follows was on the videotape.  The cops surrounded him and started the stock “where are you coming from; where are you going; do you have any guns, money, or drugs in the car,” and so forth that has nothing to do with speeding.  After holding the motorist there for an extended period for a non-speeding grilling [read “prolonged detention”], the cops asked if they could search his car. [Editor’s Note: the answer should ALWAYS be “no.”]  He reluctantly said ok.

They opened the trunk and the handler cop commanded the dutiful Fido to jump in.  Another command was to search, but the well-trained Fido wasn’t quite sure what he was talking about.  The one cop kept banging on the insides of the trunk while the other one talked to the reporter.  Fido ran back and forth frantically, and then hysterically, in response to the banging, finding [“alerting on”] nothing, so they let the poor creature jump out. 

The two cops started talking on camera to the reporter, when one of the cops hoarsely whispered to the other “Get your dog.”  “Huh?  “Get your f---ing dog!”  The camera panned around in the direction of both cops’ gaze, and off in the distant desert there was a speck of Fido.

“Fido, Fido, Come!”  Fido was having too much fun.  The handler cop then barked a command more snarlingly than Fido could ever sound, and he finally trotted back, with the prize in his mouth: Fido had alerted on a dirty baby diaper he happily found in the desert!  “Drop it, Fido!”  Fido could not quite understand why his master was so grouchy.  “DROP IT, FIDO!”  He finally did.

The search roust resumed.  They headed to the passenger compartment, and the handler commanded Fido to get in and search.  Fido ran back and forth, wistfully recalling his baby diaper.  Back, forth; back, forth!  No diaper; no alert on anything else, either.

Apparently sensing televised calamity or embarrassment, the other officer then went to the hood, opened it, and, obviously to distract the cameraman and reporter, who were still looking for televisable fruits in the passenger compartment, cried out “oh, look; there is something here.”  The cameraman and reporter ran up there, leaving the handler and Fido to work their efforts on the passenger compartment.  Of course, there was nothing up in the hood, but then the handler, still back at the passenger door, expostulates: “Look what we found.”  In the one to two minutes the others were looking in the hood!/?

The reporter and cameraman rushed back to the passenger compartment, and now there had appeared, on the floor of the front passenger seat, a stainless steel vacuum canister, with its top off, and packages of suspected cocaine sitting next to it.  The incredulous reporter inquired “Did Fido find that?”  “Yep, he ‘alerted’ on it.”  Well, could we re-enact that for the camera?”  The handler was obviously uncomfortable with the idea, but with the camera and sound rolling, he hesitatingly obliged.

The cops put the suspected drugs back in the canister, screwed on the top, and the handler gave Fido the command to find the stuff.  Fido did not have a clue what he was being told to do.  The cops banged on the canister with their Billy-clubs, and Fido looked quizzically from one to the other.  They then banged and banged and banged to the point that the poor dog damn-near peed himself [and so too the reporter, we suspect], and he then gave a fear-induced quiver, and the handler then said “see, he alerted; let’s see what’s in there.”

They opened the canister, and Zounds!, there were drugs, so the motorist [now being held on a speeding beef for over half an hour] was arrested for trafficking drugs.

Of course, the resulting police report did not read that way.  It related that there was a traffic stop, the trusty Fido walked around the car and immediately “alerted” while the speeding ticket was being processed, which gave the cops probable cause, because of Fido’s proven, court recognized track record[!], and they searched, and found a stash of cocaine.  Bing, bing, bing, bing.  Any court would believe it!  Knowing how things are in that drug enforcement arena, I did not.

After reading that report and talking to my client, I started to subpoena the complete tape and outtakes from the Hollywood producer, but my investigator called them first.  He spoke to the executive producer and said “Sir, Mr. Kennedy is furious and he wants….”  The producer interrupted and respectfully blurted out “he can have whatever he wants; what is it?”  Why so cooperative? You see, that producer had given me grief about a similar outtake show 6 months before, when I was litigating a Fourth Amendment attack in Needles.  My investigator had called and had politely asked for the tape, and the same producer told him to pound sand.  I served a subpoena duces tecum on him, commanding him to appear in Needles, in August, with the tape.  He thought about it and tried to get out of the subpoena by then offering to send the tape to me.  I allowed that he had screwed with the wrong person and that he could now sit in Needles until I was ready for him.  I got that tape, and it showed police dishonesty too, and that case was dismissed.

So this time, when my investigator said “Mr. Kennedy wants….,” there needed not to have been said any more.  Mr. Kennedy got.

The tape was a goldmine of police overreaching and corruption and duplicity, and of false representations about the prowess of a renowned police dog, and it was, of course, 180 degrees off of the substance police report that had triggered the filing against my client.

I told the judge that I would share a secret with him and the DA in chambers, and I strongly hinted what it was, and I said that I wanted a dismissal with a promise of no refiling, but if we went to formal hearing, I would contact 60 Minutes.  The judge said that if the tape came close to what I said it was, I would get my dismissal.  It was not only close, it was utterly congruent with my representation.  The case was, of course, dismissed.  The DA did not file false police report charges on the cops.  Real Stories did not air that segment, but we suspect many they did would have similar outtake revelations: two out of two that I examined did.

While dealing with another matter in the courtroom, I left the tape in the judge’s chambers for 10 minutes, and the only people in there were the judge, the DA, and two cops.  When I returned, the tape was missing.  Everyone feigned ignorance about where it went!  They, of course, honored the dismissal and non-refiling, because they knew I could get another tape.  And Lady Liberty wept, because the shepherds proved themselves really to be the wolves.

And those cops, and judge, and DA were as honorable as many we have now, and Fido was as competent, if not more so.

For this current supreme court, “a sniff [would be] up to snuff” for probable cause; unfortunately, our supreme court is not up to snuff for what the Framers envisioned would be their role of protecting us from overweening government.  They are increasingly the overweeners themselves!

How "Supreme" is the United States Supreme Court in Insight: Q&As in McNeely Oral Argument Troubling

The Q&As during the McNeely hearing before the U.S. Supreme Court two weeks ago are a bit alarming.  Justice Sotomayor [I think - might have been Kagan] said she has read Schmerber backwards and forwards and cannot find the "special facts" cited there as the reason for the warrantless venal stabbing and blood draw for the DUI arrest.  [Remember that stabbing one with a needle is assault with a deadly weapon, against which government agents have limited defenses.]  And Scalia, and several others, assumed that FSTs have some scientific reliability, and hence from them a cop can develop probable cause to submit to a warrant-signing magistrate to get a quickie warrant, implying that there is no reason for warrantless blood draws, unless there is no magistrate available. 

Uh..., HELLO: the "special facts" are clearly stated in Schmerber, and McNeely reiterates and highlights them as the support for its ruling, which is now before the supes.  The special facts are the arguable evanescence of alcohol in the system PLUS the time delay created by the investigation of the accident PLUS the time delay associated with taking the defendant to the hospital for his accident injuries.  If my law clerk could not see that, he/she would be fired. 

And there is no peer-reviewed scientific correlation between an individual's performance on FSTs and impairment by alcohol [unless, maybe, one knows the baseline for the person being tested].  And an appellate lawyer who also tried DUI cases would know that.

So, it is scary that a supreme court justice cannot see what is right there; and it will be a bit troubling in my later DUI attacks on FSTs, where I have my criminalist accurately decree there is no established correlation between FSTs and impairment, when the supreme court has assumed away the point against us [without clarifying objection by the appellate counsel ] as the launchpad for this new litigation. 

Moreover, the not-objected-to, and even conceded, claims, by several justices, of the supposed calamitous dangers of DUIs perpetuates a myth on which the MADD has based its neoprohibitionist agenda that ignormuses in the legal arena have signed onto for decades to justify demonizing those accused of DUI. Most accidents are not caused by provably drunk drivers, and most provably drunk drivers do not cause accidents, which is why the "alcohol-related [deaths, accidents, etc.]" category was created by MADD, and embraced and spread by NHTSA.

Yep, it is true the USSC are not "supreme" in their intellectual and constitutional insights but only in the finality of their pronouncements. Liberty is protected, if at all, by a thin and eroding reed in this Republic.

321 years ago we had the Salem Witch trials, wherein 17 women, one man, and a dog were put to death on no lesser quality of "evidence" used now to convict people of DUI, both prosecutions fanned by the same sort of hysteria.  The more we "advance," the more we stay the same.

Gun Possession Rights; 2d Amendment and More

I speak here initially of ex-felon with guns prohibitions, but the controlling issue is a major thread in a larger raiment, about which I shall close these comments.  One thing the constitutional defense Bar needs to continue to hammer on is the unconstitutionality of ex-felon with gun statutes. Heller and McDonald finally announced what true constitutionalists have always known: that the Framers considered individual gun possession to protect ones self, family, hearth, home, property to be a fundamental right that predated the founding of the Republic. 

 

Blackstone considered gun possession rights to be part and parcel of the property and life that we possess and seek to expand, because that which we cannot protect we don't truly have. Part of the problem with Heller and McDonald is that the faux originalists ["faint hearted originalist," as Scalia describes himself!] writing them did not really understand the difference between the constitutional right announced in the 2d Amendment [a mechanism for guaranteeing the preservation of federalism] and the fundamental right of self-preservation and self-propagation, which is what gun possession is really all about [an inalienable right that inheres in our very existence, as noted in the Declaration]. 

 

So, they got the fundamental rights language mostly correct, but their ham-handed attempt to pound it into the 2d Amendment placed implied limitations on that which is unlimited. A constitutional right can be taken away by constitutional amendment; a fundamental right is inalienable. So, if there is a fundamental right to possess arms for the protection and propagation values described above [and there is], then the fact that one is an ex-felon does not abnegate his right to protect himself and his family and home. Indeed, one with a criminal past is less likely to obtain police attention when the cry for help goes out than are we "decent"[!] folk, so they arguably have a greater, not lesser, right to gun possession. 

 

What you run up against when you try to litigate the ex-felon with a gun prohibitions [the few of us who do], though, is Scalia's idiotic [or maybe puckishly wise] comment in Heller that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons….” First off, that is gratuitous dictum that had nothing to do with the issue before the court, and hence it is not constitutional law [the idiotic part]. Secondly, there were no "longstanding prohibitions" of that sort, considering that colonial times was the context of the holding [puckishly wise portion?]. You can't find any colony that prohibited people who had felony convictions from possessing guns! Indeed, many of the founding fathers were convicted in absentia in England of treason, so many of them were felons of the vilest sort: did they mean to prohibit themselves from possessing guns? 

 

So, the defense Bar needs to keep hammering and hammering and hammering on the unconstitutionality of ex-felon with guns prohibitions, so that my pleadings on the subject are not the only ones the courts are seeing. Hammer, hammer, hammer!  Felons have a right to protect themselves and their families and hearths just as you and I do, and the defense Bar has a duty to assist them to do so, or.... the attorneys should go into Wills & Trusts law, the place for the dead!

 

But I write here not only for ex-felons with guns prohibitions, but to address some of the blather we are hearing and reading in the press and on the blog-o-sphere and and on talk radio and in the "hallowed halls" of government.  Like it or not, there is a fundamental right to possess guns, originally to hunt for family sustenance [and a bit now], and both then and now to protect hearth and home and family and self; there really is no properly informed disagreement with that notion.  And that is not what the 2d Amendment was all about; just as we do not see an amendment protecting our rights to breathe or to mate or to have children or to have homes, we do not need an amendment to lay out the various legitimate mechanisms for protecting those rights.  The 2d Amendment really was about militias and states protecting themselves from federal incursions and permitting the people to keep their own guns instead of having them in a state armory, etc.  "Bear arms" has a martail connotation - if I carry my own gun down the street for my own protection, I am not "bearing arms," I'm carrying my gun!  The individual right to possess guns resides in the Declaration, and is recognized and protected in the 9th Amendment and in the liberty clauses of the 5th and 14th Amendments.

 

The idiotic debates about 7 round clips or 10 round clips or 30 round clips, or whether we can have hand grenades or bazookas, and other simplistic persnickety-isms, overlooks that it is a Constitution we are expounding, and we cannot press constitutional matters without understanding what a constitution, and what our Constitution, is all about.  One thing is for certain - we cannot limit the rights of all because of the abuses of the few, or else the Constitution would be rendered nugatory, and in would be ushered arbitrary government.  It is just outside the gates as it is!

 

Whack jobs abuse guns as they do books, printing presses, Bibles, Korans, juries, self-incrimination privileges, rights to attorneys and juries, etc., but we cannot shave back on any rights of us all because of the abuses of the few.  We have to deal with the root causes of the abuses side of the problem and not lay waste to the rights side.

 

Indeed, a Constitution is not a Constitution, and constitutional rights are not truly constitutional rights, if assaults on them by deluded ravagers invites a diminution of the rights or the Constitution itself.

 

One of the problems here is that we really do not have people devoted to the Constitution, nor even properly informed about it, in office and on the bench.  Values other than fealty to, and an understanding of, the founding principles of the Republic factor so heavily in the "vetting" process that installs judges, legislators, and executives that constitutional faithfulness gets lost in the folderol.

 

We have a right to possess guns for the values described above, and those who would deny it are ignorant or traitors or tyrants.