UNDERDOG - Criminal / Drunk Driving Lawyer for Maryland, Virginia, DC

The limits on libel suits.

nospam@example.com (Jon Katz) — Fri, 29 Aug 2008 00:00:00 -0400

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.

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

Keep the spotlight on convention protestors' rights.

nospam@example.com (Jon Katz) — Wed, 27 Aug 2008 00:00:00 -0400

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 here.

- This YouTube page claims to show dozens of clips of recent demonstration activity and police response in Denver.

- Police public relations Groupthink gaffes often comes when they arrest reporters covering the action. Thanks to TalkLeft for covering this story.

- See Wolf Blitzer editorialize in favor of strong security while saying little to nothing about demonstrators' First Amendment and criminal defense rights, offset by his colleagues somewhat counterbalancing Blitzer, and including ominous footage from the 1968 Chicago Democratic Convention. Did 1968 failed Democratic presidential candidate Hubert Humphrey lift even a finger or a word to stop the police abuse inside and outside the Chicago convention site? If not, would he have reversed his narrow loss to Nixon had he stood up firmly, vocally, and effectively against the police abuse, thus perhaps obtaining more support from those who favored Robert Kennedy and Eugene McCarthy for president? Then again, the Vietnam War was then raging, which presented a huge challenge for him to obtain more than grudging support from strongly antiwar Democrats, while he served as Vice President under Johnson who kept the Big bloody Muddy going. Jon Katz

ADDENDUM: Scott Greenfield weighed in on the protestor matter on August 28.

Obama and McCain: Protect the convention demonstrators' rights.

nospam@example.com (Jon Katz) — Tue, 26 Aug 2008 08:00:00 -0400

An August 26, 2008, video of demonstrators in Denver, including the police blocking the exit of hundreds of people on a city block (near the last third of the video), including plenty of non-demonstrators who just happened to be present. Where was the mainstream media when this was happening?

In recent years, no matter who runs for the Tweedledum/Tweedledee Democratic/Republican tickets, the presidential nomination conventions, campaign stops, and inaugural coronations are surrounded by assaults on the First Amendment right to demonstrate. (If you disagree with the brothers Tweedledum/Tweedledee reference, are Obama and McCain more materially the same than they are different? Yes, I am voting for Obama to have a less oppressive and less militaristic government than McCain would bring and maintain, but Obama will heavily support business as usual with the military-industrial-government complex; the failed and oppressive drug war that runs roughshod on the Constitution; the legalized murder of the capital punishment system; the oppressiveness of the PATRIOT Act, and countless other government assaults on civil liberties and democracy. Does the two-party-dominated system sufficiently support a truly democratic and just society? I think not.)

Typically, and currently in Denver, convention demonstrators are kept blocks away from the convention site, nullifying the very purpose of their demonstrations. The same is sure to happen at the Republican convention. Also typically, presidential coronations, I mean inaugurations, lately have been examples of Soviet-style clampdowns on protestors and well-choreographed sanitized inaugural parades.

Certainly official clampdowns on and intimidation of demonstrators in the United States go far beyond presidential politics. As I have witnessed firsthand, police have a repeated habit of taking repeated close-up photos and videos of demonstrators at large demonstrations against presidential policies in Washington, D.C.; the police purport merely to be gathering evidence, but I have trouble believing that their actions are not also calculated to intimidate. During the April 16, 2000, weekend anti-World Bank/IMF protests, when I spent an entire Saturday defending arrested demonstrators at their bond hearings in the District of Columbia Superior Court, on my way to the nearby federal courthouse, I challenged a couple of police officers on an eerily mainly deserted street whether there was any purpose for their being dressed all in black with boots other than to intimidate; they did not answer. On the Friday late afternoon after the September 11, 2001, massacres, I saw military vehicles rolling down K Street a few blocks from my law school (granted, probably not intended to intimidate demonstrators, but a reminder of how much the United States is not safe from martial law government and martial law tactics). In the early Nineties on one of the many protest weekends -- most weekends in Washington are booked with one or many demonstrations, running from tame flag-waving events to strong opposition to one or many government policies and actions -- I saw a fatigue-wearing soldier on the street corner in front of the Treasury Department. During the September 2007 anti-Gulf War II demonstration in Lafayette Park, I saw cops not only at the ready to use force if ordered to do so, but also roaming in the crowd of peaceful demonstrators on the road that for years always has been closed to traffic in front of the presidential palace.

On July 14, 2008, I wrote about the public indifference -- but likely complicity if not downright participation -- ordinarily shown by presidential candidates and other high-profile politicians towards First Amendment violations against demonstrators protesting those politicians. Do McCain and Obama approve of such clampdowns? Will they voice their opinion on this matter, whatever are their opinions? Will they speak out for greater protection of demonstrators at their conventions, campaign stops, inauguration, and beyond? I am not holding my breath, including because their very discussion of the issue acknowledges the severe problem, and, in their silence, perhaps they hope the issue will stay off most voters' radars. Do not let them do it. Jon Katz.

ADDENDUM: Thanks to a fellow listserv member for posting the above-displayed video.