5th-Amendment

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This morning, the world learned of the passing of legendary folk singer Pete Seeger.

In March of 1961 Seeger was facing trial for contempt of Congress after refusing to testify before the House Un-American Activities Committee. 

Pete Seeger wrote to President Kennedy:

“I would not take up your valuable time with my personal problem, except that I feel it is a very fundamental one which concerns all America these days.  Do I, or does any citizen, have the right to hold unorthodox opinions, whether they are purely right or horribly wrong, and do I have the right to join with others who think similarly?”

Arlo Guthrie also wrote to JFK asking him to “please do what you can for Pete Seeger." 

-from the Kennedy Library 

FILIBUSTER VICTORY FOR RAND: White House surrenders!

Finally.  After 13 hours of Rand Paul filibustering and demanding an answer to one simple question, the White House has surrendered. Attorney General Eric Holder sent Senator Paul a curt letter acknowledging that President Obama has no Constitutional authority to order drone strikes on non-combatant US citizens within this country’s borders. 

from Washington Examiner:

White House Press Secretary Jay Carney quoted from the letter that Holder sent to Paul today. “Does the president have the authority to use a weaponized drone to kill an American not engaged in combat on an American soil?” Holder wrote, per Carney. “The answer is no.”

Carney added that, “if the United States were under attack, there were an imminent threat,” the president has the authority to protect the country from that assault.

read the rest

This is perhaps the first time that the Obama administration has completely crumbled under pressure, and the achievement for Senator Paul and the statesmen who joined him on the floor of the Senate cannot be overstated. 

Take note, America. We can take on President Obama on a Constitutional basis…and we can win.

WHAT THEY’VE DONE ALL WEEK LONG IS GUT THE POWER OF THE FEDERAL GOVERNMENT.
— 

Melissa Harris-Perry on the SCOTUS rulings this week

This is important.  This is important.  SCOTUS did not rule in favor of anyone this week.  What they did was very narrowly skirt around critical public issues and leave actual rulings and change in the hands of the states.

In the hands of the states.  This should concern you.  States are the entities that created and passed Prop 8.  States are the entities that required a woman to stand and speak for 12 continuous hours to delay the assault on women’s reproductive rights.  States are the entities that make concerted efforts to defraud voters both at the polls and in the weeks and months leading up to any election.  States are the entities that train police officers and court officers to take your silence as a permanent waiver of your 5th Amendment rights in both formal and informal investigative interviews.

If you think the Court did something courageous or equalizing today, you haven’t been paying attention.

The California Supreme Court has ruled that the silence of suspects can be used against them.

Wading into a legally tangled vehicular manslaughter case, a sharply divided high court on Thursday effectively reinstated the felony conviction of a man accused in a 2007 San Francisco Bay Area crash that left an 8-year-old girl dead and her sister and mother injured.

Richard Tom was sentenced to seven years in prison for manslaughter after authorities said he was speeding and slammed into another vehicle at a Redwood City intersection.

Prosecutors repeatedly told jurors during the trial that Tom’s failure to ask about the victims immediately after the crash but before police read him his so-called Miranda rights showed his guilt.

Legal analysts said the ruling could affect future cases, allowing prosecutors to exploit a suspect’s refusal to talk before invoking 5th Amendment rights against self-incrimination.

“It’s a bad and questionable decision,” said Dennis Fischer, a longtime criminal appellate lawyer.

Tom’s attorney Marc Zilversmit said he is deciding whether to petition the U.S. Supreme Court to take up the issue or renew his arguments in the state court of appeal.

“It’s a very dangerous ruling,” Zilversmit said. “If you say anything to the police, that can be used against you. Now, if you don’t say anything before you are warned of your rights, that too can be used against you.”

The state Supreme Court in a 4-3 ruling said Tom needed to explicitly assert his right to remain silent — before he was read his Miranda rights — for the silence to be inadmissible in court.

http://news.msn.com/crime-justice/court-silence-can-be-used-against-suspects

reason.com
New York Cops Know People Have a Right to Record Them; They Just Don't Care

From his car, Brooklyn resident Dick George sees a couple of cops exit an unmarked vehicle and perform a “stop and frisk” and three black youths. George takes pictures of this encounter. After the cops walk away, George tells youths that next time they should demand badge numbers.

Cops overhear this and one says “What did he just say to them, get our badge number? … Let’s go get him,” or words to that effect. The cops then accost George:

After stopping George’s car, the cops roughed him up, handcuffed him, and took him to the precinct house, where he was strip-searched, locked in a cell, and charged with disorderly conduct. When he got his cellphone back after being released with a desk appearance ticket, he found that the photos of the stop-and-frisk encounter had been deleted.

According to George’s complaint, the cops repeatedly told him he was getting what he deserved for “being an activist.” Ferber allegedly said something like: “Now we are going to give you what you deserve for meddling in our business and when we finish with you, you can sue the city for $5,000,000 and get rich. We don’t care.”

That estimate was off by a factor of 40. The New York Daily News reported on Monday that the city agreed to settle George’s lawsuit for $125,000. “After a thorough review of the case facts,” a lawyer for the city said, “it was in the best interest of all to resolve this matter without costly litigation and trial.”

The officers, of course, are not on the hook for any of that money, which will instead come out of taxpayers’ pockets. And judging from the comments reported by George, the prospect of litigation does not deter this sort of unlawful bullying. The problem was not that the cops didn’t realize they were violating George’s rights; it was that they did not care, because they did not expect to suffer any negative consequences as a result—for good reason, according to the lawsuit:

The supervisory staff of the NYPD has consistently failed to investigate allegations such as those contained herein and to discipline officers who have violated NYPD guidelines. The investigation of these incidents by central office and/or supervisory staff reflects a bias in favor of uniformed officers. Furthermore, officers and staff who are known to have violated an individual’s civil rights in one command are often transferred by NYPD to another command rather than be disciplined, demoted or fired by the NYPD.

The cost of settling lawsuits like George’s helps explain the recent NYPD memo. But reminding cops that they are supposed to respect people’s constitutional rights will not accomplish much unless they suffer personally for violating them. Since courts have ruled that cops do not receive qualified immunity in cases like this (because the right to record them is well established), officers can theoretically find themselves owing damages to the people they victimize. But the usual practice in settling cases is to drop claims against individual cops along with claims against the city and the police department. Maybe it is time to reconsider that practice. The threat of financial ruin would be harder to laugh off than the threat of taxpayer-funded damages.

Yet another example of the unofficial police policy on engaging suspects at work.

jonathanturley.org
The Price of Silence: Supreme Court Rules That Pre-Miranda Silence Can Be Used Against Defendant To Prove Guilt | Jonathan Turley

In a major loss for individual rights vis-a-vis the police, the Supreme Court ruled 5-4 that prosecutors could use a person’s silence against them in court if it comes before he’s told of his right to remain silent. The prosecutors used the silence of Genovevo Salinas to convict him of a 1992 murder. Because this was a non-custodial interview, the Court ruled that the prosecutors could use his silence even though citizens are allowed to refuse to speak with police. It is of little surprise that the pro-police powers decision was written by Samuel Alito who consistently rules in favor of expanding police powers. [continue]

youtube

Teacher disciplined for informing kids of 5th amendment rights

High school teacher John Dryden from Illinois faces disciplinary action from his school district for informing kids they had the right to not answer questions on a school survey. The questions were about the kids’ tobacco, drug, and alcohol use, and answering them might have incriminated the kids. The Resident (aka Lori Harfenist) discusses the story.

RIGHT TO REMAIN SILENT The court ruled that a suspect’s failure to answer a police officer’s questions before an arrest may be used against the suspect at trial.

The Supreme Court has long said the Fifth Amendment’s protection against self-incrimination applies after arrest and at trial. But it had never decided, in the words of a 1980 decision, “whether or under what circumstances pre-arrest silence” in the face of questioning by law enforcement personnel is entitled to protection.

The case decided Monday, Salinas v. Texas, No. 12-246, arose from the 1992 murder of two brothers, Juan and Hector Garza, in Houston. Among the evidence the police found were discarded shotgun shells.

The police questioned Genovevo Salinas, who was said to have attended a party at the Garzas’ apartment. Mr. Salinas answered questions for almost an hour but would not say if a shotgun the police had taken from his home would match the recovered shells.

At trial, a prosecutor commented on Mr. Salinas’s silence about the shells. “An innocent person,” the prosecutor told the jury, “is going to say: ‘What are you talking about? I didn’t do that. I wasn’t there.’ He didn’t respond that way. He didn’t say, ‘No, it’s not going to match up.’ ”

Mr. Salinas was convicted and sentenced to 20 years in prison.

SENTENCING The court overruled a 2002 decision that had required judges to impose mandatory minimum sentences even if they were not supported by jury findings.

Can the president kill an American simply because the person is dangerous and his arrest would be impractical? Can the president be judge, jury, and executioner of an American in a foreign country because he believes that would keep America safe? Can Congress authorize the president to do this? …
If the president can kill an American in Yemen, can he do so in Peoria? Even the British king, from whose tyrannical grasp the American colonists seceded, did not claim such powers. And [they] fought a Revolution against him.
youtube

If people are rational and self-interested, why do they incriminate themselves after being Mirandised?

After minute 31 an experienced Virginia Beach interrogator-cum-3L explains how he convinces criminals to confess, against their interest, even after advising them that “Anything you say may be used in court”.

Especially after minute 34, 36, 38, 39, 40, 45, 47 he explains how he has outsmarted several criminal archetypes over 28 years.

Also check the interrogator’s view (at min 45) on cultural prejudice and presumption of guilt in Virginia Beach criminal court.

Added, 2015: People also give away when they’re not at home. Someone in a poor, high-unemployment, high-drug-use community told me she knows many people who have been robbed that way by so-called “friends” who watch their Facebook feed.

flexyourrights.org
Police Say 'Flex Your Rights' DVD is Illegal

Police raided a marijuana dispensary in Washington, D.C. and found the informative video on how to deal with the police. This is what they had to say about that:

Your Affiant notes that while this DVD is informative for any citizen, when introduced into a store that promotes the use of a controlled substance this DVD becomes a tool for deceiving law enforcement to keep from being arrested. The typical citizen would not need to know detailed information as to US Supreme Court case law regarding search and seizure because they are not transporting illegal substances in fear of being caught.

Un-freaking-believable.

Women, Combat & The Constitution

Over at The Skeptical Libertarian, Daniel Bier observes that the Pentagon’s recent decision to lift the bar on women in combat roles may place previous Supreme Court rulings regarding gender-based Selective Service on shaky ground:

In 1981, the District Court for the Eastern District of Pennsylvania ruled that the practice did in fact violate the 5th Amendment, and it prohibited further registration under the Act. The government appealed to the Supreme Court. In the 6-3 decision in Rostker v. Goldberg, the Court ruled in favor of the Selective Service. Justice William Rehnquist wrote the majority opinion defending the discriminatory practice, saying, “Congress acted well within its constitutional authority to raise and regulate armies and navies when it authorized the registration of men and not women.”

… 

The Court ruled that the gender-based distinction was not unconstitutional because the draft was designed to recruit soldiers for combat duties, and because the military did not and could not place women in combat, the law was consistent in excluding them from registration. The reason Congress excluded women from registration is not because they are women, said Rehnquist, but rather because of the unrelated regulation prohibiting them from serving in combat roles.

With the Pentagon’s decision to remove the ban on women in combat, the Court’s logic no longer holds, and the government will find itself once again afoul of the Constitution, based on the decision that saved the Selective Service Act the last time. If the law faces a legal challenge, the courts would likely have to once again issue an injunction stopping Selective Service registration, unless Congress fixes the law to include the now combat-approved women.

I think this analysis is sound.  Rehnquist’s now-infamous argument in Goldberg was that women are not “similarly situated” with respect to combat duty, such that Congress could reasonably decide that a male-only draft system was in the national interest.  However, with the ban now being lifted, there is one extraordinarily important sentence in the case that places its core holding in present jeopardy:

[T]he Constitution requires laws to treat similarly situated individuals equally, not that Congress “engages in gestures of superficial equity.”

By lifting the ban, the Pentagon has essentially destroyed the notion that men and women are not similarly situated with respect to military service.  That places gender-specific Selective Service within the cross-hairs of Rehnquist’s decree: if the Constitution does require laws to treat similarly situated individuals equally, and it turns out that men and women are in fact similarly situated with respect to combat duties, then gender specific Selective Service becomes difficult to justify under the Goldberg framework.  

If Goldberg was struck down, then it would likely mean that we’d see a gender-neutral Selective Service.  This would of course be a historic moment for gender equality.  Justice Marshall, in his dissent in Goldberg, chastized the Court for “placing its imprimatur on one of the most potent remaining public expressions of ‘ancient canards about the proper role of women[,]’”—namely, that they are fragile and thus ill-suited for ‘man’s work,’ such as combat.  Both Marshall and Brennan argued that by excluding women from a fundamental civic obligation like military service, the majority was essentially incorporating misogynistic gender-based assumptions about the abilities of women.  This, of course, invokes some of the objections contained in the Declaration of Sentiments, wherein the Suffragettes noted the injustice of laws that rendered women “civilly dead,” and laws which “made [women], morally, an irresponsible being[.]”  A Selective Service that affects only males, Marshall argued, tends to invoke these evils by infantilizing women.  As Justice Marshall noted in his Goldberg dissent:

Legislative classifications which distribute benefits and burdens on the basis of gender carry the inherent risk of reinforcing sexual stereotypes about the `proper place’ of women and their need for special protection… . Where, as here, the [Government’s] … purposes are as well served by a gender-neutral classification as one that gender classifies and therefore carries with it the baggage of sexual stereotypes, the [Government] cannot be permitted to classify on the basis of sex.

With the “similarly situated” logic of Goldberg displaced, I think there is solid ground to suppose that Justice Marshall’s logic would carry the day in a future legal challenge.  With the ban on women in military combat roles lifted, we may see a universal Selective Service sometime in the near future.

A nation continues to wait for final word on the Supreme Court’s Big Four cases this term — voting rights, affirmative action, DOMA, and Proposition 8 — but the justices’ closest decision arrived first on Monday, in a 5-4 ruling on Salinas v. Texas in which the conservative members of the Court and Anthony Kennedy determined that if you remain silent before police read your Miranda rights, that silence can and will be held against you. Here’s what that means.

Basically, if you’re ever in any trouble with police (no, we don’t condone breaking laws) and want to keep your mouth shut, you will need to announce that you’re invoking your Fifth Amendment right instead of, you know, just keeping your mouth shut. “Petitioner’s Fifth Amendment claim fails because he did not expressly invoke the privilege against self-incrimination in response to the officer’s question,” reads the opinion from Justice Samuel Alito, which Justice Kennedy and Chief Justice John Roberts backed. Justices Thomas and Scalia had a concurring opinion while the remaining four Supremes dissented. 

The Salinas case revolves around Genovevo Salinas, a man who was convicted of a 1992 murder of two brothers. Salinas was brought in for police questioning in January 1993. According to the dissenting opinion of Justice Breyer, he was called in to “to take photographs and to clear him as [a]suspect” and Salinas was questioned without being read his Miranda rights:

Because he was “free to leave at that time,” [App.14], they did not give him Miranda warnings. The police then asked Salinas questions. And Salinas answered until the police asked him whether the shotgun from his home “would match the shells recovered at the scene of the murder [Id., at 17.] At that point Salinas fell silent.

That silence was then used against Salinas in court, and he was eventually convicted. But the bigger question in revisiting this 20-year-old murder case was whether or not prosecutors were allowed to point to that silence, and win a case using Salinas’ own silence against him.

You know what’s a much more recent wrinkle to the potential precedent effect of today’s ruling? A case like that of the younger Boston Marathon suspect, Dzhokhar Tsarnaev, who reportedly sat through 16 hours of questioning before he was read his Miranda rights. Had Tsarnaev, who was recovering from serious injuries at the time, remained silent during questioning without explicitly invoking his Fifth Amendment, prosecutors could, under the Salinas ruling, now use that silence to their advantage.

It all seems ridiculously terrifying, this idea that in order to claim your Fifth Amendment, you now need to know how to call the on-the-fly legal equivalent of "safesies.” Your right to remain silent just got more complicated, and it will require potential criminals to be more informed about their protections and the linguistic details on how to invoke them. “But does it really mean that the suspect must use the exact words ‘Fifth Amendment’? How can an individual who is not a lawyer know that these particular words are legally magic?" Breyer wrote.