Category: Legal Blog (Page 1 of 2)

Get Ahead of Generational Inflation

“I think this is the most extraordinary collection of talent, of human knowledge, that has ever been gathered at the White House, with the possible exception of when Thomas Jefferson dined alone.” — John F. Kennedy in 1962 while dining with 49 Nobel Laureates

“Fuck Thomas Jefferson.  He owned slaves.” — Your average bonehead

I’ve spent a lot of my life studying the founding fathers and the early republic.  In schools today they’re taught in two different forms:  1)  solemn reverence and 2) disregard and scorn.

These are both wrong ways to teach about the founders and other canonized leaders.  The first is wrong because it elevates them above us, as though their accomplishments are unattainable by us modern mortals.  Why reach for greatness if it is surely out of our grasp?

But it isn’t the first group I am here addressing.  It’s the second.  I don’t know how many times I’ve been in a conversation with a person, mentioned a great idea or deed by Washington or Jefferson and was immediately dismissed because the men were slave owners.

However, most of these people advocate various forms of slavery.  Recently John Stewart was quoted as suggesting a return of the draft.  This is a pretty popular concept not only with progressives, but also conservatives.  The only separating matter is whether the draft would be military or civil in nature.

Today, Supreme Court Justice Sandra Sotomayor advocated mandatory pro bono service for attorneys.

Allow me to recite the 13th Amendment:

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2. Congress shall have power to enforce this article by appropriate legislation.

Now, I’m certainly not the only person to suggest that the draft was unconstitutional.  Indeed, it’s been argued in front of the Supreme Court and summarily laughed out of the court despite just how obvious a violation it is to force men to labor against their will.  The court’s argument was simply, “Nuh huh, it isn’t slavery or involuntary servitude because we need it.”  This sort of sound legal thinking is why I’m glad we have a Bar Association holding the line on legal ethics and professional development.

It’s also why a sitting justice can advocate involuntary servitude and not immediately be laughed at.  “Because we want it” is a legal argument that has stood the test of time since the first ruler enacted his first tax on a free man.

Gary Johnson is the presumptive presidential nominee for the libertarian party.  And yet he is advocating the imposition of anti-discrimination laws saying that the jewish baker should be required to bake the cake for the Nazi customer.  How is it that even so-called libertarians cannot see past their generation’s version of slavery?

What these people are caught up in is generational inflation.  The modern man may advocate slavery or involuntary servitude, but look with scorn upon those men of the past as though they are somehow less intelligent or more barbaric.  He’s completely oblivious to the fact that there has been no intellectual growth — he’s at the same place intellectually as the men of the past — he’s supporting forcing people to work against their will.  Now, if he wants to advocate the draft or compelling me to free work, then so be it.  But do not damn Thomas Jefferson for being a slave owner.  He was simply performing as a man of his time, just as draft advocates are today.

It should be our goal to get ahead of generational inflation.  That means we have to not just do the same bad things as before under a new justification or with only the veneer of growth, but rather let us think independently, embrace the good, and abandon the bad.  That is going to require us to always be in a place of intellectual insecurity.  Question your sacred ideals and embrace the possibility that you’re wrong.  It is my standard assumption in my ideals that I’m probably correct 75% of the time.  I figure that that means I’m pretty full of myself, but it also means that I’m wrong…. a lot.  It means that I’m constantly in a place where I have to reevaluate my beliefs constantly.  Insecurity, especially intellectual insecurity, is not fun, but it’s the only way to grow.  Be intellectually proactive, not simply reactive to your times.


Be Careful Who You Live With

The Supreme Court has issued another opinion on the Fourth Amendment, and *gasp*it further dilutes one of the most valuable liberties you have.  No surprise here.  Just in the short time this blog has been running you can see posts regarding the further degradation of the 4th.  The entire body of 4A jurisprudence is a whimsical walk down the erosion of your freedoms.  Don’t worry, there will be many more awful decisions to come.  You can find the full text of Fernandez v. California here:

First, a quick recitation of the facts:  Cops are told that their suspect is an an apartment.  They go to the apartment and a beaten woman answers the door.  They seek to do a protective sweep of the apartment but the suspect appears and tells the cops they can’t search his apartment.  The cops, with probable cause to believe he’d beaten the woman, arrest him.  They then return after they had taken the suspect to jail, and the woman consents to the apartment search which yields evidence of criminal activity.

Here’s the important fact:  the suspect already told the officers no.  They returned and got a yes after he was arrested.

This case focuses heavily on a few other cases, the largest being Georgia v. Randolf , 547 U.S. 103 (2006).  The main holding in that case was that if a person was present to tell the cops no, then another person could not give the cops consent.  The cases are similar, except here, the cops took the guy who said no, and arrested him, then came back and got their yes.

Next I’ll hit some main points in Justice Alito’s decision.

“And even where the police could establish probable cause, requiring a warrant despite the owner’s consent would needlessly inconvenience everyone involved—not only the officers and the magistrate but also the occupant of the premises, who would generally either be compelled or would feel a need to stay until the search was completed. Michigan v. Summers, 452 U. S. 692, 701 (1981)”

That’s correct, when your Supreme Court considers whether or not the 4th Amendment should be called to protect you, they’re considering “convenience”.

“As the Court put it, ‘the consent of one who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared.’ ” United States v. Matlock, 415 U. S. 164 (1974).

This is true, and while I believe a wrong decision, it is key to the Court’s holding in this case.

What they aren’t strongly considering is the holding in Randolph where they stated, “a physically present inhabitant’s express refusal of consent to a police search [of his home] is dispositive as to him, regardless of the consent of a fellow occupant.”  They aren’t overruling that holding; they’re placing far too much weight in the physical presence part.

Basically, they’re still onto the idea that if multiple tenants are present, the cops can’t just keep asking all the tenants until they get a yes, the Randolph holding, but that in this case, the no vote was gone, never mind that they made him go away.

Then there’s the added issue that comes with what is called the “good faith exception”.  Under this exception, an officer can make a mistake of fact, but still have that evidence admitted so long as he didn’t violate your rights on purpose.  Fortunately, the state of Idaho at least recognizes just how silly a rule this is and we don’t recognize it, but that isn’t going to help you on the federal level.  So when the officer approaches and gets permission to search your house from, say, an angry girlfriend, a neighbor, pretty much anyone, so long as that officer doesn’t KNOW that they didn’t have the right to give consent, that evidence can be admitted (again, not in Idaho).  In fact, the Court cites to another case, Illinois v. Rodriguez, 497 U.S. 177 (1990) where this very thing happened.  The cops wrongly assumed a person who gave consent to search was still a resident.  Yet because their assumption was a reasonable one, evidence was still admitted.

So the Defendant felt that he was protected under the 4th Amendment for 2 reasons:  1) because he did not allow the officers consent, so they removed him.  He feels that the other tenant’s consent is not valid then, as in the Randoloph holding; and 2) that his previous objection denying them consent was sufficient.

To the first point the court holds that “We therefore hold that an occupant who is absent due to a lawful detention or arrest stands in the same shoes as an occupant who is absent for any other reason.”

This is a decent statement of law so long as you accept the idea that the Matlock holding was correct giving each tenant the right to give consent.  I would say that the 4th Amendment requires informed consent from all parties, but I’m not a justice so we’ll just play along.  However, the above holding just doesn’t fit the facts of the case very well.  Why a tenant is gone shouldn’t matter, UNLESS, it’s because the cops physically removed him.  It’s almost like the joke from Ron White where he is arrested for being drunk in public after he was thrown out of the bar, “Hey, I was drunk in a bar.  They threw me into public.  I don’t wanna be drunk in public.  I want to drunk in a bar”:

The second argument is dismissed by the Court also on grounds of convenience.

“Suppose that a husband and wife owned a house as joint tenants and that the husband, after objecting to a search of the house, was convicted and sentenced to a 15-year prison term. Under petitioner’s proposed rule, the wife would be unable to consent to a search of the house 10 years after the date on which her husband objected. We refuse to stretch Randolph to such strange lengths.”  They then refuse to use the term “a reasonable amount of time”.

It appears that Justice Alito doesn’t understand that our Bill of Rights don’t exist in the name of convenience.  GET A WARRANT.  Let us consider this the above scenario.  Are you going to tell me that at no point during those 10-15 years would the officers be able to get a warrant?  Double so when you consider the case placed before the court.  The other tenant gave consent to a search of the house.  So you can now use an affidavit by her TO GET A WARRANT.  They’re removed any possibility of the suspect destroying evidence because he’s in county at this point.

The Bill of Rights is designed specifically to make life hard for government.  It’s there to protect us.

Everything that you need to know about this decision, and about the 4th Amendment as a whole is right here in Justice Ginsburg’s dissent: “The Court has accordingly declared warrantless searches, in the main, “per se unreasonable.  If this main rule is to remain hardy, the Court has explained, exceptions to the warrant requirement must be “few in number and carefully delineated.” (citations omitted for readability).

“Although the police have probable cause and could obtain a warrant with dispatch, if they can gain the con- sent of someone other than the suspect, why should the law insist on the formality of a warrant? Because the Framers saw the neutral magistrate as an essential part of the criminal process shielding all of us, good or bad, saint or sinner, from unchecked police activity.”

There are then a variety of property law arguments made, which are good, but not dispositive.

So, what does this mean to you?

Well, in his concurrence, Justice Thomas sums it up well:

“[c]o-occupants have ‘assumed the risk that one of their number might permit [a] common area to be searched.’” Ibid. (quoting United States v. Matlock, 415 U. S. 164, 171,(1974)).

So be careful who you choose to live with.  Be careful who you let into your home.  Many families have a fire plan.  Have a police contact plan.  Make sure each party understands that they are not to give consent to search.  And don’t go around beating up on women.  They might not care about protecting your sorry ass if you do.

Do You Need a Lawyer for Your DUI?

Short answer:  Yes

Long Answer:

So you’ve been pulled over and charged with a DUI.  You know you were drunk, so you figure you’ll just plea guilty and deal with it.  Since you know you’re guilty you figure that there’s nothing a lawyer can help you with.  Well, you’re wrong.  Get a lawyer.

Sometimes you do the one thing I tell people not to do over and again and flat out tell the officer that you’re drunk.  Even then your lawyer can help you.

When you hire a lawyer you get several benefits.

Firstly, you get the piece of mind of hiring a lawyer, then just forgetting the matter unless you have to show up for a sentencing.  You don’t have to show up at 8:30 to make your first appearance.  Rather your attorney fills out paperwork with the court, and then you don’t deal with the state again.  Your lawyer makes every meeting with the prosecutor.  All the paperwork goes through him.  You get to sit around and get back to your life.

Your lawyer knows the procedure.  If you look at your citation, you can see that you’re actually dealing with 2 issues.  The first is criminal, and the second is civil, with the Department of Transportation.  Most people who don’t get a lawyer, don’t know that they have to request that hearing or else they automatically have their license suspended.  You gotta read the fine print.

Why do you want that hearing?  Well, for starters, depending on how you do things, you can affect the dates of any suspension you do receive.  This might be really important if you REALLY need to drive.  Secondly, having a suspension hearing that hasn’t yet happened is a great bargaining chip to bring in to the prosecutor when you’re dealing with the criminal side of things.  Finally, the license suspension hearing results can give you a great first look at what the strengths and weaknesses of your case are.

Next, your lawyer is going to know the right rules and the right procedure to give you the best outcome.  He’ll know to demand a pretrial (though in Moscow they are very good and will give you one even if you don’t ask).  Your lawyer will make certain you can get a jury trial, because you have to ask for one.  Your lawyer will file the right papers at the right time to make sure  you have plenty of time to go over the evidence against you.  This is called the “discovery process”.

When the prosecutor provides all of the evidence against you, you get the biggest benefit of hiring a lawyer.  This is when you get a legal mind to pick through all of that evidence.  Your lawyer will see the cracks that most people miss.  He will be able to see if there if there was probable cause for the stop.  He will see if you were given proper warnings.  He will see if you were given your roadside sobriety tests properly.  He will see if your breathalyzer was properly calibrated.

When your lawyer finds these weaknesses he knows how to file the paperwork to attempt to get that evidence suppressed.  Even if he fails to get the evidence suppressed, oftentimes all it takes is the very possibility that the evidence against you will be thrown out to get the prosecutor to agree to offer a lesser offense.

Prior to trial your lawyer will go in to see the prosecutor in a pretrial conference.  This is when your lawyer and the prosecutor discuss your case together and decide what to do about you, you troublemaker you.  Your lawyer works with the prosecutor.  They know each other.  Your lawyer will always be taken more seriously by the prosecutor than you when he says that the prosecutor has weaknesses in their case.  Your lawyer will always be able to bargain better than you.

Sometimes your lawyer bargains better simply because most people don’t even know what to ask for.  Are you familiar with a Withheld Judgment?  Ask a lawyer what that is.  Do you know DUIs can be lowered from a second time DUI (with heavier penalties) to a first time DUI?  Do you know the difference between an “excessive” DUI with enhanced penalties and a regular DUI?  Do you know when to get an alcohol evaluation?  Do you know when it helps you and when it hurts you?

Finally, assuming that you are in fact dealing with a sentencing date, you want a lawyer with you.  He will advise you what to tell the judge.  If you’re looking at jail time, your lawyer will be able to make sure to ask for days that work with you.  He’ll make sure you have time to pay any fine.  And when it’s all said and down, your lawyer is there to let you know exactly what happened when you’re done.  Quite often people get out of the courtroom not understanding exactly what happened.  These mistakes and misunderstandings are the kinds of things that get you in trouble months later.

So get a lawyer.  When your liberty and property are on the line you need a specialist to protect you.

I love this song.

Permanence (A Post About Love and Divorce)

The concept of permanence is rather troubling to me.  I need to know that something is permanent.  This, I believe, is a very close tie-in between thinkers like myself, and your more religious types.  They (mostly) hold onto the idea that souls are immortal and we will find ourselves in heaven, valhalla, whatever, following our departure from this mortal coil.

Now, I personally do not ascribe to that belief.  I think when we die, we die, and we come apart, continuing the circle of life.  We came from star stuff only to return to star stuff.  But, as with most things, I think along larger time lines.  Again, I need something to be permanent.  I talk of my politics as playing the long game where we leave this planet and our species survives  forever, beyond even the death and rebirth of the universe.  If there is no chance for anything to be permanent, then I see no reason to care about any of this.  There is no reason to set an example with my life, or to even preserve our species another day.  I am a selfish man.  It is just that my utmost desire is permanence for our species, so my selfishness can be misconstrued as altruism.

I loved, no, strike that, I adored my ex wife.  Still do.  However, she is gone.  She has been for a few weeks shy of 2 years at this point.  Gone, and remarried.  Now, I have adapted as necessary, but I don’t believe I’ve adapted terribly well.  One of the hardest parts to deal with was the acceptance of the transitory nature of love.  One day I was told she loved me, the next that she wanted a divorce, her kind words going instead to a former friend.  Permanence indeed.

Now, I cannot control another human being, but I can control myself.  I still love my ex-wife, though sometimes I have to ask myself why.  It has crippled my ability to create good close relationships with other women.  I could not control her.  Indeed, I’m convinced my active desire to not control her was a large part of the downfall of the relationship.  But, I can control myself.  And in controlling myself and pushing women aside I can tell myself that something is permanent: my love for my ex-wife.

I’ve spoken at length about the issue of awareness.  Once a person has become aware of a problem, he is then in full control as to what he does in response to the problem.  At this point I think I’m nearing a place where I need to recognize my need for permanence, but to accept that perhaps the best course of action is to seek permanence elsewhere.  Perhaps by disconnecting from the permanence of the love for my ex-wife I will find nothing permanent in this life.  But by the same token, fortune favors the brave, and what joy is there in seeking permanence in something you can no longer have?

You may ask, “Why is this post in the Legal Blog?”.  Well, about half of my practice relates to family law.  What I have found so interesting about dealing with family law is that sometimes the lawyer’s most important job is managing the hearts and minds of their own client as well as that opposing party.  These are emotional issues that people deal with, and at times the best thing an attorney can do is tell someone things they are not ready to come across by themselves yet.  They sabotage their case through a lack of awareness, and perhaps by the overzealousness of their attorney who is enflaming and endorsing their hatred.

Be wary of the lawyer that wants to take everything to the mat.  Sometimes it’s better to let that $300 television go than to spend $400 on legal fees to save it.  Sometimes it’s better to bite your tongue and give up 2-3 days of extra custody each year than to have your child have to watch her parents go through a 6 month long nasty divorce.  Yet for others, perhaps you need to spend that extra time drawing things out into a nasty fight.  I see it with women especially.  Sometimes, women need to put up a fight for their own growth and to begin to learn their own value as humans, especially in relationships where they’ve been abused or have lived as the submissive housewife.

The point is that every person is unique.  We all have unique needs.  We are all in different places in our lives which have their own set of challenges and advantages.  When you hire a lawyer, you need one you can trust to see you as a person rather than a dollar sign.  You need a lawyer who adapts to your case rather than simply going through the traditional motions of trial prep.

Choose wisely.

In other news, I went to see this guy at the Alley the other night. Great show. It was also one of the few times I’ve ever been in a bar so packed I couldn’t drink for want of space to be able to lift my glass of Turkey.

Not a Good Idea

Look, I get that you may not like cops.  Hell, I’m generally distrusting of the police.  A large portion of why I’m a defense attorney is because of my distrust of the police, along with a bad run in with Moscow PD which resulted in having my Constitutional rights violated by one of Moscow’s finest.

That said, I’m not sure not letting cops into your establishment is a good idea.  There are a few reasons for this:

— it isn’t appropriately targeted.  It is the idea of the police in general that was being being kicked out.  Even someone as unfriendly toward the police as myself will admit that SOME police are necessary, even if the “some” is about 10% or so of what they have right now.  Maybe don’t let in ones with a track record of abuse.  Don’t kick them ALL out.

— You poked the bear.  Do you really think this is going to result in fewer cops around your establishment?  In fact, it’ll probably end up in more patrols, with people AROUND your business being harassed.  You don’t poke a bear.  You either kill it or you leave it alone.

— Additionally, I can’t imagine that you’re going to be a top priority to help when you actually call the cops.  And you ARE going to call the cops when you need them.  You run a hipster commie Portland coffee joint.  You do not run CD’s Smoke Pit, with their 10% discount to people carrying firearms.  CD’s will NOT need to call the cops to solve their problems.  You will.

— Finally, that cop you kicked out was none other than Jim Crooker.  He was my Staff Sergeant in Iraq.  He’s the most honorable officer I’ve met in my life.  He’s one of the precious few good men in a profession in desperate need of good men.  He does however need to grow his mustache back.  It was epic.  I promise.   Besides, I’m sure if you got the “red” in your “red and black”, those cops would just be soooooooo nice to everyone, just like in all of those other “red” countries.  So, congratulations on that, YAAFM.

Though I gotta say that comparison to the civil rights movement…… I think you’d probably take that one back if you could SSgt.

Baaaaaaack, in the Saddle Again

It appears that there’s been quite a gap between posting.  My apologies.  I took about a week off to dedicate all of my time to an impending trial.  It went quite well.

Following that, my young daughter decided that the best place to leave the water in a full 32 oz Nalgene bottle wasn’t actually in the bottle, but rather in my computer.   She then decided after about 4 hours of letting it stew that she should tell me.  Worry not dear current (and potential) clients, fortunately I have kept a backup of all of my files on an encrypted thumb drive.  After removing the back cover and cleaning up all the water, the computer worked, sans keyboard, power button, and mouse.  I could abide that.  One thing I couldn’t handle:  the computer was so slow that it could not keep up with my typing.  This resulted in me billing for only half of the work I’d done.  This was a nightmare I assure you.  Therefore I was not typing more than I had to.

So, deciding that I’m going to crack this thing open and fix it, I bought a full on external hard drive and moved everything over.  I had entertained using Carbonite online backup but I guarantee the NSA is all over that.  So, I cracked the computer open and immediately became convinced that I’m a fool that would be doing all of his work on his 6 year old backup computer.


So I grab a Blue Moon, an old toothbrush, some q-tips, and some rubbing alcohol.  After about an hour of removing a screw then taking a picture with my phone to be able to go backwards, I discover what seems like a perfectly legitimate culprit:


Now, this is a good picture, but it still does not fully show you just how thick this corrosion was.  It was AMAZING.  Well, I got it back together.  I had a small war with the ribbon connector for the keyboard.  A little research on the Youtubes showed me there was a hinge.  Once I flipped that it was smooth sailing.

Now I’m ready to give up the law and be a computer repairman.  100% full recovery.  Okay, maybe I’ll stick with the law, but I have to tell you, ramping up to normal speed after a week of the snail’s pace I was at, well, I’d say it was a difference between night and day, but it was more like the difference of a night on Neptune and a day on Mercury.

So, the computer is up.  Blogging shall resume tomorrow.


Okay, so Zimmerman was found not guilty.  I didn’t watch too much of the trial because I don’t really care to get caught up in the drama, though I did watch some of it, especially voir dire, simply because I wanted to watch how the big guns run a trial for my own professional education.  But here’s what you need to know legally speaking:  you weren’t in the jury box.  Now if you sat there for a few weeks, properly sequestered and not influenced by the disgusting display of racism by EVERYONE, and got to put your life on hold to give a man’s life a fair judgment, then your opinion matters.  Otherwise, shut up.  You don’t know anything.

Now the news has been hammering away at the race angle here.  It was the evil white guy who we later find to be hispanic shooting a sweet innocent little black boy.  When I couldn’t avoid having this trial put in my face, these are the two pictures that consistently came up:

Most popular picture of Zimmerman

Most popular picture of Zimmerman

Most common picture of Martin

Most common picture of Martin

They played it up like Zimmerman woke up thinking, “Let’s kill us some Darkies today!”  Us conservatives and libertarians are all sorts of incensed at the media.  We get mad and blame them for influencing everyone.  We act like we’re above it.  BUT, in the same breath you hear people talk about how there are going to be race riots.  Guess what Mac?  You think there are going to be riots because you are getting suckered in by that same media you think you can see through.  There aren’t going to be any riots.  But, by the same token, if the media has inflamed the black community into feeling like it’s open season on black men, wouldn’t it be justified for them to feel a need to fight back?  Would you not do the same?

Here’s the deal:  black people in America are kinda dumb.  They’ve gotten suckered in by media hype.  But they haven’t gone full retard. They aren’t going to riot.  They aren’t so stupid as to think there’s legit open deep injustice sufficient to riot and turn to violence.

Here’s what’s more:  white people in America are kinda dumb.  They’ve gotten suckered in by media hype.  But they haven’t gone full retard either.  They don’t think indiscriminate killing of sweet little black boys is okay.  Everyone is getting played by the media.  Let’s point our fingers at them, not each other.


Here’s the last thing that needs to be considered:

People think that Zimmerman just walks out of that courtroom and shows up to work on Monday, having paid no price.  Friends, the man’s life is devastated.  Half of this country thinks that he is a murderer.  He’ll carry that stigma, and he’ll do it without the monetary luxury OJ has.  He has the burden of having a man’s death on his conscience.  Also, I would be surprised if his legal defense were less than $100,000.  A man had to spend a hundred grand to defend himself.  He didn’t walk away unscathed.

You Have the Right to Remain … Guilty?

The Supreme Court this week released another opinion holding that the plain language of the Bill of Rights means something other than what it says.

In Salinas v. Texas, and a (SURPRISE!) 5-4 decision the Court held that a prosecutor implying a suspect’s silence is evidence of guilt isn’t somehow violative of the 5th Amendment.  The 5th Amendment states in full:

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

What’s the story?  Man is named a suspect in a murder and is asked to come in to the station to answer some questions.  He comes in willingly, answers some questions, then, when asked a particularly damning question, looks down at the floor and doesn’t answer.  The prosecutor uses this as evidence of guilt to the jury.

What’d they decide?  The majority opinion holds that a person must actively invoke their right to silence.  Once again, the court comes to this bad decision because instead of treating the Constitution as the supreme law of the land, they are using their previous decisions to assault plain language by the telephone game known as the common law.  According to Justice Alito, “It has long been settled that the privilege ‘generally is not self-executing’ and that a witness who desires its protection ‘must claim it'”.  citing Minnesota v. Murphy, 465 US 420.  Being silent by itself is not enough.  This is extremely important to you, and I will explain why shortly.

The justification for this is that the police don’t know why you’re remaining silent if you don’t actively invoke your right.  “To be sure, someone might decline to answer a police officer’s question in reliance on his constitutional privilege.  But he also might do so because he is trying to think of a good lie, because he is embarrassed, or because he is protecting someone else.”

…okay, I’m done laughing now.

According to Alito, “the Fifth Amendment guarantees that no one may be ‘compelled in and criminal case to be a witness against himself’; it does not establish an unqualfied ‘right to remain silent.’  A witness’ constitutional right to refuse to answer questions depends on his reasons for doing so, and courts need to know those reasons to evaluate the merits of a 5th Amendment claim.”

Alito is right — kinda.  You don’t have a 5th amendment right to protect your friend.  But the burden of proof to show why you’re remaining silent is on the state because for all practical purposes you cannot explain why you’re staying silent if you’re doing so to protect yourself without incriminating yourself.  However, somehow in Justice Alito’s mind, if  you actively invoke your 5th amendment right you aren’t doing it for any other purpose (like those quoted above) than to protect yourself.

Alito shows that he lives in the ivory tower by ignoring Petitioner’s concerns.  “Petitioner worries that officers could unduly pressure suspects into talking by telling them that their silence could be used in a future prosecution.  But as petitioner himself concedes, police officers ‘have done nothing wrong’ when they ‘accurately stat[e] the law.'”  Again, that’s true.  But let us be practical.  An officer can now tell someone, “Hey, if you don’t answer our questions, we can use that against you in court.”  But do you think that’s going to be followed by, “But if you tell us you’re invoking your 5th Amendment right to remain silent, we can’t.”?  NO!  Of course the cops aren’t going to tell you that.

Yet this is okay according to Scalia’s concurrence.  “A defendant is not ‘compelled…to be a witness against himself’ simply because a jury has been told that it may draw an adverse inference from his silence.”  Apparently you are only compelled if the officer puts a gun to your head and tells you to answer the question.  But it is hardly new for the Supreme Court to misunderstand what compulsion means.  A Court Justice hasn’t been subject to a harsh interrogation since their confirmation hearing.  But even in those hearings it’s all about saying you don’t have an opinion.

Why does this matter to me?

Okay, all is not lost.  This was not what’s called a custodial interrogation.  The defendant willingly went to the courthouse.  So according to the Court the defendant was “free to leave at any time”.  Again, I wonder how free the defendant felt to leave while sitting in a police station surrounded by armed men who were suspicious that he murdered someone.  Until you are subject to a custodial interrogation (when a reasonable person doesn’t feel free to leave) you are not read your Miranda rights.  That’s the first time you’re going to be advised of your right to remain silent.  The Court vastly overestimates when they decide a reasonable person would feel free to leave.

I always tell people to listen to my little girl.  She says, “No talk to cops”.  Well, that didn’t work for the Defendant, did it?  However, Salinas’s big mistake was going to the station in the first place.  DON’T TALK TO COPS.  Do not go to the station willingly.  Make them come to you.  And know your rights.  Invoke your right.  This decision is going to injure those that don’t know they have to invoke their right, assuming (rightly if you believe in the Constitution) that you don’t need to invoke them.  Don’t be one of them.

According to Justice Breyer’s dissent, “This Court has recognized repeatedly that many, indeed most, Americans are aware that they have a constitutional right not to incriminate themselves by answering questions posed by the police during an interrogation conducted in order to figure out the perpetrator of a crime.”  In other words, EVERYONE knows what the 5th Amendment means.  Why?  Because it’s obvious.  The majority changing the meaning of the 5th Amendment means that those of us that KNOW what it means are going to be injured by our silence.  Invoke your right friends.

Better yet, grab my card!  Here’s a picture of the back side of it.  Send me an email and I’ll send you one.

Tear off my number and hand the card to the officer.  DON'T TALK TO COPS

Tear off my number and hand the card to the officer. DON’T TALK TO COPS


All Your DNA Are Belong to Us

All Your DNA Are Belong to Us

All apologies for the late update.  Putting the new firm together is taking priority.

In another 5-4 decision certain to inspire confidence in the citizenry that words truly have meaning and the law isn’t simply made up by by a handful of people in robes, the United States Supreme Court once again used the telephone game called the common law to rewrite the Bill of Rights.

In Maryland v. King(opinion here: maryland v king) Justice Kennedy joined with conservative justices to allow DNA collection via cheek swab as part of the routine booking process.

The story:  Woman is raped in 2003, DNA is gathered at the site, but it turns into a cold case.  Man is arrested 6 years later in a different state on an assault charge. As part of the booking procedure they swab the inside of his cheek for DNA and send it off to the labs.  A few months pass and his DNA is run through a database, matching the DNA at the rape site.  Man is convicted of rape.


Why the Supreme Court says it doesn’t violate the Fourth Amendment:  DNA is like, super cool and works really well.  I mean God, how come you like criminals so much?  It’s just used to identify criminals.  It’s just like fingerprints.

Why Scalia correctly dissents (again): Clearly it isn’t simply used to ID criminals because they were running the Defendant through the criminal process for months while the DNA was being processed.  It’s a safe bet that they weren’t running the Defendant through the criminal system as a John Doe.  They knew exactly who he was each step of the way.  DNA does work well and, “Solving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches. The Fourth Amendment must prevail. ”

Scalia again provides a fantastic, witty, and well thought out dissent.  This DNA was not gathered and used after a conviction.  It was gathered after an arrest.  It was never used to ID the suspect, but rather as a search of his body for the express purpose of gathering evidence for crimes he was not under investigation for.  The fact that Kennedy bases the reasonableness of the search in ANY part on the fact that a cheek swab is not painful and less invasive than a blood draw is sophistry.  Comparisons to fingerprinting and blood draws is weak.  It shows the problem with common law.  Sometimes situations and technology are new, and to force the square peg into a round hole is to do a grave injustice.  Now, when the next piece of tech comes along, instead of saying, “It’s just like fingerprinting”, they’re going to say, “It’s just like a DNA cheek swab”.

Look, if they want to get a DNA database after you’ve been convicted of a crime, we can talk.  It’d be far more reasonable, although I think the key argument is simply that you shouldn’t be allowed to have your person, houses, papers, or effects invaded without individualized suspicion of a specific crime, another point Scalia touched on.  The government also promises that your DNA is only to entered into a national database for “serious offenses”.  Pray tell why should a person ever have his liberty offended by incarceration for any “non-serious offense”?

I hate to spend this post practically copying everything Scalia has said (No I don’t), but he sums it up perfectly:

“When there comes before us the taking of DNA from an arrestee for a traffic violation, the Court will predictably (and quite rightly) say, ‘We can find no significant difference between this case and King.’ Make no mistake about it: As an entirely predictable consequence of today’s decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason.”

Friends, the era of of government honoring your privacy is OVER.  The sooner you accept that fact, the sooner we can learn how to fight to win it back.

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