Wednesday, April 15, 2015

Best Coachella Fest Defense Available Anywhere



As I announced and predicted would occur in various forums, there were many arrests at the latest incarnation of the Coachella Valley Music and Arts Festival [Coachella Fest], and most could have been avoided if my advice had been followed.

You need to understand that local government coffers swell with these sorts of arrests, and subsequent prosecutions, because they are Grant funded, meaning the local agencies receive enormous sums of money from Sacramento, which was sent there from Washington, D.C., which was taken from you in taxes back here, to screw over people, in the disingenuous name of “health” and “safety,” in this nation conceived of Liberty.  And most of these sorts of arrests were and are avoidable, if you just are careful of to whom you are speaking, of who you are letting sidle up to you, and then of what you say and allow when you are detained and arrested.  You are not required to talk to cops, nor to let them search, and you should not, because it never, ever helps.  They are there to put cases together, not to seek the neutral ends of justice, nor to help you out of the downsides of your bad choices.

Even though avoidable things have not been avoided, that which should have been avoided can be mitigated or eliminated if you have the proper attorney.

No one is more effective nor experienced with dealing with drug, alcohol, and conduct related offenses at these festivals [or anywhere else] than am I.  No one has a better track record, credibility in the Courts, grit, or scholarship than I.

If you have been victimized at one of the festivals, this weekend’s or next weekend’s Coachella Fest, or the later Stagecoach, contact me.  You can do no better than have me on your side if you have been accused of crimes; you can [and too many do!], however, do much worse.

It does not cost to talk to me about your case; it will, however, cost you more than mere money if you choose to go elsewhere.

Call for an appointment: 760-863-3840.

www.kennedyforlaw.com

Thursday, February 19, 2015

Like it or Not, Cops Do Lie and Plant Evidence

I have said this for years, sometimes to the outraged condemnation of police groupies and pissed-off cops, but now a cop himself says what I could not say better nor more effectively.  Does this mean all cops are bad?  No; many are good.  But the presumption that a cop is truthful merely because he wears a badge is idiotic, and it is one of the main problems in jury trials today - jurors do not want to believe that what appears to be a lie is, when uttered by a shiny badged, Boy Scout-looking cop.  Think again:

http://thefreethoughtproject.com/officer-reveals-planting-evidence-lying-part-game/#5ubqphjYqDsAbeCw.01

www.kennedyforlaw.com

Tuesday, December 16, 2014

May the Juristic Devil Take the Heien-Most; We are Now a Full-Fledged Police State



Does anyone really question whether we have long ago sunk into the muck of being a police state?  If anyone is so deluded, the newest United States Supreme Court opinion on Fourth Amendment matters should sweep away such a delusions.

Heien v. North Carolina came out yesterday, ironically Bill of Rights Day, and it involves a traffic stop of a vehicle, which ultimately results in the collection of cocaine because the occupants of the car couldn’t shut up and they consented to a search.  What brought the case to the Supreme Court was the fact that the cop stopped the car for a brake light malfunction that really was not against the law: the officer made a mistake of law about the facts he was observing on which he based his liberty invasion.

Now, we all know that “ignorance of the law is no excuse,” right?  If you are accused of breaking the law and you genuinely don’t know your conduct is illegal, you cannot invoke that doctrine to get out of accountability – you are deemed to know the law.  Unless you are a cop; a cop now is not deemed to know the law.  Giving, institutionally and systemically, greater rights to police than enjoyed by the polity has to be the definition of a police state.

In an opinion that will live in infamy, the Court ruled that reasonable good faith misunderstanding of what the law requires is a defense to a motion to suppress evidence.  In effect, they are ruling that the badged/jack-booted “law” “enforcers” are not deemed to know the law they enforce!  Huh?

This really is a conscience shocking opinion by SCOTUS, which had a duty appointed by the Framers to protect people from excessive government. The default position in this Republic was to be for liberty and against power, but that has eroded steadily since the early years, and then at juristic lightspeed since the Nixon justices were appointed in '68. It is interesting that the chief justice cites two-century old cases to help support his anti-liberty screed, yet in that era, if there were violations of the Fourth Amendment, cases would get dismissed and government agents and judges could get sued, and the agents could get arrested for trespass, and habeas would lie. But the current court does not embrace those early doctrines, because they protected individuals and they properly but inconveniently punished government; “originalism” is only embraced these days where it appears to support power, which is ironically counter-originalist! This court only embraces the early doctrines that they think assist the power side of the equation.

If we ever needed proof of the long self-evidence notion that we have become a police state, this case is written to illustrate that truism. Ignorance of the law is not a defense for you or for me, but it is for the court's pals sporting badges [yes, I know the chief justice made an almost humorous, and patently cynical, distinction of that idea as between regular folk and their government chums, but his utterances on that have the substance of the Emperor's iconic raiment].

Although this purports to be a narrow opinion, it will be expanded by our trial court judges in our suppression motions [negligently or otherwise], since they are no more required to know the law and its limitations than are cops; it’s only the plain folk that have to implicitly and expressly know the law, or else they get screwed.

There was a time that everyone understood that liberty is the default position in this Republic and power is the disfavored position.  That founding notion has been turned on its head time and time again since 1968, and now it has been scrapped entirely.

www.kennedyforlaw.com

Thursday, November 20, 2014

Chief Justice Tani Gorre Cantil-Sakauye Asks Us to Brag About the Courts; Why Should We?

California Chief Justice Tani Gorre Cantil-Sakauye has spoken at many attorney gatherings imploring members of our profession to work and to speak to build up the reputation and credibility of the judiciary. She has not explained, however, why we should do so.  What reputation?  What credibility?

The Framers envisioned the judiciary to be the one branch that could be counted on to protect the rights of individuals from majoritarian excesses, but it has increasingly sided with power against the individual.  As Dean Irwin Chemerinsky recently noted, echoing many of my letters to the editor and radio presentations over the years, “when the passions of the moment have led to laws that compromise basic rights, the [U.S. Supreme] Court has failed to enforce the Constitution.” E. Chemerinsky, The Case Against the Supreme Court 10 [Viking, 2014].   And then lesser courts learn their lesson from the Supreme Court; they learn that liberty is no longer [and hasn't been for decades] the ascendant value in this Republic.

A regular citizen cannot walk into any state courthouse or courtroom and sense that the functions there are to protect him or her from government excesses.  From the very beginning of the experience, where the regular folk [who own the courthouse and are the sovereigns!] have to subject themselves to demeaning searches and probings and snoopings just to get into the building while their presumptive oppressors, the cops, walk in and out without limitations or scrutiny, to the point of entering the courtroom [where cops have been permitted to sit, and sometimes be cheerfully greeted by the judge, while the polity stands outside, and are sometimes sneered at by the judges], to the point of arraignment [where some judges seem impatient and disgusted if the accused doesn't want to plead guilty, and some even illegally demand pre-payment of fines to obtain a constitutional right to court trial!], to the trial [where things are grossly stacked against the accused], to sentencing [where the system finger-waggingly tisk-tisks at people who have done little different or worse than government agents do all the time], there is no atmosphere of protection, understanding, concern for the hapless individual.  Judges never want to say anything harsh to their cop pals.

I have won over 1000 Constitution-violating based motions in my many decades, and many times the judge apologizes to the cop for having to rule the way he did; but not once has a judge apologized to a defendant for the fact that his constitutional rights were violated!  Not once!  My clients have, of course, occasionally been scolded by the judge and been reminded that the Constitution saved them. The cop has never been scolded for the violation!

We often hear the “Victim's Bill of Rights” bandied about as proof that the system cares about the individual, but unless you are a victim who wants the cops and prosecution aggressively to press forward [about which they are eager, because there are grant moneys in the offing], you are disregarded.  If you tell a cop or DA that you do not want the person prosecuted, the one whose actions made you a victim, they will sneer and castigate and warn you that if you don't show up to press forward, they will have you arrested and jailed!  And they will and do.  And the judges allow and enable it.

Judges allow cops to lie to do their work, but Heaven Forbid if you or your attorney does.
Judges concoct all sorts of exceptions to the warrant clause to excuse their cop-friends for their violations of the Constitution. Judges are constricting 4th and 5th Amendment rights on a daily basis, to the point that those protections are a mere shadow of their former and intended selves.

One interesting and government leaning device that infects the system and eviscerates liberty is the waiver/forfeiture doctrine, which is enforced only one direction.  If a defendant fails to bring up a point, he is deemed to have waived or forfeited it.  If a prosecutor fails to bring up a point and you demand that he be deemed to have waived and forfeited it, the judge will patronizingly lecture you that this is not a gotcha game but an enterprise in which the Court is to do look at the legal issues and decide the matter based on that, whether the other sife brought it up or not!  Huh?  Why does that only run one way?  The other day, a DA failed to oppose my position, so I said they waived it and the ruling needed to be in my direction.  “Now, Mr. Kennedy; we have to look at the legal issues and not get hobbled by such procedural devices.”  Oh, really?  

I just had an appeals ruling where the DA agreed with me that the motion ruling denial needed to be reversed and that I needed to win, and so the outcome is clear, right?  The parties are the dipolar advocates, and the Court is to come down somewhere in between, right?  Uh…, not so fast.  Despite the DA conceding the point, the Court [neutral court?] would not decide the law of the matter, but instead decided we have not raised the point quite enough, so despite the government's concession, we lose – as does Liberty, as does the Constitution. 

Meanwhile, the same appellate court, on an interlocutory appeal I brought against a suppression motion denial wherein we had clearly and repeatedly pled the warrantlessness nature of the drunk driving blood draw as the liberty invasion about which we were complaining [to which the People responded regarding the warrantlessness issue], the DA said in the appeal that they didn’t understand that the issue was warrantlessness [Huh?], so the appeals court reversed the denial with a ruling so opaque that the trial judge asked for clarification [which they refused to supply], but with a gist that since the People didn’t understand the issue, we are to resume the motion hearing where we left off!  Are you kidding me???/! 

The hypocritical double standard on that sort of stuff exposes the truth against any pretense that we are a nation of laws.

Another outrageous position the Courts here advance [although the more "liberal" courts in Texas, South Dakota, Arizona, etc., don't embrace the idiocy] is that our judges are pretending that if a cop says you are “required” to submit to a chemical test when you are arrested for drunk driving, then if you don't tell him to pound sand and go to hell and take a swing at him, you will have been deemed to have “consented” to the blood or urine test by your non-resistance.  Only in California does the polite accession to a cop saying “you are required” translate to “consent,” translate to volitionality, translate to an exception to the warrant clause.  [I can imaging the robe-flapping hue and cry that would utter from the Third Branch if a new rule of court came out saying that from here-on-out judges had to take a urine test before they ascended to the bench every day!]

Judges claim to be apolitical, but in reality there is no branch of government more political than the judiciary, somewhat because their self-ordained aloofness invites them to rationalize not responding to criticism or not explaining their actions [except, of course, in chambers to their cop and DA pals]; they simply proclaim they are apolitical, and the lemmings of the legal world salute and intone “Yes, Your Honor.”  You really think that Bush v. Gore, or Korematsu, or Dred Scott or Plessy were not driven by politics, both of the times and of the people writing the opinions?  If you do, I have a suspension bridge for sale in Joshua Tree, real cheap – suspension of disbelief!

Although organized regional Bars are always holding “judges appreciation nights,” where attorneys invite judges for free food and drink and then gushingly praise them for the quality of their service, those same attorneys will quietly bitch and moan about how they or their clients got victimized by what they label as “ignorant” and “out-of-control” judges.  I never understood that inconsistent hypocrisy.  I don't attend judges' nights, because I cannot gush to those about whom I am disgusted, and when I was on the board of a regional Bar, I blocked holding it.

We have some out and out punks on the bench, little different from street thugs, and they are allowed to grow into that because they have protected themselves from civil liability by court ruling and other responsibilities by custom.

The court ruling that granted that counter-productive and odious and dangerous immunity, Stump v. Sparkman, was in response to a lawsuit against a judge for ordering the illegal sterilization of the female plaintiff; he had no power whatsoever to order that non-noticed, ugly event.  The accordingly childless victim sued the judge for that patent and cruel violation of her rights, and the Supreme Court came to the judge's rescue, agreeing that he had acted illegally, but proclaiming that he could not be sued, because…, well, he's one of us, the anointed black robers!  They manufactured that immunity right then and there.
Of course, the Framers, while discussing governmental immunity, did not award it to judges, nor to the president, nor to CPS workers, nor qualifiedly to cops, but only to members of congress in a narrow setting.  That being the case, they are presumed not to have intended others in government to be immune.  And they didn't.  And they should not be.  And that was the lesson of The Declaration: all were to be equally accountable to the law!

Indeed, the claim in Sparkman that judicial immunity had always existed, citing British Crown cases, is a fraud.  American judges in colonial times were always held civilly and criminally responsible for their injurious missteps.  The Crown cases involved the issue of the absolute immunity of the King himself, whose personal representatives the judges were.  His representatives were immune because he was, not because they were judges. It had nothing to do with the “everyone is responsible” regime established here by the Founders.

The default position in this Republic was to be of Liberty, and against power, and the judiciary was assigned the role to protect those values.  And it increasingly does not; “endorsed by law enforcement” is still the most cherished campaign boast a judge can make.  And they will do anything to be able to make that boast, at the next election, for which they are constantly campaigning.

Does all of this mean there are no decent, good, honorable, bright, balanced, properly motivated judges out there?  No.  Indeed, I am blessed to work with some in Indio, one in Banning, a couple in Joshua Tree, a couple in San Bernardino, one or two in Riverside, a couple in Rancho Cucamonga, and maybe one or two in Murrieta.  It means that the judiciary, as an institution in this state [and many places across the Fruited Plain], does not generally heed its intended calling of protecting the little guy from the big guy [whether he be big government or big business] as intended by the Framers, and there is no mechanism in place to enlighten them to their role, nor would most of the sorts who seek judgeships want to embrace it anyway.

Far, far too many judges are DAs or cops in black robes [even the ones from the public defenders' offices], which frequently results in, to an extent, juristic terrorism.

So, Chief Justice, why should we be eagerly talking up the quality and greatness of the judiciary, when there is little in evidence?  Please explain.

Tuesday, November 11, 2014

Immunity for Government Thugs - The Latest Outrage

If Liberty is really going to reign supreme here, we must dispense with the expansion of immunity for government sorts. The Framers, having the subject matter in discussion, felt that the only governmental immunity that should exist was for federal legislators in narrow circumstances. Article I, sec 6, the Constitution.  That axiomatically means they intended there to be no other immunity from responsibility for wrongful conduct by government.

However, the U.S. Supreme Court first decreed immunity for itself and for other judges, then for their prosecutorial pals, then qualifiedly for cops, then totally for the employers of bad cops [absent unprovable issues], and then for many other government workers and agents.  While the general polity is held responsible in damages for its harmful actions, the government [servants of that polity] can mistreat people with impunity.  And that is partially why we have convictions of innocent people, violent mistreatment of people by cops, searches based on warrants judges should never have issued, searches without warrants that should never occur, outlandish bail settings not justified by any established flight risk, increasing judicial arrogance, etc.

We must reverse the regime of immunity that is freeing up government to be bad, harmful, injurious, mean.

The founding of this Republic had as one of its overarching principles that freedom requires that all to be held responsible for their actions – there were to be no favored groups who could oppress others by right or with impunity, and we must return to that founding doctrine, lest our loudly boasted devotion to Liberty be further sacrificed on the altar of favoritism and privilege and prestige.

The latest outrage by the Supreme Court protecting its constabularial pals is Carroll v. Carman, in which the cops went to a guy’s back door because they saw that people invited to the house had gone there, beat the guy, and when sued they then urged they thought it was okay because they didn’t know any better.  The Supreme Court, showing it is supreme only in the extremeness of its protection of its pals, said the cops were qualifiedly immune, because they could not have known their actions were illegal. http://www.supremecourt.gov/opinions/14pdf/14-212_c07d.pdf

Huh?  There didn’t even need to be an analysis in the case of whether their actions actually violated the Fourth Amendment [they did, because the fact that you specifically invite people to do something does not mean uninvited cops can do the same thing!], because they were allowed to invoke qualified immunity, which is elevating to a constitutional art form the notion that ignorance of the law is an excuse – for cops, not for you or me.


This is rampant and growing police statism, expressly invited and further enabled by the Supreme Court, and it has to stop, or our pretensions of Liberty must cease.