Monday, January 30, 2012

Judicial Elections: Pay Attention

          When election season rolls around, especially the presidential election season, there is invariably the discussion of what voters should look for in a candidate for various offices, and virtually all offices are hotly contested – except judicial offices.  Why is that?  In our state, trial court judges have enormous power, and in exercising such, they can do great good or great mischief, and if the latter, it is rarely reversed.
          People’s liberties, property, and lives revolve around what judges do and say, and what they do and say is sometimes [read “too often”] related more to their temperaments than to thoughtful attention to, and understanding of, legal dictates.
          It is a truism that the judiciary, both in Framers’ design and in practice, is an “independent branch” of government, but “independent” does not always translate to “neutral,” even though too many too often, in the academy and in the law, think they are synonymous.  The “independence of the judiciary” had to do with a Framing value that the judiciary was not to be a part of the executive or legislative branches, but was instead to be independent from them and to be its own branch.  It was thought that independence would be one guarantor of neutrality, which is the summum bonum of judicial activity and service.
          But even though we do have an “independent” judiciary in this state, there is nothing neutral about it.  The overwhelming majority of the trial judges in this state, in excess of 90%, are recent former prosecutors.  If you think that makes for a neutral judiciary, think again.
          Most prosecutors spend much of their time distrusting, and plotting against, criminal defendants and their attorneys, and covering up for their cops’ transgressions [unless such become wildly excessive, and sometimes even then].  Like it or not, that is a truism.  So, we are to think that when they suddenly get elevated to the bench, with police and prosecutorial support and endorsements, they magically become neutral?  What do you think is the quid pro quo for the extravagant and widespread support some DA-judges receive from police and prosecutorial and other governmental agencies?  Are you so na├»ve that you think neutrality visits a judge who was the patron of partisanship?
          And everyone is a potential victim of the partisanship of non-neutral judges.  All you have to do is walk into a traffic court sometime and witness the extravagantly pro-cop atmosphere from the bench to have the scales fall from your eyes.  That partisanship exists in most courtrooms, but the higher the category of crime, the more subtle it generally [but not always] is.
          Judges are supposed to be public servants; the public are not their subjects.  And when you are victimized by a rude, arrogant, blustery, overbearing, partisan judge, Lady Liberty sheds a tear.
          Be careful of for whom you vote, and if the person seeking your vote comes at you with a list of government and police and prosecutorial endorsements, you know that you and your family’s liberty would best be served by voting otherwise.  Judging that is not neutral is…, well, not “judging,” but is instead “imposing.”

Tuesday, January 24, 2012

GPS and the Fourth Amendment

               Did the United States Supreme Court really get it right in the new GPS/Fourth Amendment case, United States v. Jones?  And what is “it”?  The opinion is a fragmented affair that might cause more confusion than enlightenment, but for the facts of this case, the conviction was unanimously reversed, even if there was no unanimity regarding the rationale.
          Antoine Jones was suspected of being a drug dealer in the Washington, DC, area, so the cops furtively installed a GPS device on his car [and then replaced the batteries some time later] and monitored his movements 24 hours a day for 28 days.  This was done without a warrant.  Or more accurately, a warrant had been issued in Washington, but it ran out before the GPS was installed, and the installation was in Maryland.

          From monitoring his movements, the cops generated a 2000 page log, which included evidence that he [or the car!] visited a “stash house” where $850,000 and 97 kilos of cocaine were later found.  He was accordingly tried and convicted of a drug trafficking conspiracy and was sentenced to life in prison.  He had brought  a suppression motion in the trial court, alleging that the installation and monitoring of the GPS by the cops violated his Fourth Amendment rights, and that was denied.  The DC circuit court ruled that the conviction needed to be reversed because of the warrantless installation and monitoring of the GPS device.

          There emerged three schools of thought on the high court, the Scalia view that the Framers would have deemed the installation a trespass [for 4 justices, with Sotomayor joining for the result, focusing on the “effects” clause]; the Alito view that one might have a reasonable expectation of privacy that his movements would not be so microscopically analyzed and recorded and used in court [4 justices, focusing on later “privacy” rationales]; and the Sotomayor view that both the installation and the extended monitoring violated the Fourth Amendment privacy and effects standards and that we might have to rethink whether we lose that protection when communicated to third parties in this digital age [for only herself, but joining Scalia for a fifth vote on his effects rationale].

          So, there is the initial attachment school [Scalia], the extensive monitoring school [Alito], and the combined with expansion view [Sotomayor].  What is clear, though, is that all schools of thought, for this case, found that the Fourth Amendment was violated by the cops for not having obtained a warrant.

          What is not fleshed out, notwithstanding the professed “originalism” approach of Scalia, which was sharply and comically debated by Alito, is that the modern “proactive” constabulary which is all over the place, trying to justify its existence daily by playing “Gotcha!” on the public, hiding in the shadows and at intersections and in the bushes and at temporary check points to “find” crime to then suppress, is foreign to the intent of the Framers.

          The King had his proactive agents here, doing what our cops do, harassing, snooping, searching, seizing, arresting, and the Founding Fathers said “get out.”  That is the meaning of complaint number 10 of the Declaration of Independence: “He has erected a Multitude of new Officers, and sent hither Swarms of Officers to harass our People, and eat out their substance.”  Proactive constabulary was inconsistent with the regime of liberty being installed here, and it did not revisit our shores and streets until after the Civil War, during which cataclysm Lincoln proved that cries of “war” and “emergency” would invite rationalized erosion in constitutional limitations and would empower the executive at the expense of the other branches, and would expand “security” and “power” at the expense of liberty.

          So now, we have to invite and discover more searching assessments of how to invoke the Constitution to protect people’s liberties that are eroded by an unintended excrescence increasingly bursting forth on our body politic, the proactive constabulary.  That is, we need Scalia and Alito and Sotomayor in our courts because we no longer have Thomas Jefferson and James Madison in our collective souls.  We are a police state, and thank God the Courts are finally coming around to that understanding.

          And let’s face it, the cops have no trouble getting some obsequious and genuflecting magistrate to issue a warrant for virtually anything they want to do; they have just become so arrogant that they do not want to ask for permission and to put forth justifications for their depredations.  We need to get this system of liberty under control, or else our sloth will result in us losing control, and education about the founding premises of the Republic, and then a resolve to embrace those premises, is what is, but all that is, needed.

Friday, January 13, 2012

Drunk Driving Enforcement Scams - Field Sobriety Tests

We have written and lectured here and many elsewheres about the fraud associated with drunk driving enforcement, and one prejudicial tool the government uses to regrettably good effect, especially with naive judges and jurors, is the field sobriety test [FST]. In the following news presentation, you see my old friend, DUI attorney Bruce Kapsack, revealing some of the fraud associated with FSTs; the cop himself could not "pass" the test:

What people cannot get through their heads, sometimes because they do not want to do so, is that there is no established scientific correlation between one's performance on an FST and impairment by alcohol - none.  These are stunts purposely designed to prejudice judges and juries against an individual, because DUI convictions are very profitable for the government and satellite operations [rehab., ankle-monitoring businesses, devices to install in your cars to detect whether you have consumed alcohol, etc.].

The "science" behind FSTs and what they factually reveal are not much different from my saying "Uh, everyone I have ever seen who was impaired by alcohol could not stand on his head and whistle the 'Battle Hymn of the Republic'; you cannot stand on your head and whistle the 'Battle Hymn of the Republic'; therefore, you are impaired by alcohol."  Good Grief!  How many of you prospective jurors would fall for that?  If you have ever even leaned toward convicting someone because of FSTs, then you would fall for that, if a shiny-badged cop told you that was his "training."

Be not deceived merely because the deceiver arrives with pressed uniform, creased pants, shiny badge, big gun, and sincerity on his visage.

Friday, January 6, 2012

Prosecutorial Corrpution, like the Energizer Bunny, Just Keeps on Going!

This is from the Huffington Post, and it calls to mind instances when people ask me why I have diminishing respect for law enforcement and for prosecutors and for the criminal justice system.

We keep hearing discussions about originalism and the intent of the Framers and what the founding fathers meant and would do about various things in society, and one of the things they would not have tolerated is the current system in which judges and prosecutors have absolute immunity, and cops have qualified immunity, for their injurious official deeds.

In colonial times, if judges or prosecutors did things that injured citizens in the courts, they could be sued [and arrested] for that.  And proactive policing didn’t even exist, after that excrescence on the body of the law was evicted in the Declaration of Independence.

But now, the U.S. Supreme Court has protected itself and its fellow judges, and its prosecutorial chums, with absolute immunity [pretending that such inheres in the meaning of, and is an incident of, sovereign immunity, which is bogus], and it protects its constabularial chums with qualified immunity [the poor law enforcers should not be liable if they did not know their enforcement of the law was illegal!], which invites the sort of outrage reported below.  And it happens all the time; there is rampant corruption in the administration of justice system, because its administrators are not held responsible for their transgressions.

Where else are people given carte blanche to injure others without liability?  Only in government, and it must stop, and it must stop now.

The legislature, state and national, must immediately put a halt to all immunities for government actors.  Part of the premise underlying the revolution in 1776 is that no one is above the law, no one is better than others in accountability, there are no elites, we are all equal in accountability for transgressions.  So how have we let the judges proclaim first their own immunity, and then that of their governmental chums?  It must stop, lest the outrages described below increasingly become the norm.

The Brady rule discussed in the item below is taught in all law schools and it is a talismanic component of American constitutional law, and has been literally for decades, but not long ago, the Supreme Court, ever protective of its prosecutorial chums, excused prosecutors for not knowing it, when an issue of accountability for its violation was before them.  The Brady rule is to prosecutorial duties what the periodic table is to a chemistry practitioner, and they were excused for their ignorance of it?  We creep closer to the abyss, and when we eventually peer into it, it shall peer into us.

Prosecutors Gone Wild: How Many Wrongful Convictions Will the Public Stand for? [Conrad Black, to the Huffington Post]

Posted: 1/6/12 08:07 AM ET

Even casual samplers of the media now come across colossal injustices and failures in the U.S. justice criminal system every two weeks or so. Yet these stories, everyone a heart-breaking recitation of how willful prosecution misconduct has ruined a life or a family, with no consequences at all to whoever has abused his great powers as a prosecutor, seem never to elicit any particular public response or gain any traction for review or reform.

It is an achievement just to pierce the eagerness of most of the media to be a stentorian Hallelujah chorus for law and order paranoia.

The latest such incident is the lamentable affair in Texas in which Michael Morton was accused and convicted of murdering his wife, spent 25 years in prison, has been exonerated because of DNA evidence that was withheld from the trial by prosecutors, and another suspect has now been arrested and charged. Mistakes happen, are not rare, and provide one of the strongest arguments against the death penalty. 
What makes this more worrisome than a sad story of a no-fault miscarriage of justice, are strong allegations that the prosecutors, Ken Anderson, now a state judge, and Mike Davis, deliberately sandbagged Morton by unlawfully withholding evidence.

It is alleged that Anderson withheld police notes that someone else committed the murder, did not provide the full police report, including evidence of activity on Mrs. Morton's credit card after Mr. Morton had been taken into custody; and that Anderson advised his successor as prosecutor "to oppose all of Mr. Morton's post-conviction motions for DNA testing."
Morton and his counsel have been assisted by the Innocence Foundation, which specializes in using DNA evidence to seek the exoneration of convicts. It and like-minded groups have sometimes been harassed by prosecutors and threatened with charges of obstructing justice. Innocence and Morton's own counsel claim that in this case Anderson disobeyed "a direct order from the trial court to produce the exculpatory police reports from the lead investigator," (a claim the investigator himself corroborates). Morton and his counsel have asked for a "court of inquiry" to determine whether Anderson and Davis should be charged criminally for abetting what they knew to be a false conviction.

For the purposes of determining wrongdoing, the Texas attorney general became the special prosecutor, and the spokesman for the attorney general declined to reply to questions about a possible conflict of interest. Anderson and Davis at first refused to give depositions or answer subpoenas, but when overwhelmed by decisions validating Morton's right to know more, Anderson said he felt "sick" about what had happened, but explained, as if it mitigated responsibility or the gravity of what occurred, that "prosecutors are under a lot of pressure to convict." Davis claimed to be only an "innocent bystander" between Morton and Anderson, an unusual posture for a prosecutor in his own case.

The issue is whether prosecutors are under any requirement at all to comply with defendants' constitutional rights to due process and a fair trial, or if there is no sanction at all for their violation of those rights. In a well-publicized Arkansas case last year, three men who had been in prison for 17 years, one on death row, for a murder for which they were ultimately exonerated, could only negotiate themselves to freedom by pleading guilty to a lesser offense for which they were released for time served. But by pre-arrangement, they recounted to the court that it was a false plea, that they were not guilty of anything, and that they were only going through this charade to restart their lives as free men as quickly as possible. The episode was reported almost without comment even in the liberal national media.

Prosecutors have practically untrammeled discretion in deciding what to charge, how many counts to allege, and a very wide latitude in sentences sought. Grand juries are just a rubber stamp for prosecutors, and contrary to the spirit of the Fifth Amendment, provide absolutely no assurance against capricious prosecution. But complicity in or direct causation of the lengthy incarceration of falsely accused and convicted people, not to be confused with honest error and misplaced zeal, is a terribly serious offense and is so treated in every other serious jurisdiction except the U.S.

The Brady Rule, enunciated by the U.S. Supreme Court in 1963, requires prosecutors to disclose evidence favorable to defendants. But failure to do so is rarely discovered and almost never punished when it is unearthed. In the infamous case of Senator Ted Stevens of Alaska, it was revealed that the prosecutors had withheld evidence that they knew to be exculpatory, causing the senator's conviction and narrow electoral defeat, before the whole case was blown up as unjust.

Yet the court-appointed inquiry did not recommend criminal proceedings against the prosecutors for professional misconduct because the trial judge had not told the prosecutors that they had to obey the law. This is utterly spurious, of course, but especially so as the transcript reveals that the prosecutors responded to a request from senator Stevens' defense team for a motion so ordering them, that it was unnecessary because they would of course not break the law. (The report expressed no opinion about charging the prosecutors with obstruction of justice.)

The legal profession in the United States is a professional cartel where legislating lawyers and regulators produce thousands of new enforceable laws and regulations every year; judges, prosecutors, and private sector counsel lock arms to ensure that legal invoices, (which total almost 10 per cent of GDP -- almost $1.4 trillion annually), are paid as a priority surpassed only by the claims of government.

Unlimited incidences of what other legally serious countries would consider frivolous or vexatious litigation clog the civil courts, and prosecutors enjoy a stacked evidentiary and procedural deck which gives them a success rate in prosecutions of over 90 per cent. (The corresponding figure in Canada is about 65 per cent, and only about 40 per cent of those receive custodial sentences.)

The United States has just five per cent of the world's population, 25 per cent of its incarcerated people, and 50 per cent of its lawyers. The U.S. Supreme Court is unvaryingly proud to try law and not fact, and is thus ostentatiously uninterested in a just result as such, in the unutterably irritating and desiccated way of people who profess indifference to the control they exercise over the fate of real people.

Last year, in the case of John Thompson, a man who spent 14 years on death row for a crime of which he was eventually exonerated, after a shocking sequence of prosecution acts of deceit, the Supreme Court conferred what amounted to an absolute immunity for prosecutors from civil recourse for their actions. Justice Thomas, for the court majority, explained that the "attorney (including a prosecutor) who violates his or her ethical (obligations) is subject to professional discipline, including sanctions, suspension, and disbarment." The justice knows what a fatuous bit of dissembling this is, as the legal cartel locks arms to assist its members to escape responsibility for all but the most egregious crimes. (Justice Ginsburg's opinion for the dissenters was very cogent.)

In any other legally serious country, the Morton-like cases would incite public outrage. In the Morton case, Judge Sid Harle, in releasing Morton after 25 years of wrongful imprisonment caused by prosecution dishonesty, expressed his "sympathies" for Morton, but said his release proved that the United States "has the best justice system in the world."

In fact, it is a frequently evil and generally defective system that thrives on complacency. Republicans have even delayed Senator Jim Webb's proposal to establish a blue ribbon commission to review stratospheric American incarceration rates.

In the United States, even the staggering 48 million people with a "record" seem not to care. The media, in their lust to amplify the publicization of crime and incite paranoia, have brain-washed from public memory the ragged bourgeois, constitutional, heirloom of the presumption of innocence.

Next to the electoral accountability of government officials, the two greatest pillars of democratic civilization are the rule of law and a free press. By giving the press, in theNew York Times and Sullivan, an almost absolute immunity against defamation actions, and the prosecution service an almost absolute immunity from responsibility for its own lawlessness, the Supreme Court has detonated high explosives under the foundations of American civilization.

Needless to add, the justices enjoy life sinecures in their August offices, and have generally avoided the well-earned public contempt that now largely attaches to the Congress and most of the administration. The law is a very spavined ass, and the sooner the public realizes this and determines that something must be done about it, the better it will be for everyone.