Monday, January 21, 2013

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.

Tuesday, January 15, 2013

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. 

Tuesday, January 1, 2013

DUI Checkpoint Madness and Hypocrisy

‘Tis the season for people to again get screwed by the local gendarmes with their grant-funded mass seizures, known with more tasteful sound as DUI Checkpoints.  The unappreciated irony of these mass seizures, of which courts are apparently ignorant, is that it is the clear law that a single individual cannot be warrantlessly seized by government without individualized suspicion rising at least to the level of a “reasonable suspicion” that is supported by trial-quality admissible evidence, yet masses of people can be seized without any individualized suspicion and without any evidence of any quality.  Huh??  That is tantamount to posing that even though murder of one person by one person is illegal, mass murder of hundreds or thousands by that same individual is okay!  Only in America, the land of self-touted and imagined “exceptionalism,” could that irrational idiocy be enshrined as constitutional law.

As we have warned before, and will continue to do so, the motoring public needs to prepare itself for those pesky DUI checkpoints, because those liberty infringement devices are increasingly the rage in local law enforcement.  They are not popular with police agencies because they are effective, because statistically they are not.  They are popular because they are funded by grant moneys from Sacramento, that come from Washington, DC, that had been taken from us back here; it is a big, costly circle that your and my money has traveled in with which to then screw over you.  In the name of “justice.”

The grant system is one of the greatest evils in policing, because grants are essentially a political bounty for pressing certain types of cases; the merit of the case does not matter; the filthy lucre funding its processing drives the affair.  And nowhere is the evil more manifest than in drunk driving, DUI, DWI, or whatever the label.

MADD, the lineal descendants of the Women’s Christian Temperance Union of old, which gave us Prohibition and the 18th Amendment, are furious that the 21st Amendment repealed Prohibition, but their neo-Prohibitionism is even more dangerous than its ancestor oppression.  They have, with phony statistics and threats of placard-laced demonstrations, conned or intimidated legislators, judges, DAs, and cops into increasing harshness regarding drunk driving, and so they all lose their soul in the evil bargain.  One of the most illicit aspects of MADD vis-à-vis checkpoints is that some checkpoint commanders allow those pernicious lobbyists to hand out their propaganda to motorists who have been warrantlessly detained by the cops.

When one of the commanders confessed, on my cross-examination, to having allowed MADD to capitalize on the warrantless detentions to disseminate their bilge, I inquired if he would allow me to set up a table to hand out accurate information about the lack of peer-reviewed scientific support for field sobriety tests and the objective “symptoms” so excessively relied upon by the police, who snooker unsuspecting and naïve jurors into believing that any of those “indicators” have anything to do with alcohol impairment, and he said he would not.  What a surprise! 

So, the government is using warrantless liberty invasions not only to collect damning evidence, but also to indoctrinate the motoring public with falsehoods regarding alcohol impairment.  One thing perhaps more clear in our founding principles than that individually suspicionless liberty invasions are unconstitutional is that government action on or against speech must be content neutral, at a minimum, or it is unconstitutional.  However here, checkpoints are not only individually suspicionless, but also employed to propagate content-based [and false!] propaganda, and few seem to see the problem!  Some of the same people who would veritably weep at the passing of the Red, White, and Blue at 4th of July parades do not understand that these checkpoints tatter the talismanic raiment.

So, how does this pernicious regime of liberty obliteration exist, and seemingly grow?  The truth of the matter is that government makes a bundle from drunk driving, between the block grant moneys from DC, to the penalty assessments on the fines [now about 400% of the base fine, if not more], to the various fees, to the costs of the rehabilitation programs, to the need for more DAs and judges to try the matters and more cops to initiate them.  The fiscal corruption underlying DUI investigation and enforcement would make Bernie Madoff look like Mother Teresa in comparison.

“But what of the dangers of drunk driving?”  Garbage!  The system, at the insistence of the pushy harpies from MADD, have created the category of “alcohol-related [accidents, deaths, incidents, etc.]” in place of drunk-driver-caused [same],” because the incidence of things being actually caused by drunk drivers is miniscule, and that truth would undermine their political agenda.  But an event earns a place in the stats as being “alcohol-related” if a sober driver hits a drunk pedestrian; if a sober driver’s drunk uncle in the back seat is thrown out when the car flips over because its tire fell off; if a drunk driver is sitting lawfully at a light and a sober driver negligently runs into him; etc.; that category has nothing to do with who caused what.  Yet those “alcohol-related” stats are the ones that supply the pneumatic numbers that make everyone go nuts about drunk driving.

Drunk driver “caused” accidents are in single digit %-ages, which would not help the MADD harpies, nor the block grant ghouls, nor the legions of government vultures who profit from DUI enforcement and prosecution and conviction.

So, what of checkpoints – they are legal, are they not?  Well, it all depends on what you mean by legal.  The Framers would not have tolerated such a suspicionless invasion of privacy.  As Justice Clarence Thomas, a student of the Constitution whose scholarship on the subject is almost as faithful and pure as mine, has opined, “I rather doubt that the Framers of the Fourth Amendment would have considered ‘reasonable’ a program of indiscriminate stops of individuals not suspected of wrongdoing.”  But, you see, most judges, even up to the U.S. Supreme Court, are politicians; few are scholars, and even fewer are faithful to the Founding principles.

And those politician judges have decreed that a properly erected and run[!] checkpoint is “legal,” just as other politicians have found it beneficial to set up the scheme in the first place.  But they do have to be properly erected and run, and very few are so, even for the watered down constitutional “standards” of the neo-Prohibitionist judges.

But beware, if you drive through one.  First off, watch, look, and listen, and if you see one ahead, turn off; that is legal, if you make a lawful turning maneuver.  Don’t give the constabularial ghouls the opportunity to tell you to stop, tell you to wait, tell you to go, tell you to blow into their hands, command you to answer questions, etc.  You see, that is part of what is going on here.  Cops like the checkpoints, whether they get any arrests out of them or not, because they then have the chance to play “we’re the Man; we’re in charge of your freedom” to the citizens thus stopped and inconvenienced.  This is an incident of police statism, not public safety.  This is power, not protection.

The fact of the matter is that communities that do not receive these grant funds do not do checkpoints; they will not have them on their own dime, because checkpoints return miniscule results for the efforts expended.  There might be 500-800 citizens stopped while going about their business, and from that will come only 1-3 DUI arrests, if that many; one in Yucca Valley just stopped over 1,100 motorists, and found not one drunk driver!  A recent one in Palm Springs inconvenienced over 350 motorists, and garnered not one DUI.  Every police chief worth his stars [and some wear five, like General of the Army Douglas MacArthur; most merely four, like General George Patton!] will confess that saturation patrols are far, far more effective in apprehending drunk drivers than are checkpoints.

So, first try to avoid it by turning off.  If you are in one and get approached, hand over your license and registration and proof of insurance [but only if and when requested] and say you do not want to talk, period.  You don’t have to talk; you don’t have to say where you are coming from or going to or whether you have had anything to drink.  Decline to say anything.

If they then shunt you over to the investigation line, be polite, but answer no questions, say nothing, and do not perform any objective symptom tests [field sobriety]   you have a right to refuse, and politely do so, on advice of counsel, this counsel!  Moreover, politely refuse to perform the “preliminary alcohol screening” test [PAS]. 

If you are arrested, of course, you have to submit to a breath or blood test.  Ask for breath, and then ask for a back-up urine test, which is your right.  When they say you cannot have a back-up urine test, politely request that the officer record that you have requested it.  Then say nothing else.  Anything you say to the police can and will be used against you, either in the order you said it, or in any excerpted order that helps their case.  The cops are not there to help you.  They are there to put DUI cases together.  They make money by putting cases together; they make nothing by being nice to you and letting you go, so they will not, so don’t demean yourself by asking.  Ever.

Checkpoints are tyranny, DUI arrests and convictions are the product of evil maneuvers by purposeful people, maneuvers “supported” by voodoo science that would not be admissible in any other sort of case, and all aspects of both the stop and of the prosecution are fightable.  Do not cave in, or else evil people will thereby be emboldened to harass others. We must increase the cost of evil to decrease its incidence, a fundamental economic formula.

If you do get snagged, though, there are things to be done, since you have the right lawyer.  Call me, if your trouble is in the Inland Empire [Palm Springs, Indio, Coachella Valley, Banning, Joshua Tree, Victorville, Needles, Blythe, Riverside, San Bernardino, Murrieta, Rancho Cucamonga, etc.].  Make sure you do not try to defend yourself in such a matter, because the complexity of the task, properly carried out, is of the order of magnitude of a medium level operation on one’s brain.  If you would not think of taking a portable electric drill and auguring into your skull if you needed brain surgery, then don’t presume to handle your own DUI charge.

I was amused [although maybe not in a cheery “Ha-Ha!” sort of way] that, when I was running for judge in Riverside County recently [inspired to do so because there was an unacceptable dearth of courageous, scholarly neutrality on the trial bench, and there still is, and the problem grows!], a crackpot commentator on one of the local news radio stations said, about me, in a somewhat derogatory tone revealing thereby the ignorance of the speaker, “Oh, he’s the one who writes a lot about drunk driving.”  Well, yes, I do. 

You see, drunk driving, being a political crime with headwinds churned by the purposeful agenda-driven malevolence of those fanning flames of prejudice clothed in self-righteousness, is by far the most difficult sort of case for assuring that the presumption of innocence reigns supreme.  No other sort of crime has billboards and street signs and “public service announcements” infecting the potential jury pool everywhere one looks and listens.  “Don’t drink and drive,” and “dial 9-1-1 if you see a drunk driver,” and “buzzed driving is drunk driving” are seen and heard everywhere.  You don’t see and hear the same ubiquitous public, and publicly funded, exhortations against child molest, murder, spousal battery, residential burglary, police corruption, etc., all of which are far greater threats to public safety than is drunk driving.  Why not?  Because the political hysteria whipped up by neo-Prohibitionists like MADD, SADD, etc., pressing an agenda with fraudulent statistics and pseudo-science, has effectively captured the attention, and ignorance-bred appreciation, of a naïve public and of purposeful and self-regarding politicians [which includes judges].

So, back-alley politicians enact increasingly restrictive and oppressive measures to get the political support of MADD, and black-robed politicians allow the introduction of a quality of evidence that would not be allowed in any other, non-politically driven crime.  Field sobriety tests [FSTs], such as walking straight lines, touching noses, standing on one leg, tilting head back with eyes closed, etc., look and sound impressive and carry an aura of authoritative scientific insight.  But there is no neutral, peer-reviewed scientific correlation between any of them and impairment by alcohol!  None!  So, who cares if the cop administers them correctly or not, or if the suspect performed them as instructed?  They mean nothing.  It would be as if I told a person to stand on his head and whistle The Battle Hymn of the Republic, and then scolded him for whistling it out of tune!  But judges let the garbage in, despite that every neutral expert who competently and truthfully testifies in the very case in which the judge admits the evidence that there is no scientific correlation between performance and impairment.

And the phony-baloney breath tests: they detect not alcohol but a carbon=hydrogen bond characteristic of alcohol, but also of several hundred other things, and the alcohol they are supposedly detecting in expelled air comes not only from the lungs, where there is the supposed equilibrium between the air and the alcohol in the blood that invites the flawed inference that the blood alcohol can be determined from breath numbers, but also from molecules trapped in the mucus membranes between the lungs and the lips.  That is, it is a farce to suggest that breath devices detect and report anything accurately.  And every neutral scientist who knows anything about the subject will tell you so, but the scientific invalidity of the enterprise does not generate even the slightest hesitation on the part of the judges to admit the evidence.  Then too, most blood tests are infected by problems of collection, storage, and analysis too numerous and complex to digest here, but their results are rarely any more accurate than the unreliable breath tests.  Or, rather, they might be accurate, but not of what a person’s true blood alcohol amount was, especially at the time of driving.

Indeed, because of the politics of the matter, judges have crafted drunk driving exceptions to the U.S. Constitution’s 4th, 5th, 6th, and 8th amendments, and to its due process and ex post facto clauses, and I suspect a DUI exception to the 2d Amendment is right around the corner; and there is a DUI exception to common law evidence admission standards, as partially discussed above.

I have always been there to defend victims of bullying tactics, especially when the bully is government, and that animates my writing on the subject.

The second and related reason I write so much about drunk driving is due to the fact that the political headwinds against the individual make, in my estimation, the DUI defense Bar the most competent group of constitutional defense attorneys out there, and I enjoy interacting with the most competent of my craft by presenting thoughtful commentary, which then sparks further edifying commentary in the profession, inviting intellectual growth.  Truth be known, not even the best murder defense attorney knows how to competently handle a drunk driving case without further preparation and thought; however, the better of the DUI defense attorneys can hit the ground running on any other criminal matter, including murder.  I know, since I do both sorts of constitutional defense, unlike many of the DUI Bar, and I have learned from that which is really the hardest task in my craft.

So, yes, Mr. Reactionary Radio Commentator, I have written much about drunk driving, and, until the Republic is restored, I shall continue to do so.

My wishes for the New Year?  Among the things I would like to see in 2013 includes a hope that: (1) Courts will start to act with neutrality, balance, scholarship, and with a renewed understanding that the function of the judiciary in this Republic is to protect individuals from overweening government and to not become one of the overweeners itself; and (2) citizens called to sit as jurors will truly and faithfully apply a presumption of innocence in all cases and shall assess matters with the institutional skepticism that is part and parcel of the government’s requirement to prove its case beyond a reasonable doubt in all of its particulars; and (3) legislators will no longer fall all over themselves to placate agenda-driven political extremists, on this subject of endeavor and in all things.

Liberty is the ascendant value here; the default position.  And it trumps the power value in all things.  Those who want power to be the default position, police power extremists often donning the mantle of conservatism but in truth operating as statists, should move to Cuba or Venezuela.

I do not endorse, support, embrace drunk driving.  I likewise do not endorse, support, embrace a government so drunk on power that it tinkers with constitutional and other legal norms to demonize easy targets.  This contra-constitutional practice must stop, lest our Janus-faced hypocrisy, already at odds with our arrogant, self-professed international “exceptionalism,” grow ever larger.