McNeely, More Thoughts

In addition to presumed warrantlessness of blood draws [and other chemical evidence collections], the Supreme Court, in Schmerber, allowed that any blood draw had to be performed according to accepted medical practices, which they there noted was by a physician in a hospital.
The opinion made it clear that any lesser standard would trigger Fourth Amendment concerns; it was only on the facts of that case that the blood draw, and a warrantless draw, was deemed to be constitutional.
In McNeely, all of the justices, majority, concurring, and dissenting, evidenced a belief that such draws were being carried out as they ordered 47 years ago, by medical personnel in a medical facility or hospital.  Are they?  Uh..., NO.
The "accepted medical practices" standard has degenerated here into "medically approved manner."  And that is found to be satisfied if a police contractor phlebotomist comes to the jail, or a police car outside of the jail, and draws the blood.  It is clear that the Supreme Court would be appalled by such cavalier disregard of their express expectations.
I had one case where the cop, who had commanded a blood draw, was met by someone he didn't know and about whom he knew nothing, whose credentials were nowhere in evidence, whose name he did not even know, and the Court found that her "work" was constitutional.  Accepted medical practices?  Accepted by whom? What licensed physician would stake his medical license on the acceptability of that sort of chicanery?
Are DUIs so important to the state that we care not about the Constitution?  Judges and DAs should hang their heads in shame for increasingly defaulting away from liberty and in the direction of power. But they have no shame.

Conflict between DOMA case and Prop. 8 Case Could Cause Problems

Hollingsworth v. Perry and United States v. Windsor came out today to eager and anxious audiences.  Let us not celebrate too effusively about those two same-sex-marriage cases, because there is a problem here that will spark more costly and socially painful litigation. 

DOMA was declared unconstitutional because it invades states' rights about the definition of marriage, an inherently state prerogative: it is a celebration of federalism, implicating values of the full faith and credit clause and the 10th Amendment.

Due to justiciable standing issues, the Prop. 8 case was allowed to stand on the ruling below that proscriptions against "marriage," where the same social/contractual rights can be enjoyed by same sex couples without them being able to enjoy the use of the term "marriage," violates equal protection [on the lowest standard of all, rational basis]. It really is, on the substance, a word usage issue, not a substantive civil rights issue. 

So there's the problem - if the subject is one of equal protection, then the states cannot decide the policy and practice; if the states can decide the policy and practice, then equal protection is not involved!  So, which is it - does the issue sound in E/P or federalism?  It cannot be both - they are mutually contradictory.

There will be much litigation coming out of these constitutionally inconsistent cases, and one can imagine Scalia grinning in the background [much as Marshall must have been when he penned Marbury v. Madison] when these cases were being discussed, and when he read aloud his dissent in the DOMA case.

McNeely Curiosity, or Why Are Judges Hypocrites?

An interesting judicial phenomenon is spreading across the Fruited Plain, and things will get worse before they get better.

47 years ago, the U.S. Supreme Court held that a warrantless blood draw from a person arrested for drunk driving was okay IF exigency existed, AND the evanescence of the alcohol in the system was not, by itself, sufficient to justify the search - there had to be more.

Some courts in the country respected that ruling [as all must, under Supremacy Clause holdings]; courts in this state [the supposed land of Liberty, except to those of us who practice law in it!], however, did not - for decades they thumbed their noses at the Supreme Court's clear rule, holding, in contrast, that the evanescence of the alcohol alone is sufficient exigency to warrantlessly stab a person and suck out his life's juices.  That is, our courts practiced anti-liberty judicial tyranny, just as the courts of the old Jim Crow South did.

The Supreme Court held, just about a month ago, again that evanescence is not enough - there must be more.  Now our courts are saying, in essence, "well, since the cops relied on our old rule for so long, evidence collected in reliance on that old rule, concededly now unconstitutionally seized, should not be suppressed, because that would be unfair to them."  Uh..., HELLO!  Unfair to the cops????  Is that what the Constitution guarantees, fairness to the constabulary, at the expense of liberty?

In our courts' twist, the cops can rely on "ignorance of the law" IS an excuse for their conduct, but us regular folk would be laughed out of court, or into jail, for pleading "ignorance of the law" in our matters, because it is no excuse.  Because our courts have thumbed their noses at the U.S. Supreme Court for almost 5 decades, our cops should be given a pass?  In our scheme of things, or the Framers' scheme of things, who is to be protected by the Constitution, individuals or government?  Was the Constitution written to protect government?

Our judges should be ashamed of themselves for concocting a doctrine of reasonable reliance on erroneous law; that is being woven from whole cloth.  It is bad enough that cops are able to get away with "ignorance of the law is an excuse" for bad warrants [if they would not have known] or for reversed direction of the Supreme Court, but to allow it when the Supreme Court merely reiterates a rule that others, in the pursuit of easy DUI convictions, have chosen to ignore calls into question the entire meaning of a rule of law, and of constitutional law.

Judges are charged with a duty to patrol the boundary lines of the Constitution and to protect individuals from overweening government; they are not supposed to become the overweeners themselves nor to protect their police chums.

All doubts should be resolved in the direction of the individual, because that is what constitutional law is all about.

There are so many other aspects of this new state judicial tyranny, but we want to give it in installments so the constituent parts can be fully absorbed.

Miranda Confusions and Ignorance

There are many so-called experts blathering about the Boston marathon bomber and Miranda and "enemy combatant" that we need to clear the air by sweeping away the smoke of ignorance.

First off, Obama eliminated the status of "enemy combatant" from a standpoint of questions about how to treat those alleged to be terrorists in 2009.

Secondly, an enemy combatant presupposes we have an official "enemy," that is that we have a congressionally declared war against a sovereign nation, and then someone militarily associated with that sovereign nation does something outside of the battlefield against the security of this country.  We, of course, don't have a declared war, making most of our international bellicosity unconstitutional, and our invasions and occupations of foreign lands are, of course, war crimes, which is why we do not subscribe to the jurisdiction of the International Court at the Hague, while self-righteously asserting that other leaders should be prosecuted there for war crimes!  And an "ism" [terrorism, communism, stupidism] is not an enemy, but a methodology or line of thought, so it is not something war could be declared "against" anyway.  So, we could not have a true enemy combatant here [whether he be citizen or non-citizen].  Moreover, almost all enemy combatant matters, the few valid ones, occur outside of the constinental US and involve non-citizens. Yes, yes, I know about the WWII incident[s]; and that was a declared war against a tangible, sovereign belligerent.

Thirdly, those in custody for crimes [and murdering people with bombs is a crime] have a right to be informed of their Miranda rights, and if they are not, and if they are nevertheless grilled, the verbal fruits of those grillings cannot be used against them.  Those fruits can be used against others, and they can lead to other evidence usable against the person grilled.  If they lead to physical fruits, those can be used against the person being interrogated, under the wrong-headed Supreme Court opinion of U.S. v. Patane.

Fourthly, if Miranda rights are not timely given, or if they are given and invoked, but interrogations proceed notwithstanding, that does not result in the dismissal of the charges, but only in exclusion of the verbal fruits, and solely as to the person interrogated.

Fifthly, the "public safety exception" to Miranda is very narrow, it is involved with quick action needed at the site of the questioning, and it lapses shortly thereafter, and it was created at a time that Miranda was not considered to be a rule compelled by the Constitution.  However, years later, the Supreme Court woke up and decreed that Miranda is constitutionally compelled [Dickerson], and its rule is itself a constitutional right, so query whether any aspect of public safety exception survives, but it does not exist days later, in hospital beds, with someone truly in isolated custody.

The news programs are spewing idiotic stuff through supposed "experts" who know not what they are talking about, and silence is better than idiocy.  Idiocy on this volatile subject [nor really on anything] does not serve the public interest, even though it might sell newspapers and magazines, or inspire viewers.

"Be Professional...."

That is the exhortation of the hypocrite who fears the truths of what a properly principled person is saying and doing.

I recently accurately noted that only "government hacks" masquerading as scientists would embrace the government positions about alcohol forensics that drive drunk driving prosecutions, and I earlier accurately called a government stool pigeon a "stoolie," and the judges in each circumstance went nuts; I was being "unprofessional."  They don't hesitate to call my clients drunks, murderers, robbers, rapists, burglars, but Heaven Forbid! that I accurately label one of their chums, or the chums of their beloved prosecutors, what they are.  And the complaint against my truthful labels and utterances always sounds in terms of lack of "professionalism."  So what does that mean, not being "professional"?

Our craft touts itself [with diminishing aptness!] a "learned profession."  And in that context, nobody is more factually or intellectually prepared, nor more supported in his positions by scholarly and accurate research, nor more able to present his positions by attention to proper procedure and evidentiary standards, nor more willing to treat the various actors in the courtroom with their "due respect" [the "respect" they are "due" based on their level of enlightenment or scholarship or thoughtfulness] than I, so what means "professional"? 

Has "professional" come to connote some juristic political correctness of saccharine phraseology or false deportment that hides the essence of that which is being discussed or conveyed?

I suppose the "be professional" crowd would find favor in the quietly dignified death camp commander who, with reserved profundity of mien, while pensively listening to Wagner, sipping Liebfraumilch, gently inhaling a French cigarette in a gold cigarette holder, dressed nattily in creased and starched uniform, with seriousness of purpose orders the monthly supply of Zyklon-B gas.  He would thereby "be professional."  In contrast, the firebrand who would loudly denounce him for his inhumane barbarism would be "unprofessional." 

King George, III, violating colonial liberties with arms and ships and various affirmative outrages, while gently taking snuff from a solid gold case cradled in his lace-encircled hand, would be "professional"; in contrast, Samuel Adams dispatching the Sons of Liberty to dump the celebrated tea would be "unprofessional."  Sorry, Gang - I'll take Adams and the firebrand over those "professionals" any day of the week.

So, any time someone in power scolds you for being "unprofessional," sincerely thank him, because he thereby recognizes that you will demand substantive liberty over pretentious tyranny, that, in short, you are an American, while they and the ones they prefer are the Huns.

Write Not a Post-Mortem for the Post Office

There is much discussion of late about the U.S. Postal Service and what needs to be done about it, considering that it is perpetually in the "red."  Uh..., Hello!  The framers did not perceive of the service as something that should make money; they considered it a fundamental public service necessary to make the Republic strong.

There were few things the national government properly/lawfully could do [if one believes in the Constitution as more than a quaint icon to be stored away in the National Archives and dusted off on the 4th of July and Constitution Day], and they were largely defined by Article 1, section 8, and among them were the power to establish a post office and post roads.

The framers understood that a healthy polity required easy and inexpensive communication among its members, and between its members and its government, and that was the role of the post office.  It was to facilitate values that were later enshrined in the First Amendment.  Indeed, it was an instrument to help give voice to the later enacted First Amendment [whose unstated values inhered in the people's existence long before the framing].

Ben Franklin was the first postmaster general under colonial government, and then the crown fired him for consorting with revolutionaries[!], and he then became the first postmaster general under the continental congress.  A peron of his his legendary and titanic stature did not run a "business" to help get the Ladies Home Journal to frustrated matrons; he ran an operation that both the crown and the colonists understood to be vital to a healthy government, whether that government be royal or revolutionary, or republican.

The fact that the current post office has trouble competing with e-mail and various private organizations is irrelevant to the question of whether it should be sacked, because it is not supposed to be a business but a public service.

We should no more eliminate the post office because of its red ink than we should the military, because neither was intended to make a profit, and both are essential to the maintenance of a free Republic.

Indeed, the question of "red ink" pressupposes that its ideal is to run in the black, and it is not - it was not conceived of as a business, and the fools that took it out of cabinet status and tried to contort it into being a public business were as ignorant of constitutional intents as are so many in government these days on this and other topics.

Return the post office to cabinet, public service status, drop the business model, and let it serve the public in the fashion originally intended.

Supreme Court's New Ruling re Police Dogs a Real Bitch!

The U.S. Supreme Court has just ruled in favor of a police dog against liberty interests; they unanimously overruled the Florida Supreme Court [not an excessively pro-defendant body, by the way!], supporting instead the work of a drug-sniffing German shepherd named Aldo, ruling that police do not have to extensively document a dog’s field experience to justify relying on the animal to search someone’s vehicle. [Florida v. Harris, 11-817, decided 2/19/2013.]  Let me show you the danger of heeding what the cops say about their police dogs, and how irresponsible the supreme court is [again] in this pro-government ruling.

There was this police dog.  The courts were repeatedly told by its handlers that he was a wonderful and reliable drug sniffing canine, and he sported a badge.  He had been in loyal and “effective” service for a few years, with a reputation based on cops’ representations spreading far and wide.  We’ll call him “Fido,” which is not his real name, to protect the innocent.

Real Stories of the CHP was filming on a stretch of an interstate highway in a jurisdiction in which I was working, and they got permission to accompany the cops on a highway interdiction drug bust.  The cops needed them for publicity; they needed the cops for ratings; Lady Justice needed honesty, and she was almost disappointed.

The cops started patrolling, in two cars, with cameraman and reporter riding in one, and they eventually pulled over some hapless soul for speeding.  What follows was on the videotape.  The cops surrounded him and started the stock “where are you coming from; where are you going; do you have any guns, money, or drugs in the car,” and so forth that has nothing to do with speeding.  After holding the motorist there for an extended period for a non-speeding grilling [read “prolonged detention”], the cops asked if they could search his car. [Editor’s Note: the answer should ALWAYS be “no.”]  He reluctantly said ok.

They opened the trunk and the handler cop commanded the dutiful Fido to jump in.  Another command was to search, but the well-trained Fido wasn’t quite sure what he was talking about.  The one cop kept banging on the insides of the trunk while the other one talked to the reporter.  Fido ran back and forth frantically, and then hysterically, in response to the banging, finding [“alerting on”] nothing, so they let the poor creature jump out. 

The two cops started talking on camera to the reporter, when one of the cops hoarsely whispered to the other “Get your dog.”  “Huh?  “Get your f---ing dog!”  The camera panned around in the direction of both cops’ gaze, and off in the distant desert there was a speck of Fido.

“Fido, Fido, Come!”  Fido was having too much fun.  The handler cop then barked a command more snarlingly than Fido could ever sound, and he finally trotted back, with the prize in his mouth: Fido had alerted on a dirty baby diaper he happily found in the desert!  “Drop it, Fido!”  Fido could not quite understand why his master was so grouchy.  “DROP IT, FIDO!”  He finally did.

The search roust resumed.  They headed to the passenger compartment, and the handler commanded Fido to get in and search.  Fido ran back and forth, wistfully recalling his baby diaper.  Back, forth; back, forth!  No diaper; no alert on anything else, either.

Apparently sensing televised calamity or embarrassment, the other officer then went to the hood, opened it, and, obviously to distract the cameraman and reporter, who were still looking for televisable fruits in the passenger compartment, cried out “oh, look; there is something here.”  The cameraman and reporter ran up there, leaving the handler and Fido to work their efforts on the passenger compartment.  Of course, there was nothing up in the hood, but then the handler, still back at the passenger door, expostulates: “Look what we found.”  In the one to two minutes the others were looking in the hood!/?

The reporter and cameraman rushed back to the passenger compartment, and now there had appeared, on the floor of the front passenger seat, a stainless steel vacuum canister, with its top off, and packages of suspected cocaine sitting next to it.  The incredulous reporter inquired “Did Fido find that?”  “Yep, he ‘alerted’ on it.”  Well, could we re-enact that for the camera?”  The handler was obviously uncomfortable with the idea, but with the camera and sound rolling, he hesitatingly obliged.

The cops put the suspected drugs back in the canister, screwed on the top, and the handler gave Fido the command to find the stuff.  Fido did not have a clue what he was being told to do.  The cops banged on the canister with their Billy-clubs, and Fido looked quizzically from one to the other.  They then banged and banged and banged to the point that the poor dog damn-near peed himself [and so too the reporter, we suspect], and he then gave a fear-induced quiver, and the handler then said “see, he alerted; let’s see what’s in there.”

They opened the canister, and Zounds!, there were drugs, so the motorist [now being held on a speeding beef for over half an hour] was arrested for trafficking drugs.

Of course, the resulting police report did not read that way.  It related that there was a traffic stop, the trusty Fido walked around the car and immediately “alerted” while the speeding ticket was being processed, which gave the cops probable cause, because of Fido’s proven, court recognized track record[!], and they searched, and found a stash of cocaine.  Bing, bing, bing, bing.  Any court would believe it!  Knowing how things are in that drug enforcement arena, I did not.

After reading that report and talking to my client, I started to subpoena the complete tape and outtakes from the Hollywood producer, but my investigator called them first.  He spoke to the executive producer and said “Sir, Mr. Kennedy is furious and he wants….”  The producer interrupted and respectfully blurted out “he can have whatever he wants; what is it?”  Why so cooperative? You see, that producer had given me grief about a similar outtake show 6 months before, when I was litigating a Fourth Amendment attack in Needles.  My investigator had called and had politely asked for the tape, and the same producer told him to pound sand.  I served a subpoena duces tecum on him, commanding him to appear in Needles, in August, with the tape.  He thought about it and tried to get out of the subpoena by then offering to send the tape to me.  I allowed that he had screwed with the wrong person and that he could now sit in Needles until I was ready for him.  I got that tape, and it showed police dishonesty too, and that case was dismissed.

So this time, when my investigator said “Mr. Kennedy wants….,” there needed not to have been said any more.  Mr. Kennedy got.

The tape was a goldmine of police overreaching and corruption and duplicity, and of false representations about the prowess of a renowned police dog, and it was, of course, 180 degrees off of the substance police report that had triggered the filing against my client.

I told the judge that I would share a secret with him and the DA in chambers, and I strongly hinted what it was, and I said that I wanted a dismissal with a promise of no refiling, but if we went to formal hearing, I would contact 60 Minutes.  The judge said that if the tape came close to what I said it was, I would get my dismissal.  It was not only close, it was utterly congruent with my representation.  The case was, of course, dismissed.  The DA did not file false police report charges on the cops.  Real Stories did not air that segment, but we suspect many they did would have similar outtake revelations: two out of two that I examined did.

While dealing with another matter in the courtroom, I left the tape in the judge’s chambers for 10 minutes, and the only people in there were the judge, the DA, and two cops.  When I returned, the tape was missing.  Everyone feigned ignorance about where it went!  They, of course, honored the dismissal and non-refiling, because they knew I could get another tape.  And Lady Liberty wept, because the shepherds proved themselves really to be the wolves.

And those cops, and judge, and DA were as honorable as many we have now, and Fido was as competent, if not more so.

For this current supreme court, “a sniff [would be] up to snuff” for probable cause; unfortunately, our supreme court is not up to snuff for what the Framers envisioned would be their role of protecting us from overweening government.  They are increasingly the overweeners themselves!