Thursday, February 27, 2014

Liberty Receives Another Blow from SCOTUS

In the new Fernandez v. California, SCOTUS ruled, by 6-3, that if a present cotenant refuses consent to enter the residence [which controls against contrary wishes of another cotenant], if the cops can figure a way to get the refusing person away, then his refusal evaporates for 4th Amendment purposes!  Huh?  Does his duty to make mortgage payments cease if he is taken away?  Then how does his other authority over his residence cease?

Here, after he refused them warrantless entry, the cops "removed" the refuser from his home, and then they had only the meek, mild cotenant to deal with, and she gave in and let them search.  Wow!  I wonder how much these so-called originalists study about the Framers' intents about government invasions of residences when they come up with this police power cockamamie garbage.

A nagging pivotal point needs addressing: "He does not contest the fact that the police had reasonable grounds for removing him from the apartment so that they could speak with Rojas, an apparent victim of domestic violence, outside of petitioner’s potentially intimidating presence. In fact, he does not even contest the existence of probable cause to place him under arrest. We therefore hold that an occupant who is absent due to a lawful detention or arrest stands in the same shoes as an occupant who is absent for any other reason."

This is where his criminal lawyer failed him - he should have contested the warrantless removal from the residence, because there is no DV exception to the warrant clause for residential searches/arrests!  Reaching in and dragging a person out of his residence or commanding him to leave the residence is tantamount to a Payton search and requires a warrant!

Attorneys should NOT forget to object to any warrantless incursions/extractions in this sort of situation.

I love Alito's comment that they won't "extend" Randolph to this situation! Uh, Liberty is not granted [nor extended] by SCOTUS - it inheres in us as a people and is the default position in this Republic, Mr. So-Called "Originalist."

A book that comes to mind here is I. Müller, Hitler’s Justice: The Courts of the Third Reich (D. Schneider trans. 1991 Harvard University Press).  I recommend all who think we have a court that protects us from a rampaging executive to read that - we are living in shades of '30's Germany, yet none dare voice it.  Then read R. Balko, Rise of the Warrior Cop: the Militarization of America's Police Forces (2014), and all will become clear.  Too clear for comfort.

Wednesday, February 12, 2014

Drunk Driving Cops; Jurors Need to Ponder the Downsides and Vote Accordingly

Just so people with badges don't get too self righteous in the presence of jurors, and so jurors and the public think cops are squeaky clean and different from us all when it comes to this political crime, and different from the people they arrest for drunk driving, it is important to realize that cops and others in power do it too.  Does that mean we should demonize the police?  Is that the reason for this comment?  NO.  Neither they nor others arrested for drunk driving should be demonized!

This comment is to remind all that people make mistakes, no matter who they are [Bush, Cheney, and Rumsfeld all had DUI pasts!!!], and we need the system to be more understanding about things when the increasingly political subject of drunk driving is being put into the trial courts.
[Fire Chief]
[Detroit City council president!]
[Detroit officer!]

And there are so many, many more examples/instances.

So, when jurors are given the task of deciding whether they shall find a person guilty of this political crime, which results in heavy penalties, loss of license, sometimes loss of jobs, loss of money, and convictions that can come back to haunt them for a long, long time, they should focus on the fact that all make mistakes, and people and their families should not be saddled with the heavy downsides of those mistakes for long periods.

Contrary to comments by judges and prosecutors, a jury that votes guilty is indeed the cause of the ensuing conviction - but for the vote of guilty, the person would not be convicted, the very definition of legal causation.

So jurors need to ponder whether they want to cause such grief to people, when the very people collecting the evidence and processing it are frequently the victims of the same sort of  demonization that the government seeks for the people on trial.

"But judges say we must vote guilty if...."  No judge in this Republic should ever say anyone MUST vote guilty for anything, regardless of the strength of the evidence.  Moreover, the Framers envisioned that the jury of citizens would be the protection against all of government, the executive, the legislative, and the judicial branches.  And they anticipated that jurors would nullify cases wherein they felt the justice of the matter did not support a conviction, regardless of the technical strength of the evidence.  When judges pretend jurors cannot nullify cases, they are merely revealing thereby why the jury was given the power to do just that - judges like executives and legislators have agendas which citizen jurors must resist, or we otherwise negate the Framers' intent regarding the role of the jury in this Republic, a Republic where sovereignty lies with the people, not with the government.

Wednesday, February 5, 2014

Weak DAs Seek Sanctions Against Lawyers they Fear

The article below seems to be a new tack on the part of DAs' offices, reporting effective attorneys to the State Bar. A very effective DUI lawyer in Santa Barbara was reported to the State Bar for conduct in the courtroom, conduct which results in an embarrassing number of acquittals in prosecutions of the political crime of drunk driving. The problem is that if they start throwing down those gauntlets, they will be hoist on their own Janus-faced petards, because I see reportable misconduct by DAs on a daily basis, but I have always thought it unseemly to rat them off, preferring simply to beat them at the courtroom game that is our calling. I know not the merits involved in this article, but I do know that the attorney under attack is one of the more gifted attorneys in his area, and he will stand stoutly with his client against the gusts of faction, and the gust by this particular DA's office really blows. If I start to pick up this gauntlet, there will be many openings in DAs' ranks!

Read and weep, because there is an unhealthy alliance between prosecutors, judges, and the State Bar in this state, and it must cease, lest "interests of justice" transmogrify into "interests of the power brokers," the definition of Fascism.