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

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.

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.

The Tyranny of the Courts Regarding McNeely and Warrantless Chemical Collections

Although I have written elsewhere about the drunk driving exceptions to the Constitution and to various evidentiary and statutory and customary norms, there is a growing evil in our courts on a critical drunk driving issue, and liberty lies in the balance.

In 1966, the U.S. Supreme Court [SCOTUS] ruled, in Schmerber v. California, that a warrant is presumptively required for blood draws from people arrested for drunk driving because the integrity of the human body is at least as inviolate as a residence from a standpoint of governmental invasion, and warrants are presumptively required for searches of residences.  Of course, proven exigencies could excuse the warrant requirement for chemical testing of the human body just as in residential searches, but the urged evanescence of alcohol in the human blood stream did not suffice as that warrant-detouring exigency.

Because of the drunk driving exception to the Constitution, however, many states, including California, pretended that Schmerber didn’t say what it said, and they started flouting  SCOTUS’s constitutional rules on the point, not unlike the “Jim Crow” judges of the old South who flouted equal protection rulings.

Fast forward to 2013, and SCOTUS reiterated the Schmerber rule in a new case, Missouri v. McNeely, reminding all that a warrant is presumptively required for those invasive searches [which in the interim SCOTUS held includes breath and urine testing].

California [and a couple of other jurisdictions] feigned surprise: “Whaaat? – we thought that evanescence alone justified the invasion, which is why we have warrantlessly done so for 40 years!”  The law was clear then, and clear now, as is the hypocrisy of the California Courts on the subject matter.  They take their hypocrisy a step further: “And because we thought it was ok, don’t punish our poor policemen by suppressing the fruits of their 47 year old illegalities, because they didn’t know.  Honest!”  Wonderful, ignorance of the law is a defense for law enforcers and for law adjudicators, but not for the folks on the street.

One of the biggest devices the courts are employing to detour the clear warrant rule is the state statutory, administrative oxymoron “implied consent.”  You see, the fiction is manufactured, from whole cloth, that motorists are deemed to have given their “consent” to chemical testing by the virtue of obtaining a driver’s license or of driving on the public roads.  Huh?  “Deemed”?  Yep.

The problem for an honest government would be that state statutory rules do not define federal constitutional rights.  Moreover, something that is “deemed” is not the product of arms length’s agreements, required in true consent matters.  And McNeely said there will be no per se detours around the warrant clause, and applying “implied consent” across the board as that detour is a per se rule, which SCOTUS forbids.

It is notable that Missouri has the same implied consent statute we do, but the SCOTUS plurality merely nodded in its direction, not giving it any weight, while writing on for many pages about the warrant requirement. Many want to urge that it was because the defendant refused in McNeely that the opinion needed to be written, but (a) if you are deemed, in the past tense, to have done something, you cannot undo it in the present tense, and (b) SCOTUS did not hold that the refusal was a revocation of Fourth Amendment consent in that case.  Why?  Because everyone knows that “implied consent” is not Fourth Amendment consent.

McNeely does not hold that a warrant is required only if one refuses; it holds that a warrant is required, absent established justification otherwise, established by evidence.

It should also be noted, as does one of the many helpful Texas cases, that the “implied consent” language nowhere provides that a warrantless extraction is permitted.  Nor could it, since SCOTUS decides federal constitutional law, not state legislatures [as the “Jim Crow” judicial tyrants finally found out].  Then too, the limited “implied consent” nod in McNeely was not joined in by the majority of the court anyway.

One of the great ironies in this discussion is that the courts of the Death Penalty Capital of the World, Texas, fully understand that “implied consent” is not Fourth Amendment consent.  Texas, Colorado, South Dakota, and other places have sided with liberty in this liberty vs power debate, understanding that SCOTUS has held that warrants are required, and that state statutory doctrines cannot eviscerate that.  Texas in particular did not like the McNeely rule, but when their implied consent appeals case was remanded by SCOTUS to reconsider in the wake of McNeely, the state courts saluted and have deferred, requiring warrants for drunk driving blood extractions, and suppressing evidence where none have been produced.

Our state, however, is quite, quite different on the liberty debate.  I just got a ruling against me on a clear McNeely matter based on a Maryland federal district court ruling that they dredged up.  They had to leap over clear appellate rulings in Texas, Colorado, and elsewhere favoring individuals to scratch around and find that non-precedental trial court ruling [not even an appeals case!] to steal my client’s liberty!  That is obscene!  And worse. 

Courts are not supposed to decide in advance what they want their destination to be and then search around until they can find authority that appears to support that that pre-ordained destination!  Result-orientedness has no place in the hall of justice.

Because of this state thumbing its nose at SCOTUS for 47 years, in many of the opinions and motions they are allowing the cops to invoke the “good faith” exception [always in quotes because they know it is not!], which the Nixon justices-led SCOTUS from the ‘70’s claims has the “sole ground” of deterrence and of educating the cops.  Excludability of fetid evidence was not part of the Fourth Amendment but merely an appendage manufactured by the Court, goes the story.  That is utterly fallacious.

The early Courts understood that the Fourth Amendment was so inviolate and protective of people’s liberties and security that cases could be dismissed, habeas could issue, evidence could be excluded, government agents could be arrested and sued, and judges could be sued for allowing its violation.  There was no manufactured “rule,” nor one with a “sole ground” of taking care of cops.  Violating the Fourth Amendment was the same as violating the 5^th, 6^th, or due process clauses: the fruits could not come into the courts, due to the imperative of judicial integrity.  SCOTUS has deftly eliminated habeas, case dismissal, suing the judges, arresting the cops, and have granted limited immunity from suit to their cops for Fourth Amendment violations.  While we pretend to be advancing liberty for peoples elsewhere in the world, we have slowly ratcheted down liberty for our own people.

Justice Alito’s latest proclamation that the “rule” was “created” by the court with that “sole ground” should invite protestations beginning with “Liar, liar, pants on fire!,” but it has not.

The general ignorance of the public, and of legal practitioners, of the constitutional history and theorems of this Republic is allowing courts to make outlandish constitutional claims with impunity, and those claims are always in the direction favoring power and against liberty.

The tyrannies and terrorisms we see thousands of miles across the seas, in foreign lands, are nowhere nearly the threat to us as are the tyrannies and terrorisms practiced on us by our own government, especially the courts, and our silence allows it to grow and metastasize until the organism is consumed.

 

The Politics of Drunk Driving; Some Thoughts and Concerns

There is no area of the law in the modern era that is more driven by political pressures and agendas than the area of drunk driving. [I had one judge who was apoplectic about mentioning the term "drunk driving," because the statutory offense is "driving under the influence of alcohol," not "drunk driving"! Give me a break: the Vehicle Code lists it as drunk driving, the Mothers Against ... list it at drunk driving, the appeals and supreme courts refer to the topic as drunk driving, the billboards and other government propaganda label it "drunk driving," etc.  Indeed, so unhinged was he that we had to label, over my strident objection, MADD as "Mothers Against Drinking Drivers."  The hysteria in his mind about calling it "drunk driving" is part of the politics of the enterprise.]

 

When I say "modern era," I am calling to mind the obvious comparison from days of old to the Salem Witch Trials, wherein 17 women, two men, and a dog were executed for witchcraft on that same sort of hysteria-driven ignorance and suspicions and fears and self-serving pressures by evil people that visit the subject of drunk driving now.

 

The most disappointing and ominous aspect of this area of endeavor is that jurors, citizens from the community who are supposed to protect us all from overweening government, fall prey to the suasions of government, and their laughably programmed and scientifically incompetent "criminalists" who will testify to whatever their governmental masters need while dressing their perfidies up in seductive scientific jargon. I got one who testified that "everyone is impaired at .08%" to confess that there was a time she would have testified that "everyone is impaired at .10%," because that was the law then, and at ".15%," because that was the law then.  She agreed that there has not been an evolution in the human organism over that short a period that changed what is its "impairment," but only a change in the law, and she works for the law.  Wow - unusual honesty by a government criminalist, and it was probably accidental. 

 

In no other area of law would we allow the self-serving governmental hackism that visits a drunk driving trial to infect the evidentiary stage.  But jurors become seduced by the testimonial self-righteousness of the shiny badged cop and by the pseudo-science of the earnest hack, and they cannot perceive that they are being led down a primrose path whose careless thorniness will eventually come back to haunt them, and us all.

 

No other crime is the subject of such government propaganda as is drunk driving.  No other crime has as powerful and pushy lobbyists as we see with the neo-prohibitionist MADD and related organizations as drunk driving.  No other crime has so rigidly tied the hands of sentencing judges as does drunk driving.  No other crime has as harsh an escalating recidivism scale as drunk driving, where misdemeanors can readily morph to felonies on the 4th go-around. No other crime causes those alleged to have committed it to give up and plead guilty to the alarming extent that we see with drunk driving.  No other crime has the extensive governmental propaganda of bill boards and street signs decrying its commission as we see with drunk driving.  No other crime has generated the dramatic exceptions to constitutional and statutory protective rights that we see with drunk driving.

 

Jurors have to start to resist this reactionary outrage by understanding that it is all smoke and mirrors.  The stats are manufactured; the science is akin to voodoo, and the harm to the victims of prosecution is incalculable.  Yes, yes, there are people injured by drunk drivers - just as there are, in far greater scale, people injured by out of control, brutish, sometimes homicidal cops, but the excesses of neither group justifies punishing all in either group. We make prejudicial generalizations about those accused of drunk driving, and that is dangerous, unjust, and unfair. And it has to stop.

Indio Traffic Court Scam, Part 2

I have written and spoken about this scam for a long time and on many occasions, and the public needs to know the latest chapter.

Two things are fundamental in our system.  One is that all people have a constitutional right to a trial if they are accused of committing a crime [and traffic infractions are crimes].  The other is that “bail” may not be imposed on people accused of crimes, conformably with the 8^th Amendment, unless they are found to be flight risks.  The latter is rather regularly violated in this jurisdiction for all levels of crime, because it is understood that people who are held in custody for extended periods of time are thereby softened up into pleading guilty to something, thus releasing pressure on the bloated criminal trial calendar.  It takes literally months to obtain habeas corpus relief for illegal pretrial detention, by which time defendants have generally taken some sort of plea bargain.

In the traffic trial setting, there are troublesome tweakings of those two fundamental doctrines which have resulted in an overt scam on the public of a sort and depth that if it were practiced by an individual, he would be in state prison for extortion.

In traffic, the unwitting public are told that if they plead not guilty to traffic charges at arraignment, they will not receive their trial [a constitutional right] unless they post “bail’ [which constitutionally requires they be found to be flight risks before it can even be imposed].  That “bail” is suspiciously about the same amount, or slightly more, than the fine would be if they were to plead guilty.  They are told that they will not receive a trial unless and until they post that “bail.”  If they politely refuse, they are dealt with quite rudely and menacingly by the Court, which has even been known to threaten an additional sum, over and above that “bail” amount, if they have not paid that illicit tribute by the time of the future-set trial.

Here are the facts from a declaration executed by one motorist who was exposed to that horrid, virtually terroristic, attitude by the local traffic court:

1.      I appeared at the appointed time for arraignment on this traffic infraction.  No one said or suggested I was a flight risk.

2.      As part of the general advisals to the whole room full of people apparently there on traffic citations, the judge said that there are only three ways to respond to his reading of the charges to each defendant: Guilty, Traffic School, or Not Guilty.  He got seemingly great enjoyment out of mocking people who responded otherwise or who wanted to explain something about the charges.

3.      When my name was called, I came forward and pled “not guilty,” which was one of the alternatives that he had said was available.  Only after I pled “not guilty” and asked for a trial did the Court announce that I had to post $500.00 “bail” to obtain a trial.  When it was clear that I was not, at that point, going to pay the $500.00, he told me to go back and sit down.  As I was headed back to my seat, he said to the bailiff “Bailiff, get your handcuffs lubricated.” I thought I had a constitutional right to a trial.  I thought bail could only be imposed on someone who is a flight risk.  I know many people who have had misdemeanor charges against them, including drunk driving charges, and they never had to post bail.  This infraction is, I believe, of less serious nature than a misdemeanor.  The discussion of “bail” came up only when I insisted on having a trial.  The judge became visibly agitated at me and asked why I thought I didn’t have to do the same thing everyone else was doing.  I don’t and didn’t know what everyone else was doing; I only know that I was there on my promise to appear for an arraignment on a traffic infraction, I appeared when I was supposed to appear, when the Court asked me how I pled, I respectfully said “not guilty,” to which the Court responded that I had to post bail.  If that was happening to everyone else, then it was as wrong for them to be required to pay “bail” to enjoy their constitutional right to trial as it is for me.

4.      The Court suggested that I would not get a trial until and unless I posted $500.00 “bail.”  I started thinking then that what the Court was labeling “bail” was really an admission fee to the trial Court, sort of like the old tickets one had to buy and hand over to enter certain rides at Disneyland.  It was not clear whether this was an “A Ticket” ride or an “E Ticket,” but I again said I was pleading “not guilty” and I wanted a trial.  By then the judge seemed quite furious.  He snapped that the matter was being continued to June 6.  I said I was not waiving time and I wanted a trial.  As his closing comments to me, he said that if I had not paid the $500.00 by the time of the continued date, he would add $300.00 to the amount he was saying was due.  He did not supply the authority for that warning.  Nor was it clear whether he was thereby prejudging guilt on the citation charges, or whether he was going to impose that amount, regardless of what he determined, in his “neutrality,” was the truth of the charge, or what.  I do not scare out of enjoying my constitutional rights that easily, and I had said, for a total of three times, that I was pleading not guilty and I wanted a trial.  I have consulted with counsel who knows the law of these matters and he does not know what authority would support the imposition of that additional $300.00 figure, but since I do not intend to pay this admission fee to enter the trial Court, I guess we will find out the authority, because I have been led to understand that many criminal defense attorneys are interested in learning what it is.

5.      Before I left, I politely inquired how I would go about getting a transcript of what had transpired in Court that day. The judge responded “I don’t care what you do after you leave this Court.  You can go spend $3,000.00 to hire a lawyer and figure that out; I don’t care.”

6.     I don’t think I have ever seen such rude treatment of a citizen who was simply and politely trying to enjoy his constitutional rights.

This all occurred in America, Folks – right here in Riverside County and Indio.

Needless to say, the dismissal motion that this declaration was appended to was granted today and the case was dismissed.  But that was no great loss to the voracious traffic court fiscal coffers, because the dismissal motion was called first, granted, and there was a courtroom of more potential lambs to the slaughter of “justice,” ready to be arraigned, and ready to be assailed and exploited out of their hard-earned funds.

When I first became aware of this sort of exploitation years ago, I brought the matter to the attention of the then-presiding judge of the Court system, Judge Thomas Cahraman, and he wrote me back that (a) it is not happening, and (b) if it is, it is okay.  Huh?  It was and is happening, and it is not okay, if we are a nation of laws and not of governmental hooligans.

That patent and purposeful rip-off of the public, denied to exist by a previous presiding judge, is what impelled me to run for judge against one of the greatest victimizers of the public in this scam the last time around, but his supporters also denied that what happens every day happens at all, and the easily fooled public fell for it.  You got the judiciary you deserve.  I and other liberty-oriented people did not.

Citizens who cannot afford counsel, who are the majority of people appearing on traffic arraignments, don’t know their rights in this regard, and cannot afford to litigate their rights on the subject, and hence they default into quietly paying their fines and leaving the courthouse, without trial or dignity.

There are circulars in the county law library regarding traffic court procedures that announce that a person appearing on a traffic arraignment who pleads not guilty must pay “bail” to obtain a trial.  There is no authority for that, and the Constitution speaks loudly against it, and I suspect most of the judges know it to be a fraud.  Paperwork from the Court, and some judges, cite Vehicle Code section 40519 as the authority for this scam.  Apart from the clear point that state statutes cannot trump state or federal constitutional doctrines, this one does not pretend to do so, if it is read.  That provision announces that if you have an arraignment date and you want to come in early and plead not guilty to the clerk, not in court but to the window clerk, they can require you to pay this “bail” to obtain a trial.  Neither it nor any other provision authorizes the collection of “bail,” which is really just an admission ticket to the traffic funhouse, to obtain a trial, if you have pled not guilty in open Court.  The Court cannot even read or understand the very authority it invokes for ripping unsuspecting people off.

There is nothing more loathsome that for a person’s government, the government of, by, and for the People, to rip off those people in the guise of administering “justice.”  The traffic court system has really morphed into a glorified appendage of the state tax revenue system, stealthily detouring Prop. 13’s limitation on taxation by duplicitously labeling the moneys thus extorted “fines” and “fees” and “assessments.”

This scam has to stop, and it has to stop now, and all judges who have enabled it should hang their heads in shame and resign.

Marijuana Madness; the Jury Got it Right, Regardles of What "The Man" Wanted

This recent item from the San Francisco Public Defender's Office illustrates, in stark tones, why "jury nullification" should continue to be understood to be the Framers' intended and legitimate protection for us all against governmental over-reaching, whether by the executive, the legislative, or judicial branches. [Yes, the fundamental power of civilian juries protect us against bad judges as well as against other agencies of government, which is why juries, when told by judges that they don't have that power, should merely smile and say "Uh, ya wanna bet?/!"]

Thursday, June 5, 2014 · by Tamara Aparton

San Francisco, CA— A good Samaritan who offered a pinch of marijuana to soothe a stressed out stranger only to have his compassion repaid with felony charges was acquitted following a jury trial, San Francisco Public Defender Jeff Adachi announced today.

After three hours of deliberation, a jury on Wednesday found Stetson Qualls Jones, 24, not guilty of possession of marijuana for sale and sale of marijuana. If convicted, Qualls Jones faced up to three years in state prison, said his attorney, Deputy Public Defender Ariel Boyce-Smith.

Qualls Jones’ ordeal began Feb. 5 while hanging out with friends in the “Hippy Hill” area of Golden Gate Park. The group was socializing and smoking marijuana when Qualls Jones thought he recognized a man approaching the group and waved him over. Upon closer inspection, Qualls Jones realized the man was a stranger, but welcomed him regardless. When Qualls Jones invited him to smoke with the group, the man declined, asking instead if he could buy marijuana.

Qualls Jones testified that he told the man that he did not sell marijuana. The man appeared agitated and stressed out, so Qualls Jones reached into his personal stash, pinched off a small amount of marijuana, and handed it to the man, who turned out to be a police decoy.

Qualls Jones, who lives a communal lifestyle and frowns upon capitalism, testified that he refused the $20 the man offered him in exchange for the marijuana.

After the interaction, Qualls Jones was swarmed by five to six police officers, who were conducting a sting operation. Police found a bag of less than 1 ounce of marijuana in his jacket pocket. Police testified they found the $20 under a blanket where Qualls Jones was sitting.

Qualls Jones spent four days in jail before being released by a judge.

During the trial, Qualls Jones testified that he considers marijuana to be medicine and feels it should be freely shared instead of bought and sold.

Under questioning from Boyce-Smith, two police officers admitted they were receiving overtime pay in exchange for the buy-bust operation. One of the officers also acknowledged on the stand that his department receives federal grants for the stings.

“Despite conducting a well-funded operation, police did not bother to gather any corroborating evidence. There wasn’t a single photograph taken or a single witness interviewed, despite the fact that Mr. Qualls Jones was sitting with six other people in a public park,” Boyce-Smith said.

Throughout the trial, Boyce-Smith repeated a rhyme that captured the frailty of the case: “He didn’t accept a dime/they made up this crime/while they were getting paid overtime.”

In 2006, the San Francisco Board of Supervisors approved an ordinance making marijuana offenses the police department’s lowest priority. However, public marijuana sales are not included in the policy.

Qualls Jones was found guilty of possession of less than 1 ounce of marijuana, an infraction, and fined $25.

Adachi said Qualls Jones never posed a risk to public safety.

“A tremendous amount of city resources were wasted in a manufactured case against a man who was minding his own business,” Adachi said. “San Franciscans have been very clear about marijuana enforcement and I am not surprised a jury rejected this case.”