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Sami Al-Arian released to home detention.

nospam@example.com (Jon Katz) — Thu, 04 Sep 2008 00:00:00 -0400

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

Keep the light shining on convention protestors' rights.

nospam@example.com (Jon Katz) — Tue, 02 Sep 2008 00:00:00 -0400

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.

How will Republicans and police protect demonstrators' rights?

nospam@example.com (Jon Katz) — Mon, 01 Sep 2008 00:30:00 -0400

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

When Miranda does and does not come to the rescue.

nospam@example.com (Jon Katz) — Thu, 28 Aug 2008 00:00:00 -0400

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