Wanting that second bite at the apple

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. -- 5th Amendment

Terance Gamble was a convicted felon, having been convicted of robbery back in 2008.

Seven years later he was pulled over by police for having a faulty headlight. While searching his car, police found marijuana, drug paraphernalia and a gun.

Mr. Gamble was charged under Alabama law with being a felon in possession of a firearm. He pleaded guilty to the charge and was sentenced to a year in prison. He thought that was the end of the matter.

But he was wrong.

For whatever reason, the local US Attorney decided to charge Mr. Gamble with violating a federal statute prohibiting a convicted felon from possession a gun. He argued that the federal charge was a violation of his 5th Amendment protection from being charged with the same crime twice. The courts refused to toss the case because of the doctrine of stare decisis.

You see, there was a long line of precedent finding that a person's 5th Amendment rights weren't violated if he were charged by both state and federal prosecutors for the same offense. Now, to be fair, the elements of a federal crime often differ (if only slightly) from the elements of the state offense. The case that comes to mind is that of the officers charged with beating Rodney King. The officers were found not guilty in state court but they were then charged in federal court with violating Mr. King's civil rights.

The US Supreme Court created the concept we now know as the separate sovereigns doctrine back in the days of slavery. The idea was to prevent states from blocking the return of fugitive slaves. Over the following 170 years, 30 justices have voted to uphold the doctrine, thus creating precedent.

But, and this point cannot be emphasized too much, just because a doctrine has a lineage of precedent behind it, doesn't mean that the doctrine is good or just, or that upholding the doctrine is just. While a certain degree of consistency is needed in our courts, adhering to a policy just because "that's they way it's always been" isn't sufficient justification to adhere to a doctrine created to preserve slavery.

There is no provision in the Constitution that gives the government the right to try a person more than once for the same crime. The separate sovereigns doctrine was created out of thin air by a Court whose duty it was to protect the institution of slavery.

The US Supreme Court heard oral argument on Mr. Gamble's case on Thursday. According to ScotusBlog, Mr. Gamble's attorney, Louis Chaiten, went all-in on "originalism" and focused on 18th and 19th century concerns and reservations about double jeopardy.

But the justices weren't having any of it during oral argument - and although that is not always an indicator of how the decision will go -- it does at least give an idea of the issues the justices will be considering when it comes time to issue a decision. If the questions are any indication, Mr. Gamble is unlikely to get any relief as most of the justices seemed to be concerned with the federal government's ability to prosecute folks - and being able to exert leverage over those caught up in investigations by a special prosecutor.

Justices who are considered liberal defended the doctrine. Justices who are considered conservative defended the doctrine. Justices who are considered "originalists" or "textualist" or whatever other word used to describe their opposition to the concept of a living constitution defended the doctrine.

But the unlikely trio of Ginsburg, Gorsuch and Thomas joined together in questioning the existence of the doctrine - just another reminder that focusing on a narrow range of issues when a person is nominated to sit on the Supreme Court doesn't always predict what a judge will do once he or she is sitting with the Nine in Black.

What will Cliven Bundy do next?

On December 23, I wrote about the dismissal of the cases against Cliven Bundy and his band of Angry White Men with Guns.

Today US District Court Judge Gloria Navarro decided that the US Government violated Brady to such an extent that the only cure was for a dismissal with prejudice.

And so it goes, Cliven Bundy and his band of unmerry men have, once again, gotten away with their criminal acts - this time thanks to federal prosecutors screwing the pooch and withholding potentially exculpatory material from the defense.

There is no question that Bundy and his boys occupied federal lands, with weapons, despite orders to vacate the premises. There is also no question that this is part of an effort among wingnuts to privatize federal lands out west for the benefit of a few.

There is also no question that what happened in this case happens in criminal cases all across this country every day of the week. This one turned out differently because a disenchanted federal witness testified about the evidence that was withheld. And that's not what ordinarily happens.

As defense attorneys we have no idea what evidence the government has generated. We only have access to that evidence prosecutors turn over to us and that evidence that we subpoena because we have a feeling that something might not be right.

The problem is that if no one turns it over and the defense doesn't know it exists, there's no consequence for withholding it. And with the sheer number of cases that end up with a plea agreement because the defendant can't post bail or otherwise get out of jail after being arrested, there isn't time to dig deep enough to find out what hasn't been produced.

While today's decision is a win for the rule of law, it is also further evidence that we have a two-tiered justice system - one for those who can afford it and another for those who can't.

The Bundys fell in the former, most of our clients fall in the latter.

You couldn't screw it up this bad if you tried (or could you?)

I have very mixed emotions about the dumpster fire that has become the Cliven Bundy trial. This week, US District Judge Gloria Navarro declared a mistrial after finding that government prosecutors had withheld potentially exculpatory evidence from defense attorneys. She will decide in February whether the government's case should be dismissed with prejudice.

Mr. Bundy and his band of merry men became famous when they resisted the government's effort to collect grazing fees back in 2014. For more than 20 years Mr. Bundy had been grazing his cattle on federal land in Nevada without paying grazing fees.

After an armed stand-off (sound familiar), government agents left with their tails between their legs and no money in their wallets. Los federales made no other attempts to collect the money owed to taxpayers.

Emboldened by his success, Mr. Bundy and his band of merrier men decided that Oregon would be the next front in his battle against the government. Mr. Bundy's group carried out a 41-day long armed occupation of the Malheur National Wildlife Refuge in support of Oregon ranchers sentenced to jail for setting fires on federal lands.

Now, before I go any further, it's time for a little digression. During the occupation, federal agents treated the Bundys with kid gloves. I shudder to think what the government's reaction would have been had the occupiers been black or brown or any color other than white.

Despite video evidence, e-mail messages, photos and Facebook posts, the government's case has crumbled because prosecutors failed to turn over surveillance footage, threat assessments and FBI reports - after first denying they ever existed. Even more disturbing is the admission (again, after initial denials) that prosecutors had recordings of another defendant's jailhouse conversations with his attorney.

Of course, for those of who work in the criminal (in)justice system, none of these revelations are all that surprising. What's generally more surprising is them coming to light.

As much as I hate to see armed wingnuts like Cliven Bundy and his bank of merry men running around free, I cannot stand by and try to justify the government's failure to disclose potentially exculpatory evidence to the defense. And that paints it just a little too sterile as prosecutors lied and misrepresented the truth to the Court. That's not a failure to disclose, that's a freaking ethics violation.

I don't think that Judge Navarro has any other choice but to dismiss the case outright next year due to prosecutorial misconduct.

The only question I'm left with is whether or not the government torpedoed its own case because it didn't want to make martyrs of the Bundys.

Yet another reason why it sucks to be poor

Nowhere in the warning does it say that the government could come and ask you to pay for your appointed lawyer's services.

Kelly Unterburger found that out the hard way. After being arrested in 2011 for possession of a controlled substance, Mr. Unterburger asked the court to appoint him an attorney because he was indigent. By the time his case was resolved in 2014 (he spent the entire time in jail), he was presented with a bill from Johnson County for almost $10,000.

The State of Texas allows counties to recoup the cost of appointed attorneys from defendants, provided they warn defendants that they will be held responsible for the fees.

Prior to September 1, the government had until sentencing to determine whether or not a defendant would be required to pay for his or her appointed attorney. That determination was made on a defendant's financial status up to that point. A new law makes it possible for counties to come back at any time during a defendant's sentence (whether he be in prison, jail or on probation) to re-evaluate the defendant's ability to pay the fees.

Hill County District Attorney Mark Pratt says the bill was designed to protect the interest of law-abiding citizens who are being asked to pay for counsel for indigent defendants.

Bullshit!

The real purpose of the law is to coerce more indigent defendants to plead their cases early in the process in order not to run up high attorney fees. The new law serves to punish those who exercise their right to trial by jury in a criminal case.

This is part of a larger war on the poor that has been waged for decades in this country - and in this state. Most defendants are indigent to one degree or another. They spend months, if not years, in jail awaiting the resolution of their cases because of our for-profit bail bond system. Then, once the case is resolved they get hit with a bill for attorney fees.

Meanwhile the wheels of our criminal (in)justice system just keep a-chugging along.

Getting around the Fifth

On Tuesday the Maryland Court of Appeals ruled that Baltimore police officer William Porter would have to testify at the trial of five other officers charged with the manslaughter and other crimes in the death of Freddie Gray last April. You may recall that Mr. Porter was the first officer tried in the matter (ironic considering he is the only black officer charged) and that his trial ended in a hung jury.

Prosecutors sought to compel Mr. Porter to testify against his fellow officers in their trial under a grant of limited immunity. Mr. Porter refused, citing his Fifth Amendment protection against self-incrimination. Prosecutors argued that since they wouldn't be able to use any of his testimony against him at his re-trial, that Mr. Porter's Fifth Amendment protection wasn't being violated.

The highest court in Maryland agreed with prosecutors and ordered Mr. Porter to testify.

I am deeply troubled by the court requiring a man who is facing criminal charges for the same incident being compelled to provide testimony at the trial of the other officers. While the words he says from the stand aren't admissible at his trial, you better believe that prosecutors will parse his testimony for anything they can use at his re-trial. That testimony will be compared to the statements he has given in the past and prosecutors will jump on any inconsistencies or contradictions.

While the Maryland Court of Appeals may be living under the fiction that prosecutors only want Mr. Porter's testimony because he is a witness to what happened to Freddie Gray last April, the truth of the matter is the prosecutors are trying to find a way around the Fifth Amendment. They couldn't call Mr. Porter to the stand at his own trial because he has a constitutional right to remain silent. This cynical end around is nothing more than a ploy to force him to testify under oath. Make no mistake. This is all about the government forcing a criminal defendant to undergo cross-examination on the witness stand.

This case is also an example of how bad facts make even worse law. Sure, the court may very well try to couch its ruling in all sorts of language that seeks to limit the scope of its holding, but they have now given prosecutors a new tool to use in compelling a criminal defendant to testify. This guiding principle of American jurisprudence is why the Fourth Amendment looks like a slice of swiss cheese. It's why we are strapping down citizens accused of a misdemeanor and jabbing a needle in their arm.

First the plea, then the admonishments

On Friday members of the Harris County Criminal Lawyers' Association stood outside Judge Michael Fields' courtroom handing out 3x5 cards listing the rights a criminal defendant has under the 5th and 6th Amendments. They did this to protect unrepresented defendants making their first appearance from Judge Fields.

If you are taken into custody in Harris County and aren't bailed out immediately you will probably find yourself standing in a room staring at a video monitor as a magistrate informs you that it would be best if you kept your damn mouth shut. He then asks if you want to plead guilty. If not, a plea of not guilty is entered and you are returned to your holding cell until you bond out or until you are moved to a pod.

For those who get bonded out earlier they are released from the jail and handed a piece of paper telling them when and where they need to appear. At that first appearance in court they are called up to the bench and the judge tells them it would be best if they would keep their damn mouths shut. If they've bonded out it's assumed that they are pleading not guilty.

Unlike what you see on television or in the movies. There is no dramatic scene where a defendant is brought into a courtroom with an attorney to enter a not guilty plea and argue over the amount of bond required to get out of jail. You see, we have a bond schedule in Harris County that takes the guesswork right out of the entire process. There's no need to talk about mitigating circumstances or a defendant's clean record or ability to pay, all a magistrate has to do is look down the list and set bail.

But then we come to the 11th floor of the Harris County Criminal (In)justice Center and the courtroom for County Criminal Court at Law No. 14. That's where the rules we follow in the normal world don't apply. It can be like stepping out into another world.

This is a court in which every defendant charged with driving while intoxicated will be ordered to install an ignition interlock device on their car -- even the one who blew 0.0 who was suspected of having smoked marijuana. Let's just forget about the fact that the interlock device can't detect THC in a person's breath. But, dammit, if he was charged with DWI we're going with the interlock anyway. And heaven help the poor soul who "tripped the wire" because he had used mouthwash just before starting his car. If anything bad comes back on that report he's going to jail overnight to teach him the lesson that neither the state nor its devices are ever wrong.

Step into the courtroom and you will see Judge Fields call up all the defendants making their first appearances who bonded out and who haven't hired attorneys. And then, without letting the people in front of him know they have the right to remain silent and the right to consult with counsel, he asks them how they wish to plead. Right there. No one is provided with any information about the consequences of pleading guilty and no one is warned of the potential collateral consequences of such a plea.

And once it's entered, it's final. No turning back. No changing your mind.

A judge isn't part of the prosecution's team. A judge is supposed to a be a neutral and unbiased referee who's sole job is to make certain that a defendant's due process rights are protected and that both sides follow the rules of evidence and procedure during the course of the proceedings. Whether a person pleads guilty or not is of no concern to the judge - at least it shouldn't be. In Texas we are all guaranteed the right to a jury trial in a criminal matter. Defendants and their attorneys shouldn't have to fight the judge to exercise that right.

The entire criminal (in)justice system in Harris County is designed to coerce defendants into pleading guilty. Whether it's excessive bail or bond conditions; or whether it's judges who want to prevent folks from exercising their right to a jury trial; the game is the same.

Judge Fields isn't the only one playing this game. But he was certainly the most egregious this time around.

One way to reduce indigent defense bill

So you think it's hard to get a court-appointed attorney in Harris County. There are judges who will tell defendants who have been able to scrape up enough money to post bond that they have to sell everything they own before an attorney will be appointed for them.

Nevermind that in most cases the bond money was put up by family members or friends and not by the actual defendant. In Harris County, if you're not wearing an orange jumpsuit when you ask for an appointed attorney you have a very hard road to hoe.

The judges know there are plenty of attorneys who will take cases on the cheap and plead their clients out on the first or second setting without ever investigating the case. The judges seem to have no idea what it actually costs to hire an attorney in Houston who's actually going to work on your case. The result is a whole lot of folks with convictions on their records who may have stood a good chance of having their cases dismissed or the charges reduced after a little bit of legwork on the part of their attorneys.

But, hey, it clears another case of the docket and that's a good thing. Right?

In McLennan County (that would be Waco for those of y'all not familiar with the lay of the land), they have taken the denial of counsel one step further. If you want to have an attorney appointed to handle your case you have to fill out an application. That application will then be investigated by a sheriff's deputy who's going to come to your house and take a look around to see if you're really as indigent as you say you are.

Now, just a word of warning here. There are those of us who practice criminal law on a regular basis who would be very hard pressed to come up with a retainer fee on a felony case. I know plenty of attorneys who do quite well who would be considered indigent if they were charged with a felony in federal court.

What's really going on up in Waco is the courts are trying to make it harder and harder for those accused of serious crimes to defend themselves. Just because someone was able to borrow money from their parents or their grandparents to post bond doesn't mean they have the money to pay an attorney. Parents and grandparents will often do whatever they can to help out their wayward children and grandchildren - but you can't expect them to pick up all the bills.

In sending out a sheriff's deputy to investigate those seeking appointed counsel, the courts are doing their best to intimidate those who are able to post bond not to ask the county to pick up the tab for their lawyer. To make matters worse, officials like to brag about arresting folks on felony charges of falsifying government documents when they make a questionable statement on their application.

As I said yesterday, if the county is concerned about the amount of money they're spending on appointing lawyers for indigent defendants, then maybe law enforcement officials and prosecutors should think twice before arresting folks or filing charges. A little discretion here and there can go a long way to reducing the county's legal bills.

Now I don't think I'm going out on a limb here but I would imagine that the number of black defendants asking for appointed counsel is probably disproportionate the African-American population in McLennan County which means this investigation program is just another tool for the state to discriminate against blacks.

The worst thing about the article is the way in which the writer is all rah-rah with the police and court officials. Nowhere in his piece does he even raise the question of whether this program serves to deny folks their constitutional right to counsel when the state is attempting to take away their liberty. I guess being a sycophant is much easier than being an actual reporter.

For those of y'all who wish to let the reporter know what a great job she did regurgitating the Sheriff's PR release, her name is Stephanie Butts and her e-mail address is sbutts@wacotrib.com. Here's her LinkedIn profile.

Empty threats

On Monday while I was sitting in the 174th District Court in Harris County a colleague and I were discussing some legal matters involving the case I was set for trial in. We also knew the case wasn't going on Monday so we were sitting around waiting for a new trial date.

Then I heard it.

Judge Ruben Guerrero, my buddy Mark Bennett's most favoritest judge, was admonishing a defendant who had come to court without an attorney. He told the defendant that if he didn't show up to court on the next setting with an attorney that he would throw him in jail.

Really? On what basis, Judge Guerrero?

A criminal defendant has a constitutional right to an attorney - if he so chooses. If he can't afford to hire one he may ask the court to appoint one for him (and there will be more about this tomorrow). But nowhere does it say that a criminal defendant must have an attorney.

I can guarantee it wasn't one of the man's bond conditions that he hire an attorney. The judge wasn't threatening to hold him in contempt - and that wouldn't even stick because no matter how many times you tell someone to come back to court with an attorney, if they can't afford to hire someone and if the court won't appoint them an attorney, they ain't coming back with one.

Now I will agree that the defendant in our little incident would be much better off with an attorney than without. But if he makes the choice not to hire anyone, then that's his choice and there's nothing the court can do about it.

If Judge Guerrero is so damn concerned about the man not having an attorney then he should just go and appoint someone to represent the defendant. That would solve everyone's problems. Well except for the bean counters who keep tabs on how much each court spends on appointed counsel and "encourages" the judges to help the county save a little scratch here and there.

There's no place on the bench for bully tactics like those used by Judge Guerrero. And there's no place for bullies on the bench.

Trusting blindly and swallowing whole

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.  - Fifth Amendment, US Constitution

Back in September 2011 a US drone flying over Yemen fired a missile at a car in which two American citizens were riding. The blast killed Anwar al-Awlaki, a radical cleric who may or may not have had ties with al-Qaeda and Samir Khan. Two weeks later another drone fired a missile into a crowd at an outdoor cafe killing Mr. al-Awlaki's 16-year-old son, Abdulrahman, who was also an American citizen.

The US government claimed that Mr. al-Awlaki was in a leadership position in al-Qaeda and that his murder was justified in protecting the national security of the United States. The government also claimed that it had no idea that al-Awlaki's son was in the cafe when it was attacked.

The decisions to kill these Americans was made by a small cabal of government officials huddled in the White House. There were no formal charges. There were no indictments. There were no probable cause hearings. There was no discovery. There was no trial. There was nothing but a star chamber who looked over a list of names and decided who would live and who would die.

Mr. al-Awlaki's parents brought suit against the United States government for the murder of their son and grandson. They alleged that the government's actions had amounted to depriving Mr. al-Awlaki and his son life without due process of law.

Last week US District Court Judge Rosemary Collyer of the District of Columbia tossed out the lawsuit. She chose not to believe that the government had deprived both Mr. al-Awlaki and his son of their due process rights. She fell lockstep in with the official line that we live in dangerous times and that we should trust our government to make the right choices.

In her opinion, Judge Collyer ran through a list of government entities that had looked into Mr. al-Awlaki's background and status. She fully accepted the proposition that if a government agency investigates a matter and draws a conclusion that the conclusion must be accepted as valid.

She, of course, never seemed to give a second thought to the idea that sometimes the government gets it wrong. Everyday across this country there are juries who return verdicts of not guilty in criminal cases because they didn't believe the government had proved its case beyond all reasonable doubt. There are cases dismissed in courts across their country every day because prosecutors come to the realization that they just can't prove their case.

But for Judge Collyer you don't even have to go that far. In her mind the allegation alone - if it is repeated by enough people - is sufficient to prove guilt.

The evidence supporting the government's allegations against Anwar al-Awlaki was never tested in the crucible of trial. The government's witnesses were never challenged on the stand. Mr. al-Awlaki was never given the opportunity to respond. In short, the system of laws that we have in place to "protect" those charged with criminal offenses was ignored by a judge who was looking for any reason to dismiss the case.

In this case the US government exercised its most invasive power - the power to determine who should die - against three American citizens without affording them due process of law. And a judge who swore she would uphold the law and the constitution blindly accepted the government's story without so much as a doubt.

The message is quite clear. The government is here to protect you. Such quaint notions as due process only make it harder for the government to do its job. Besides, why would anyone from the government lie?

Cameron Willingham was accused by the State of Texas of setting his house on fire and killing his children. He was indicted. He was tried. He was convicted. He was murdered by the state. And he was innocent. Sure, he was afforded his due process rights - and look how much good it did him.

Michael Morton was accused by the State of Texas of killing his wife. He was indicted. He was tried. He was convicted. He sat in prison for 25 years before he was exonerated when his attorneys discovered the games that Williamson County prosecutors played during the investigation and during trial. He was afforded his due process rights - and he lost 25 years of his life.

Anthony Graves was accused by the State of Texas of murder. He was indicted. He was tried. He was convicted. He was sentenced to death and sat on death row for more than two decades when his attorneys uncovered the illegal and unethical actions taken by the prosecutor. He was afforded his due process rights - and stared death in the face.

But still Judge Gallyon thought it was enough that someone from the government said that Anwar al-Awlaki was a bad guy and deserved to die. And that is a very frighting notion. The fact that it was a judge makes it even worse.

H/T Democracy Now! and Center for Constitutional Rights

You have the right to have your silence used against you

It's not an unusual occurrence for a potential client charged with driving while intoxicated to tell me during the initial interview to tell me that the police never read him his rights. It is then up to me to tell him that there was no need for the police to remind him of his right to remain silent because they weren't interested in asking him any questions once they arrested him.

The touchstone for the Fifth Amendment has long been custodial interrogation. If the police want to talk to you about what they think you did after arresting you, they have to read you your rights. If you're not under arrest, then all's fair. This distinction has led to much genuflection and tortured language as the courts attempt to explain how a suspect, handcuffed in the backseat of a police car, is not considered to be in custody.

Forget all about that quaint notion of being free to leave. I'm not certain how many folks cuffed and sitting in the backseat of a car without the ability to open the door can be considered being anything other than in custody.

And this is the context in which Mr. Genevevo Salinas of Texas found himself. It seems there was a party one night in Houston which Mr. Salinas attended. Sometime during the night, the hosts of the party found themselves on the wrong end of a shotgun. The investigation led the police to Mr. Salinas.

Mr. Salinas decided to accompany the police to the station for an interview. Over the course of an hour he freely spoke with detectives about his knowledge of the two dead individuals and the party. During the interveiw, Mr. Salinas told the police he had a shotgun. One question led to another and the police asked Mr. Salinas if his shotgun would match the shells found at the scene.

Mr. Salinas then decided that the best thing he could do was keep his mouth shut.Mr. Salinas was then taken into custody on traffic warrants as the police didn't have enough evidence to charge him with murder. That changed when a witness came forward and told police that Mr. Salinas had confessed to him. Mr. Salinas was then arrested for the murders. At trial the police testified that he answered their questions up until they asked him about his shotgun. The jury, not surprisingly, found Mr. Salinas guilty.

The 5th Amendment states that no person "should be compelled in any criminal case to be a witness against himself." The language is quite clear - a person accused of a crime has a right to remain silent and that silence may not be considered as evidence against him at trial. And that is exactly what happened to Mr. Salinas at trial. The fact that he chose not to answer a question (for whatever reason), was presented as evidence of guilt at trial.

In Salinas v. Texas, 570 US ___ (2013), the Supreme Court held, in yet another 5-4 decision, that there was nothing wrong with the prosecution introducing evidence of Mr. Salinas' silence during questioning. The majority opinion even noted that in the Berguis case, the Court held that sitting silent for almost three hours in the face of continuous interrogation didn't constitute an invocation of one's 5th Amendment right to remain silent. Therefore, the majority reasoned, not answering one little question can in no way be inferred as an invocation of the right to keep one's mouth shut.

The absurdity of the decision is obvious. We all have a right not to answer questions from the police. It's called the right to be left alone. We don't have to invoke that right. We exercise it when we choose not to answer any questions. Just because Mr. Salinas was a suspect in a murder case doesn't mean that he somehow loses his 5th Amendment rights unless he's arrested or makes some kind of affirmative statement that he is remaining silent.

The 5th Amendment says nothing about being under arrest or in custodial interrogation. It states simply that one's silence may not be used against him in a criminal trial. Mr. Salinas' silence was used against him. Of course Justice Scalia wrote in his concurring opinion that all the 5th Amendment does is protect a defendant in a criminal case from being called to the stand by the state - in his mind there is no protection from the government asking the jury to infer guilt from a defendant's silence. Okay - except that such an interpretation renders the protection against self-incrimination fairly illusory.

Our criminal (in)justice system requires the government to prove up each and every element of their case beyond all reasonable doubt - it requires nothing of the defendant. The fact that a defendant didn't answer one or more questions posed by the police is irrelevant to the question of whether the state met its burden. Allowing the state to ask a jury to infer guilt from a defendant's silence is tantamount to reducing the state's burden of proof (or placing a burden to disprove on the defense).

Bennett for Court of Criminal Appeals

If there was ever a place that needed a proponent of limited government it is the Texas Court of Criminal Appeals. In no other area is the need to limit the power of the government quite as profound.

The government has the power to take away a man's life - either by force or by time. It is the most frightening power imaginable and it is that power that must be limited. And the most effective way to limit that power is to enforce the right of the people to be left alone by the government.

That right, in turn, is protected by the Fourth, Fifth and Sixth Amendments. The courts have only been too happy to ignore the words in the Constitution and substitute their notion of judicial efficiency and economy in their place. In order to affirm lower court decisions, our appellate courts have looked for every possible way to justify actions of the state that violated the provisions of the Fourth, Fifth and Sixth Amendments.

Into the void must step a person who is willing to stand alone to defend those rights.

Mark Bennett is that person.

Mark can be abrasive. He can be snarky. He can be a tad bit arrogant. But he is also a man of conviction. He is a man who believes that the power of the government must be limited by enforcing our right to be left alone.

Mark Bennett is running for a seat on the Texas Court of Criminal Appeals as a Libertarian.

Now if you're happy with the current state of the criminal (in)justice system in Texas, Mark isn't your man. If you think it's okay for the Chief Judge to shut down the clerk's office to prevent a man's attorneys from filing a last minute pleading, then Mark isn't your guy. If you don't understand that when the state takes away the rights of those people, that they are taking away your rights, then Mark isn't for you.

But if you believe that right must trump expediency, then you need to get out and vote for Mark Bennett.

See also:

"Mark Bennett, Court of Criminal Appeals," Simple Justice (March 5, 2012)

Listening in

While Harris County is looking to install video conferencing in the jail and promising that the integrity of the attorney-client relationship will not be compromised, the word on the street is that the Galveston County Jail was recording phone calls from the jail between inmates and their attorneys. And, as if that's not bad enough, some of these recordings were forwarded to the Galveston County District Attorney's Office.

Of course Jack Roady, the Galveston County DA, claims that the procedure is being stopped. Excuse me, Jack? "Being stopped?" Really. Either the phone calls are being recorded or they aren't. It's quite easy to stop the procedure.

The very fact that those calls were recorded raises the question of whether or not an agent of the state listened. And what about those cases in which the DA didn't request recordings of jail house phone calls? How many people had their right not to incriminate themselves infringed upon by Galveston County? How many had their right to privileged communication with their attorneys violated?

Now it's time for the DA's Office to come clean and notify defendants and their attorneys on all cases in which these recordings were made and forwarded to the prosecutors. If there is any honor in the office, Mr. Roady should sign off on orders granting writs of habeas corpus in each and every one of those cases.

The actions of Galveston County are reprehensible and call into question the validity of the criminal (in)justice system on the island.

Here's a little Blondie for y'all.

You're not under arrest unless I tell you you're under arrest

cus·to·dy

noun \ˈkəs-tə-dē\

plural cus·to·dies

Definition of CUSTODY

: immediate charge and control (as over a ward or a suspect) exercised by a person or an authority; also :safekeeping

Just what does it mean to be in custody? If one is not free to leave, it would be reasonable to assume that he is in the custody of someone else. But what if that other person doesn't tell him that he isn't free to leave? Is a person any less in custody because he doesn't realize he's in custody?

According to the Austin Court of Appeals, in State v. Chupik, No. 03-09-00356-CR (Tex.App.--Austin 2011) that's exactly what it is.

It would seem that Randall Chupik was driving down W. 6th Street in Austin at one o'clock in the morning. A police officer stopped Mr. Chupik for weaving within his own lane (not a traffic violation). The officer testified at a suppression hearing that he had probable cause to arrest Mr. Chupik after waving a pen in front of his face. He also testified that Mr. Chupik wasn't free to leave.

After conducting the HGN test, the officer had Mr. Chupik perform other coordination exercises and asked him a series of questions. At no time did the officer tell Mr. Chupik he couldn't leave.

The Travis County trial court granted Mr. Chupik's motion to suppress on the grounds that the officer conducted a custodial interrogation when he asked Mr. Chupik questions after the HGN test and without warning him of his Miranda rights.

The Austin Court of Appeals upheld the trial court's decision on appeal so the state appealed to the Court of Criminal Appeals who reversed and remanded the case back to the Austin Court of Appeals.

This time around the Austin Court of Appeals held that a person is only under arrest (for Miranda purposes) if a reasonable person would assume, under the same circumstances, that he wasn't free to leave. The court also held that it didn't matter if the police officer felt the suspect was in custody. It only mattered if the officer told the suspect that he wasn't free to leave.

Nevermind the fact that we all know that once an officer begins conducting roadside coordination exercises we aren't free to go. Let's be real. Once that officer stops you, unless he tells you you can leave, you can't leave. It doesn't matter whether he says it or not.

This legal fiction that you're not under arrest if you don't know you're under arrest is yet another example of the courts bending over backwards to find ways to weaken the protections of the Fourth and Fifth Amendments.

I'll have a fifth, please

On Thursday morning, Harris County Assistant District Attorney Rachel Palmer appeared before a grand jury looking into the troubled HPD mobile alcohol testing vans (BATmobiles). Ms. Palmer invoked her Fifth Amendment right to remain silent and refused to answer any questions.

The grand jury then filed a motion to compel with State District Judge Susan Brown. A hearing on that motion was held Thursday afternoon after which Judge Brown announced she would hear from both sides on Monday.

Now why would the ADA invoke her right to remain silent? Don't they like to tell us that an innocent person has nothing to hide? That our client had the opportunity to give his side of the story but chose not to?

And how might her answering questions incriminate her?

Did the Harris County DA's Office know about the problems with the BATmobiles? Did prosecutors provide that information to defense attorneys? Were prosecutors aware they were putting on perjured testimony regarding the reliability of the breath test machines in the vans? Did the DA's Office prosecute motorists knowing that the "evidence" upon which they relied was faulty?

However this shakes out, it's a black eye for Harris County DA Pat Lykos. It doesn't look good when a prosecutor refuses to answer questions from a grand jury investigating the conduct of both the police and the DA's Office.

I just wonder if the DA's Office is so hell bent on prosecuting DWI's that they will violate the law in so doing, what do they do on more serious cases?

See also:

"Your Fifth Amendment at work," Defending People (12/15/11)
"Motion to compel," Life at the Harris County Criminal Justice Center (12/15/11)

Shhh! It's a secret

Naturally the very existence of the document is a national security secret (or at least a pinkie-swear secret) - but what you expect when the document in question is used to justify the murder of an American by his own government?

Jeff Gamso had the right idea this past Sunday. Reading about the memo and what may, or may not, be contained within is the equivalent of one of those friend of a friend stories that Jan Harold Brunvand collected in his quest for urban legends.  

The memo, written last year, followed months of extensive interagency deliberations and offers a glimpse into the legal debate that led to one of the most significant decisions made by President Obama — to move ahead with the killing of an American citizen without a trial.

The secret document provided the justification for acting despite an executive order banning assassinations, a federal law against murder, protections in the Bill of Rights and various strictures of the international laws of war, according to people familiar with the analysis. The memo, however, was narrowly drawn to the specifics of Mr. Awlaki’s case and did not establish a broad new legal doctrine to permit the targeted killing of any Americans believed to pose a terrorist threat.

The Obama administration has refused to acknowledge or discuss its role in the drone strike that killed Mr. Awlaki last month and that technically remains a covert operation. The government has also resisted growing calls that it provide a detailed public explanation of why officials deemed it lawful to kill an American citizen, setting a precedent that scholars, rights activists and others say has raised concerns about the rule of law and civil liberties.

President Obama wasted no opportunity to claim credit for the killing of Mr. Awlaki (al-Zawahri in the original article) when he thought it might get him support for his upcoming re-election bid. But, once the criticism began rolling in, President Obama and his minions circled their wagons. And now we have this secret memo (that supposedly exists) written for the express purpose of justifying state-sponsored murder.

The legal analysis, in essence, concluded that Mr. Awlaki could be legally killed, if it was not feasible to capture him, because intelligence agencies said he was taking part in the war between the United States and Al Qaeda and posed a significant threat to Americans, as well as because Yemeni authorities were unable or unwilling to stop him.

See, that's all you need to know. Our intelligence agencies said so - therefore it must be the truth. Because he said some bad things and because some people did some bad things we must kill him. We must ignore the Constitution in order to protect ourselves.

Or some line of garbage like that. We live in a society in which a great number of folks don't believe anything the government tells them. President Obama could tell everyone today is Wednesday and there will be a segment of the population convinced he is lying. Yet these same folks have no problem believing the government after it orders the killing of an American citizen.

But, if I were the president, maybe I'd rather deal with the muted backlash after ordering a hit on an American citizen rather than questions about how poorly the economy is performing.

Death without due process

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. -- 5th Amendment

The United States has killed two of its own. On Friday, under orders from President Obama, a US military airstrike resulted in the death of Ayman al-Zawahri, an American-born cleric who had become a vocal critic of US policy. Killed alongside Mr. al-Zawahri was Samir Khan.

In July, U.S. Defense Secretary Leon Panetta said al-Awlaki was a priority target alongside Ayman al-Zawahri, bin Laden's successor as the terror network's leader.

The Yemeni-American had been in the U.S. crosshairs since his killing was approved by President Barack Obama in April 2010 — making him the first American placed on the CIA "kill or capture" list. At least twice, airstrikes were called in on locations in Yemen where al-Awlaki was suspected of being, but he wasn't harmed.

Mr. al-Zawahri and Mr. Khan weren't arrested for anything. They weren't charged with anything. They were never indicted. They were never tried before a jury of his peers. They were never convicted of any crime against the United States.

There was no due process of law. Mr. al-Zawahri and Mr. Khan, were deprived of their most basic rights because they dared to voice criticism of US policy in the Middle East.

President Bush (the Younger) created a shitstorm when he ordered suspected terrorists and their supporters to be held indefinitely in prison. People were also up in arms (at least those who knew what was going on) about the expanded powers given to the government to spy on its own citizens. But neither of those policies holds a candle to ordering the death of American citizens without affording them due process of law.

As flawed as the Troy Davis situation may have been, at least he was afforded his day in court. That's more than Mr. al-Zawahri and Mr. Khan were given. If los federales had the goods on Mr. al-Zawahri and Mr. Khan, why not obtain an indictment? Why not seek to extradite them? Why not put them on trial? If their deeds were serious enough to warrant death - then let's see the evidence. What are you afraid of, President Obama?

Is it because their "crimes" involved being vocal critics of your foreign policy? Is it because of the words they spoke and wrote?

Thus far President Obama has caught flak for the state of the economy on his watch. Now it's time he catches it for ordering the deaths of two American citizens and depriving them of their constitutional rights. When President Obama was sworn into office, he took an oath to defend the US Constitution.



President Obama, you just violated that oath. You were not only part of a conspiracy to deprive two American citizens of their constitutional protections - you were the man in charge of the conspiracy. In depriving them of their constitutional rights, you also conspired to murder the two men.

See also:

"Ron Paul calls US killing of American-born al-Qaida cleric in Yemen an 'assassination.'" Washington Post (Sept. 30, 2011)

"Obama praises al-Awlaki killing," Time (Sept. 30, 2011)

Celebrating the Fourth (of July) by gutting the Fourth (Amendment)

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness. Prudence, indeed, will dictate that governments long established should not be changed for light and transient causes; and accordingly all experience hath shown that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same object evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security. -- Declaration of Independence

What better way to celebrate the anniversary of one of the most important documents in American history than to institute a statewide No Refusal Weekend for the Fourth of July?

Anyone who is pulled over for suspected drunk driving will have to either submit to a breath test or have their blood drawn. Officials say it takes as little as 15 minutes to secure a warrant for a blood draw and five minutes after that to get the blood drawn.

Fifteen minutes to eviscerate the rights of the accused. Just fifteen minutes to determine whether or not probable cause exists to open a vein. Just fifteen minutes to order an invasive procedure for an offense that is but one step removed from a traffic ticket.

We can celebrate the Fourth by pretending that our Fourth Amendment right to be left alone doesn't exist. We all know there's no such thing as an unreasonable seizure when a man wearing a badge smells alcohol on the breath of someone driving a car.

We can celebrate the Fourth by pretending that our Fifth Amendment rights to remain silent and not to incriminate ourselves doesn't exist. DWI is the only offense in which a person choosing to remain silent and not incriminate themselves is legally used against them.

We can celebrate the Fourth by pretending that the right to counsel under both the Fifth and Sixth Amendments doesn't exist. Heaven forbid a person accused of drunk driving be allowed to consult with an attorney before answering any questions or performing roadside coordination exercises.

However you choose to celebrate the Fourth, be careful, be safe and don't become a victim of the police state.

The slow drip of tyranny

I came across the following message on one of the listservs I frequent the other day:

When did we as a society decide it was ok for the government to put electronic policing devices in our private homes and cars and to make up pee in cups every time we turn around? who is to blame? 

If everyone simply refused to comply with those conditions, what would happen?

Freedom is what would happen.

But it won't. We live in a society of lemmings. Few people are willing to rock the boat and those that do are labeled "troublemaker" and "subversive."

We have meekly turned to the state and asked it to protect us. We have decided that we would rather be safe than free. That we would rather have order than liberty.

We have sat by and watched as the state has whittled down the protections of the Bill of Rights. We have stood by as the police and courts have sliced, diced and chopped the Fourth Amendment into a meaningless melange of words on a piece of paper. Words now devoid of meaning.

We did nothing as the state assaulted our right to remain silent and not incriminate ourselves. We stood in awe as the Supreme Court made a mockery of the Fifth Amendment. Instead of having the right to remain silent and speak with an attorney before answering questions, the state now has the right to question us without an attorney unless we say otherwise.

We sat there blissfully unaware as our right to counsel was cut out from underneath us. We've allowed the Supreme Court to decide just what constitutes a critical moment in the criminal (in)justice system. I'm sorry, but being accosted by the police is the critical moment. Did someone along the way forget that we have the right to be left alone?

We have gladly handed over our freedom to the tools of the police state at airports and at the entrances to courthouses across this land. We have allowed the state to molest our children and terrorize the old, the sick and the infirm in the name of "protecting" us from terrorism.

We have gone from a society in which men were not afraid to sign their own death warrant by signing the Declaration of Independence to a society in which we are scared shitless to do anything that might bring attention to ourselves. We have gone from a society that took up arms and fought for its independence to a society that willingly bends over and takes whatever the state sends our way.

Why are we were we are now? It's because no one drew a line in the dirt and dared the powers of the state to cross it. It's because no one was willing to stand up and challenge the authorities.

Thomas Jefferson once said that "every generation needs a revolution."

We had one in 1776. Another one in the 1860's. Maybe it's time. Again.

A legal fiction

Texas courts like to maintain this legal fiction that license suspensions following a breath test refusal or failure are just civil matters. As a result of that fiction, at a license suspension hearing, the attorney for the Department of Public Safety must only show that the arresting officer had probable cause to believe the driver was driving while intoxicated.

Since it is treated as a civil matter, double jeopardy does not apply. Unless one is found not guilty by a jury, the DPS can still suspend a motorist's license even if the DWI case is dismissed.

Since it is treated as a civil matter, a motorist arrested for DWI does not have the right to consult with an attorney before deciding whether or not to submit to a breath test.

But how does the following statement fit within that legal fiction?

"If you refuse to give the specimen, that refusal may be admissible in a subsequent prosecution. Your license, permit or privilege to operate a motor vehicle will be suspended or denied for not less than 180 days, whether or not your are subsequently prosecuted for this offense." -- DIC-24

A license suspension certainly sounds like a criminal sanction and this nonsense about a refusal being admissible in a criminal prosecution exposes this legal fiction for what it is -- a cheap end run around the 5th and 6th Amendments.

At the point an officer asks a motorist to submit to a breath test, that motorist is already under arrest for drunk driving. At that time the motorist is sat down in front of the breath test machine, he isn't free to leave. No matter his response, the answer is testimonial. That triggers the 5th Amendment. As being asked to submit to a breath test is a significant moment in a DWI investigation, that should trigger the motorist's 6th Amendment right to an attorney.

Would the presence of an attorney gum up the works? Yep. Might allowing a motorist to consult with an attorney before deciding whether or not to blow result in more informed decisions? You bet. Would the presence of an attorney reduce the intimidation factor at the station house? Without a doubt.

It's time to end this legal fiction in Texas. Either eliminate the civil proceeding or be honest and criminalize breath test refusals. But doing that might just expose the legal fiction for what it was.

Reciprocal discovery would only harm defendants

Wouldn't it be great to have a laundry list of items that the state is required to produce prior to trial?

No more drafting discovery motions to get any recorded statements made by your client or anyone else the state intends to call at trial. No more drafting discovery motions to get a listing of any prior convictions for your client. No more drafting discovery motions to obtain search warrants, affidavits and returns. No more drafting discovery motions to obtain a list of expert witnesses the state intends to call. No more drafting discovery motions to get your hands on those experts' reports.

Sounds pretty damn good, doesn't it?

That is if you don't mind giving the prosecutor any written statements you client made, any information you have about his criminal record, a list of evidence you plan to introduce at trial, the names of your expert witnesses and any written reports they may have produced.

Reciprocal discovery only sounds like a good idea to the civil attorneys who are trying to find a way to replace their income after tort reform and attorneys who are too damn lazy to do any work on a case outside of standing alongside their client as they accept the state's latest offer.

The proposed legislation makes a mockery out of the 5th Amendment's protection against self-incrimination, emasculates the presumption of innocence and lowers the state's burden of proof.