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Friday, September 5. 2008
Bill of Rights (From public domain.) Who wants police to be permitted to pin down a drunk driving suspect to draw blood? What medical professional in his or her right mind would agree to draw the pinned-down suspect's blood? Then again, will some police just take the lobotomized route of skipping the phlebotomist entirely, and draw the blood themselves? Not if such judges as Pima County Superior Court Judge Richard S. Fields are presiding. Judge Fields recently wrote that blood draws "carried out in roadside situations with poor lighting and in less than sanitary conditions" present "an unreasonable risk of infection and injury." Of course, the prosecution says it plans to appeal, which is another reason I am happy that I have never prosecuted. (Thanks, Lawrence Taylor, for posting on all topics contained in this blog entry). Then again, will law enforcement agencies get their cops certified as phlebotomists? That is what the Utah Highway Patrol did with its troopers, to save the time and $50 per blood draw of calling in a medical technician. As blogger Lawrence Taylor aptly points out: "Ignoring the pain, injury and infection aspects for the moment, bear in mind that the blood must be taken from a vein, not an artery (which has a higher blood-alcohol concentration); the skin must be swabbed with an approved antiseptic (not isopropyl alcohol, which can raise the blood-alcohol concentration); the correct amount must be taken, with no contamination from the officer; it must be placed in a sterile and sealed vial; an approved preservative in the correct amount must be added and mixed in (to prevent fermentation, which increases BAC); an anti-coagulant (to prevent clotting, which increases BAC) must also be added, again in the correct amounts." If a drunk driving suspect is going to be coerced or forced into submitting to a blood test, the least the powers that be can do is to provide the suspect at least some comfort, confidence and dignity by providing an experienced medical technician for the blood-drawing, rather than to have it done by a handgun-toting cop who claims to be certified in the procedure. All of this Orwellian forced blood drawing comes to you thanks to the 5-4 decision in Schmerber v. California, 384 U.S. 757 (1966) (finding no Constitutional violation from a non-consensual blood draw), which, sadly, was penned by my otherwise hero Justice Brennan. Jon Katz
Thursday, September 4. 2008
Bill of Rights (From public domain.) When Sami Al-Arian was terminated from his university professorship over six years ago (I am referenced in the news release from the Foundation for Individual Rights in Education) following threats of violence and donor pullouts to the University of South Florida, that was small potatoes compared to the five years of incarceration that followed with a subsequent indictment alleging his central role in terrorism. What did the United States Justice Department have to show for its six-month criminal trial in 2005 that likely cost the prosecution millions of dollars? The jury refused to convict on most counts and hung on the remaining counts, followed by a plea bargain to lesser charges of conspiring to aid the Palestinian Islamic Jihad by helping get immigration relief for a relative allegedly linked to PIJ, and lying to a journalist concerning another person's PIJ links. Not satisfied to rest on the plea disposition in the Florida federal court, federal prosecutors kept Mr. Al-Arian jailed after his prison release date by indicting him for refusing to testify under immunity to a grand jury. However, the catch-22 of giving such testimony is that a perjury prosecution can be instituted by the same prosecutors who call the immunized witness before the grand jury, and such a prosecution can go forward even if no lies were told as long as the presiding judge for the perjury prosecution finds probable cause to believe perjury took place. One of Mr. Al-Arian's legal team members is indefatigable blogger Jonathan Turley, who views the ongoing hounding of Mr. Al-Arian by the federal prosecutors as vindictive. To date, Professor Turley has not posted on the latest development this week in Mr. Al-Arian's case, so I will. For the first time in five years, Mr. Al-Arian is being released from jail into home detention. This is no small feat, because too often courts permit immigration detention, which is the most recent jailing suffered by Mr. Al-Arian. In this instance, his lawyers have been arguing that the current contempt prosecution against Mr. Al-Arian violates his plea agreement in Florida court, whereby Mr. Al-Arian contends that he should be permitted to be deported without delay. Apparently, the federal judge in the pending contempt case in Alexandria, Virginia, federal court pressed the federal authorities to justify holding Mr. Al-Arian in immigration detention together with prosecuting him for contempt, rather than just deporting him. Home detention is no picnic, but is much more preferable than the five years Mr. Al-Arian spent jailed, never able to spend private time with his family. Moreover, this Washington Post report suggests that Mr. Al--Arian is being permitted some time on the streets, as well. Here are some relevant links to Mr. Al-Arian's case: The pending contempt indictment against Mr. Al-Arian for refusing to testify before the grand jury; the contempt prosecution court docket; Mr. Al-Arian's habeas corpus petition in Alexandria federal court; the fed's reply to the habeas petition; my 2006 O'Reilly Factor interview opposing a retrial of Mr. Al-Arian; and my previous blogposts on Mr. Al-Arian. Thanks to Mr. Al-Arian's current legal team of Jonathan Turley, William Olson, and Philip Meitl. Thanks, also, to his criminal trial team of Linda Moreno and William Moffitt, who spent an entire six months of their lives with Mr. Al-Arian in his Florida terrorism trial. Jon Katz
Wednesday, September 3. 2008
Both dominant political parties in the United States have too many candidates and officeholders who do not hesitate to promote censorship. Some deny it is censorship, but a stinkbomb remains a stinkbomb even if Madison Avenue calls it a biscuit. Frank Zappa did an excellent job taking on Tipper Gore and her bipartisan group's push to force ratings on music -- with the silent if not vocal complicity of Al -- and GOP veep candidate Sarah Palin (any relation to Michael Palin from Monty Python?) veered towards library book banning when a smalltown mayor. As Time reports: "[Palin's mayoral opponent] Stein says that as mayor, Palin continued to inject religious beliefs into her policy at times. 'She asked the library how she could go about banning books,' he says, because some voters thought they had inappropriate language in them. 'The librarian was aghast.' That woman, Mary Ellen Baker, couldn't be reached for comment, but news reports from the time show that Palin had threatened to fire Baker for not giving 'full support' to the mayor." Of course, both sets of presidential and veep candidates carry on the shameful history of remaining silent while convention protestors' get pushed far away from the earshot and eyesight of conventiongoers and whlle police abuse demonstrators and suspected demonstrators left and right, as I have blogged about during the last few days. Jon Katz
Tuesday, September 2. 2008
Arrest of Democracy Now's Amy Goodman (Sept. 1, 2008). On September 1, police in Minneapolis arrested at least four journalists covering the protests during the Republican National Convention, including Amy Goodman of Democracy Now. Did the police have any good reason to arrest these journalists? Assuming for arguments' sake, probable cause to have allowed the arrests of the four journalists. police have discretion about whether to arrest (imperfectly akin to when a police officer gives an alleged speeder a warning notice rather than a ticket). Why was such restraint not exercised here? Of course, when journalists are silenced through arrest, that will be a convenient way for police in Minneapolis to look the other way about allegations of Constitutional violations of dissenters' rights to demonstrate. When reporters' cameras roll, police managers have trouble ignoring such coverage. Concerning Amy Goodman, her arrest likely feels like a cakewalk to her, compared to her close brush with death during the 1991 massacre of East Timorese by Indonesian soldiers. However, she and the two arrested members of Democracy Now's production staff need to be released so that they may return to reporting on what is happening in the streets of Minnesota, particularly since it appears that the so-called mainstream media are giving insufficient coverage to the RNC demonstrations. Jon Katz ADDENDUM I: Around 11:30 p.m. on September 1, Allison Kilkenny at HuffingtonPost reports that Amy Goodman's arrested producers Sharif Abdel Kouddous and Nicole Salazar have been released, and are eligible to be accused of crimes later on. Amy Goodman was released around 9:15 p.m.. Thanks to TalkLeft for having covered Amy Goodman's arrest. ADDENDUM II: Democracy Now's website posted a news release that includes the following: Amy Goodman was charged with obstruction, and felony riot charges are pending against producers Kouddous and Salazar. "All three were violently manhandled by law enforcement officers. Abdel Kouddous was slammed against a wall and the ground, leaving his arms scraped and bloodied. He sustained other injuries to his chest and back. Salazar’s violent arrest by baton-wielding officers, during which she was slammed to the ground while yelling, 'I’m Press! Press!,' resulted in her nose bleeding, as well as causing facial pain. Goodman’s arm was violently yanked by police as she was arrested." Of course, such police abuse is not limited to mistreatment of journalists during demonstrations.
Monday, September 1. 2008
Bill of Rights. (From the public domain.) Now Republican leaders and Minneapolis/St. Paul government and law enforcement have their chance to show if they will do any better than the Democrats and Denver authorities to protect demonstrators' rights, during the Republican National Convention. The Ramsey County sheriff seems to be trying to say that the recent raid(s) on alleged anarchists is isolated to the alleged anarchists. Hopefully that is true, but that sounds questionable and still does not satisfactorily answer why law enforcement apparently encroached on the alleged anarchists' First Amendment rights in the process. Here is some information and opinion about the raid(s) and its aftermath: - For Labor Day, a protest march was planned, with organizers expecting tens of thousands of participants. - TwinCities.com reports: "The American Civil Liberties Union and the National Lawyers Guild filed motions in Ramsey and Hennepin district courts Sunday, seeking the quick return of some of the 'First Amendment-protected literature' that had been seized, said Chuck Samuelson, ACLU of Minnesota executive director. There were fliers and banners taken in the searches, mostly from a St. Paul center used by a number of groups, that people had planned to hand out or display at today's march, Samuelson said. They aren't asking for the return of 'any of the materials that are related to the prosecution of the crimes for which people were arrested,' Samuelson said." - TwinCities.com further reports on the National Lawyers Guild's insistence that the seized items from the alleged anarchists are ordinary household items, and disturbing confirmation by law enforcement itself about blackouts on letting people record searches: "The National Lawyers Guild has said the confiscated materials were common household items and that the RNC Welcoming Committee's Web site has never stated or discussed plans for violence during the RNC, including against law enforcement. "Also Sunday, Communities United Against Police Brutality President Michelle Gross released video [see the video here] of the first seven and a half minutes of Friday's raid. She was at the center and was ordered to the ground with the other people inside. She said sheriff's deputies turned off her video camera. 'We document these incidents and then to have them pick up and then turn off the video camera ... is grotesque,' Gross said. 'More than that, though, this was only the latest in a salvo of several incidents involving police attempting to block people from telling the story of what they're doing.' Her organization and the National Lawyers Guild filed a motion Saturday in Hennepin County District Court asking a judge to stop police from seizing video equipment and cellular phones used to document officers' conduct and cited other examples of it happening. [Ramsey County Sheriff Bob] Fletcher said Sunday that deputies would have turned off Gross' camera because law enforcement has 'the right to control the scene of anybody who is inside a search warrant. If she's out in the public, it's a different thing; but she was inside the scene.'" - Thanks to the above-discussed Michelle Gross for very calmly but insistently giving the police a good reason to permit her to keep her video camera running. Here is the video portion that ran, before the police cut off further video recordings. - Minnesota National Lawyer Guild chapter president Bruce Nestor was present during the execution of two search warrants. He said: “Police seized political literature, cellphones, computers, cameras, personal diaries, and many common household items such as paint, rope, and roofing nails. These items are present in almost any home in south Minneapolis and are not evidence of a crime ... Seizing boxes of political literature shows the motive of these raids was political. Sheriff Fletcher has staged a publicity stunt, violated constitutional rights, and misrepresented what was seized during the raids." - Are the police raids limited to the alleged anarchists (by the way, anarchists do not shed their Constitutional rights by being anarchists, and the Constitution cannot outlaw people from being anarchists)? If so, why did the police raid a home housing members of a group called I-Witness Video? The video here shows the Ramsey County sheriff followed by a member of I-Witness Video. - The apparently left/"progressive"-leaning Twin Cities Daily Planet further addresses conflicting accounts between law enforcement and activists about the police home searches. - Orin Kerr at Volokh weighs in on the matter, with a rather "law and order" bent, with many commenters giving a wide range of opinions. In any event, people can debate the real facts of the recent Minneapolis raids. This should not obscure the need to watch closely what the police are doing to demonstrators' rights, and for everyone to insist not only on preserving their Constitutional rights, but also to protect robust and extensive rights peacefully to demonstrate, because courts often give overly-crabbed interpretations of First Amendment free speech rights. Jon Katz
Monday, September 1. 2008
Labor Day parade (from Library of Congress's website). NOTE: This blog entry is duplicated and updated from my Labor Day 2007 blog entry. On Labor Day, sales (handled by labor), vacations (serviced by labor), and the end of summer for too many people eclipse deep thinking and feelings about labor. Every day should be a day to care about working people, to consider them in all our actions, and to take them into account in our purchasing decisions. Millions upon millions of workers worldwide labor and suffer under unspeakably miserable conditions and pay, including countless factory workers in China, whose communist revolutionaries came to power proclaiming justice for the working masses. Imagine, then, how bad the working conditions are for millions of people in countries whose governments and employers barely pay even lipservice to justice for workers. As always, when we think globally and start by acting locally, miserable treatment of workers often starts with the custodial employees emptying our wastebaskets and cleaning our toilets, the dishwashers and plenty of other kitchen workers in the restaurants we frequent, the seasonal farmworkers picking our fruits and vegetables, and the workers who produce the countless cheap products sold at Wal-Mart and countless other discounters (who often are not giving their own workers good pay, working conditions and careers). Those of us who are employers, managers and bosses owe our employees harmonious and just working conditions, fair pay and benefits, and full respect and dignity. A supervisory manager at a previous legal employer told me that he generally followed the misguided lesson from a more experienced teacher of not smiling to his students (when he was a teacher) nor now his new employees until Thanksgiving. Why? So that the employees do not get lulled into a false sense of security and substandard work? Every worker deserves a thanks for the good work s/he does, every day. Every kindness deserves a thank you every time. For those workers doing work that we do not believe in -- whether it be fighting in Iraq, arresting people for marijuana possession, torturing alleged enemy combatants, or anything else one disagrees with -- it remains essential to understand and see each such person as a human being, not to mistreat such people merely because they are mistreating others, but still to be firm in calling for a change of the system that leads them to do such work, and sometimes to call for them to turn away from such work. We have many options to better the lot of workers, starting with our own wallets. An unfortunate irony of voting with our wallets can be to leave jobless the very workers we wish to help. However, if we are willing to send our money and business where workers and justice are better served -- including a willingness to pay more money as a result -- hopefully the same workers will find jobs with the more just employers. For those in jobs involving mistreating other workers or non-workers, sometimes the only option is to leave such jobs if efforts fail to stop mistreating them. As one particular judge -- not one I looked to for much justice -- once perceptively observed from the bench, most people, including cops, are just looking to get through the day. This situation raises multiple issues, including how to approach persuading people. However, if most people just want to get through the day, how much effort are they investing in justice rather than in just surviving for themselves, their families, and their friends? On the topic of judges -- who also are workers, although often wielding tremendous white collar power backed up by the power of the state -- a colleague who has known many local judges since childhood and through the old boy/girl network recently told me that half the judges he knows in a particular county do the work out of a sense of public service, with the other half dreading the grind of the daily docket. No matter how some judges may not seem to give much of a damn about justice, or not seem to define justice very justly, they remain humans including those toiling much longer than a forty hour workweek. While still on the topic of judges, it is important to remember the work of their supporting crew, including the courtroom clerks, office staff, clerks' office staff, people cleaning the courts' hallways and bathrooms, and the list goes on. In his book Working, writer Studs Terkel has written of the misery so many face working eight hours daily (if they are fortunate enough not to be working longer days than that). Thus, we are left with the importance of balancing each humans' need to work to live -- rather than to live to work -- with the importance that each human put in sufficient effort and ability to justify being hired, kept, and sufficiently paid for the work performed. Daily, we are helped by working people. How often do we show them sufficient thanks and appreciation? Thanks, again, to everyone who now works for me, who has ever worked for me, and who has helped my clients along the way. Thanks specifically to my current support staff comprised of David and Younghee, who provide caring and effective service to our clients and thereby help me stay focused on my work at hand by my being able to have full confidence in them. Jon Katz.
Sunday, August 31. 2008
People rarely die. Even after their heart stops beating, something about them usually keeps influencing the living and future generations in some small or big way, whether or not that influence is a good one. Someone like Stephanie Tubbs Jones did not have the capacity to die, but she did leave the planet on August 19, of a ruptured brain aneurysm that happened the day before. Joe Biden suffered the same injury two decades ago, but recovered. In late July 2005 on a plane returning to Maryland from depositions of federal employees in Cleveland, I met Stephanie Tubbs Jones sitting next to me. Before I knew she was a member of Congress -- I still carry strong presumptions against politicians, and, to boot, she previously prosecuted and judged -- I was impressed by how genuinely (as it appeared to me) and effectively she engaged so many of the passengers boarding the plane. They were her constituents. I do not know what pet political issue I raised with her -- possibly opposition to the criminal sentencing guidelines and mandatory minimum sentences, the general overall unfairness of the criminal justice system, marijuana legalization, or drug decriminalization -- but she was happy to have an engaging and meaningful conversation on the topic that I chose. Stephanie was genuinely upbeat about life and people. She told me that when she would conduct wedding ceremonies, she would recite the Indian wedding prayer. This prayer means so much to me that I spoke it to my wife at our wedding. For that alone, I very much appreciate Stephanie. Stephanie was only thirteen years older than I when she passed. I send my condolences and best karma to her survivors, including her son Mervyn Jones, II. Jon Katz.
Friday, August 29. 2008
Bill of Rights. (From the public domain.) Earlier this month, the Fourth Circuit affirmed summary judgment for the defendants in a libel case against a radio announcer (and his company) who had brusquely uncomplimentary words about the company's actions in Iraq while on contract at Abu Ghraib for such actions as conducting interrogations on behalf of the United States government. Caci Premier Tech., Inc. v. Rhodes, 2008 U.S. App. LEXIS 16576 (4th Cir., Aug. 5, 2008). In affirming summary judgment, the Fourth Circuit said: "To survive summary judgment, CACI must have forecast clear and convincing evidence that Rhodes made the statement with a high degree of subjective awareness of its probable falsity. In light of the evidence suggesting CACI's involvement in other abuses at Abu Ghraib and the credible sources identifying a contractor as the perpetrator of the child rape, the record does not support a finding, by clear and convincing evidence, that Rhodes levied the accusation recklessly. It is the absence of sufficient evidence of Rhodes's state of mind, and not any testament to the actual veracity or justifiability of her statement, that makes summary judgment appropriate here." Jon Katz.
Thursday, August 28. 2008
Bill of Rights. (From the public domain.) Many of my clients complain that the police never read them their rights. I wish the police always had that obligation when questioning a person, but that is not the situation. Generally, the police must advise a suspect of his or her Miranda rights if the suspect is in custody; if not, the failure to so advise is grounds for suppressing the defendant's statements to the police. Following are a few key court opinions that address when the police do and do not need to advise suspects of their Miranda rights, and how those rights need to be asserted - Once Miranda rights are invoked, they remain invoked until the in-custody suspect initiates communication. Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880 (1981). This is even the situation when the suspect is a convict who demands an attorney's presence during questioning, the case goes cold, and police return to question the suspect in the same prison system from which s/he has never been released. Shatzer v. Maryland, __ Md. _ (Aug. 26, 2008). - The trial judge in the Lee Boyd Malvo sniper prosecution initiated in Fairfax County, Virginia, ruled that the Sixth Amendment right to counsel is offense-specific, and cannot be invoked by one's attorney for future criminal charges that have not yet been filed. For that reason alone, said Virginia trial judge ruled that Mr. Malvo's Miranda rights in Virginia state court could not be asserted by his Maryland federal court-appointed lawyers. As the newspapers confirmed, Malvo wagged his tongue so much that he guaranteed himself the conviction and life without parole sentence that he received. Commonwealth of Virginia v. Malvo, 2003 Va. Cir. LEXIS 188, 63 Va. Cir. 22 (2003). - Miranda rights need not be automatically given to those present in a house being searched pursuant to a warrant. The Ninth Circuit recently said that "several factors are relevant to whether the circumstances of [the defendant's] interrogation effected a police dominated atmosphere: (1) the number of law enforcement personnel and whether they were armed; (2) whether the suspect was at any point restrained, either by physical force or by threats; (3) whether the suspect was isolated from others; and (4) whether the suspect was informed that he was free to leave or terminate the interview, and the context in which any such statements were made." U.S. v. Craighead, __ F.3d _ (9th Cir. Aug. 21, 2008). Craighead further observed: "If a reasonable person is interrogated inside his own home and is told he is 'free o leave,' where will he go? The library? The police station? He is already in the most constitutionally protected place on earth. An interrogation conducted within the suspect’s home is not per se custodial. See Beckwith v. United States, 425 U.S. 341, 342-43, 347 (1976). On the contrary, courts have generally been much less likely to find that an interrogation in the suspect’s home was custodial in nature. United States v. Ritchie, 35 F.3d 1477, 1485 (10th Cir. 1994); 2 Wayne R. LaFave, Criminal Procedure § 6.6(e) (3d ed. 2007)." . U.S. v. Craighead, __ F.3d _. Thanks to Scott Greenfield for discussing this Craighead case. - Unless a state's constitution is more protective than the federal Constitution, a police officer's questioning after a traffic violation stop generally does not, at the early stages, trigger a need to give Miranda warnings, because the stop and initial questioning, by themselves, do not put the suspect in custody that would require the Miranda warnings. Berkemer v. McCarty, 468 U.S. 420, 104 S. Ct. 3138 (1984); McAvoy v. State, 314 Md. 509, 551 A.2d 875 (1989). What to do with the many times courts do not require Miranda rights? For starters, how about if each of us puts slogans on our cars, t-shirts and front doors proclaiming "Say no to police questioning and police searches." No means no. Jon Katz
Wednesday, August 27. 2008
Bill of Rights. (From the public domain.) Today's blogpost follows up on yesterday's entry insisting on protecting demonstrators' rights at the Democratic and Republican presidential conventions. Here are some useful links for assessing and responding to the protest issue in Denver: - Added to my blogroll is this admittedly biased blog devoted to coverage of demonstrations and the police at the major party presidential conventions. Thanks to TalkLeft for bringing it to my attention. - Here is a gruesome place set up for police to process arrested demonstrators. The ACLU blog discusses the detention center |