Never, and I do mean NEVER, talk to the police.

Part of the persecution's theory in the Martha Stewart case is that she lied to them. It common for the police to ask someone a question about a crime. If they don't like the answer, they will often arrest the person for "obstructing justice." This happens even when the person tells the truth because the police only need probable cause to believe the person is lying. Think about it.

Imagine the police belive that A knows where B is. The police ask A where B is. A replies, "I have not seen B in over 3 months." Well, the police now have probable cause to arrest B. Sounds fun.

Michael ALVARADO was another victim of police lies. They told him: “Now all I’m simply doing is giving you the opportunity to tell the truth." What they really meant was, "Please tell us something that we can use to charge you with a crime." Since Michael was only 17, the Court must decide whether his age should be a factor in the ole "would a reasonable person feel free to leave?" test.

Give me a break. A 17-year old kid was taken into the back room at a police station where he was interrogated for over 2.5 hours. I am over 17 and I will say that under those circumstances, I would not have felt free to leave. Maybe the most important right we have is the right to remain silent.

"Unable to Duck the Issue"

An article on demands that Scalia recuse himself is here.

I think this controversy is silly. If Scalia and Cheney wanted to predetermine the result of this case, there are plenty of D.C. backrooms wherein they could have made this agreement. Besides, Scalia is a supporter of a strong executive. I doubt he would force the Vice President to make public the notes from the energy task force. For crying out loud, we are not talking about Watergate. Politicians meet with their cronies all the time. The Right has big business. The Left has Trial Lawyers, Inc. At least these interest groups care enough about their welfare that they lobby. So many Americans sit at home, doing nothing. Remember what Benjamin Franklin said, "This is a republic, if you can keep it."

I'd hire him, too.

This is the most impressive resume I have ever seen.

Howard Dean, the un-democratic Democrat.

On Page 50 of the Feb. 5, 2004, Rolling Stone, the following exchange occurs:

Question: "But what about the fact that voters in nine states have said they want medical marijuana made legal?"

Howard Dean's answer: "I don't like legalizing medicinal marijuana by referenda."

In other words, we the people should let Howard decide what is best for us.

I echo his sentiments: I don't like legalizing Howard Dean by referenda, either.

Dangerous Case, Thornton v. United States (No. 03-5165).

An important property rights case, framed as a Fourth Amendment case, is Thornton v. United States (No. 03-5165). The government's brief can be found here.

The issue in Thornton is whether the police may search and seize your car, even when you are not in your car at the time they stop to talk to you.

In Thornton, Mr. Thornton pulled into a shopping center parking lot. Unknown to him, a cop was on his tail. Thornton did not give any indication that he knew a cop was behind him. The cop had not turned on his sirens or otherwise indicated that he was behind Mr. Thornton.

Mr. Thornton stepped out of his car; closed his car door; and started to walk towards the store. The police officer jumped from his car and ran towards Thornton to ask him some questions. Naturally, Mr. Thornton was nervous. Most people are nervous when questioned by the police, especially when the police officer is trying to get your attention. Nervousness amounts to reasonable suspicion in all cases; and probable cause for most.

The cop conducted a pat-down search. He found a bulge in Thornton's pocket. The bag contained weed.

The police officer then went to Mr. Thornton's property, that was parked in a private parking lot, opened the car door, and searched the car.

If the Supeme Court decides this case the way I think it will, then the police will be able to search your car anytime they stop you. The police will be able to seize your car, even if you are stopped while outside your car. I think it is safe to say that none of your property is "private" once you step outside of your house. The police are encroaching closer and closer to your house too.

Pretty soon, you will have no privacy. Maybe that is what you want.

Am I the only conservative who is torn?

President Bush has increased federal spending; wants to grant amnesty to illegal aliens; is unconcerned with civil liberties; and refers to dissenters as enemies of the state.

What do I have to lose by voting for a Democrat, John Edwards, for example? We will still have a huge federal budget; talks of amensty for illegal immigrants; a thought police (ala the PC-crowd). But at least I gain a president who cares somewhat about my civil liberties.

I can not find a reason to vote for Bush. By the way, I am hardly a whiney liberal: I voted for Pat Buchanan in the 2000 primaries.

I'd hire him.

Howard Bashman announces the start of his new law firm here.

Best of luck.

Speaking Schedule for Randy Barnett

Randy Barnett has posted his speaking schedule over at the VC.

If you get a chance, check him out.

Chicken Little?

Was Scalia right in Lawrence v. Texas?

The U.S. Attorney's Manual on outrageous government conduct.

Here is what the USA has to say about outrageous government conduct.

The U.S. Attorney's Manual on outrageous government conduct.

Here is what the USA has to say about outrageous government conduct.

What is outrageous government conduct?

Although the government may infiltrate existing criminal enterprises without running afoul of the Due Process Clause of the 5th Amendment, it may not create new crimes solely to catch a particular defendant. The government engages in outrageous conduct when it, among other things, creates a criminal enterprise solely for the purpose of ensnaring an otherwise law abiding citizen in the scheme or artifice.

Outrageous government conduct (OGC) under the “creation” test.

The concept of OGC was born in 1973. In United States v. Russell, the United States Supreme Court said, “We may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government for invoking judicial processes to obtain a conviction.” 411 U.S. 423, 431-32 (1973). Such conduct, to rise to the level of OGC, must violate “fundamental fairness, shocking to the universal sense of justice.” Id. at 432. Although OGC is a pliable concept, the Ninth Circuit recognizes two situations wherein OGC is present.

First, government conduct rises to the level of OGC when the government encourages criminal conduct by engaging in brutal physical or psychological coercion. United States v. Bogart, 783 F.2d 1428 (9th Cir. 1986), vacated on other grounds sub nom. United States v. Wingender, 790 F.2d 802 (9th Cir. 1986)(vacating only as to other defendant). Second, government conduct rises to the level of OGC when government agents “engineer and direct the criminal enterprise from start to finish” so that the “conduct constitutes, in effect, the generation by police of new crimes for the sake of pressing criminal charges against the defendant.” Bogart, 783 F.2d at 1436. See also, United States v. So, 755 F.2d 1350 (9th Cir. 1985).

In United States v. Twigg, 588 F.2d 373 (3rd Cir. 1978), the Third Circuit reversed Twigg’s conviction from charges stemming from illegal manufacture of methamphetamines because the police had created the meth lab, provided all the supplies to create the meth, and then themselves created the meth. It was constitutionally outrageous to prosecute Twigg when the government itself had created the drug scheme under which they sought to prosecute Twigg.

Outrageous government conduct under the Ninth Circuit’s 6-part test.

Another way a court may found OGC is by applying the 6-Part Green test.
The Ninth Circuit applies a 6-part test in determining whether government conduct rises to the level of outrageousness.

In Green v. United States, 454 F.2d 783, 787-787 (9th Cir. 1972), the Ninth Circuit found outrageous government conduct where the informant (1) contacted the defendant; (2) engaged in prolonged criminal activity with the defendant; (3) was substantially involved with the criminal enterprise; (4) applied pressure against the defendant; (5) established the criminal enterprise; and (6) acted as the only customer of the criminal enterprise. “None of the factors we pointed to as significant would necessarily require reversal of a conviction. In our view it is the combination that is important.” Id. at 787.

New Feature.

From time to time I will post memos on certain issues of law. I think that the internet is a wonderful time-saving tool. If only everyone would post their briefs and memos! Again, my posting a memo of law is NOT, in any way, an attempt to give legal advice. This web site does not, and will not, provide legal advice.

Moreover, I am posting these memos as much for my own selfishness. Although I recently purchased a cruzer mini (which is indispensible since I work from several different computers), I do not yet enjoy a virtual drive. And so, my posting these memos allows me to access my research from a remote location.

"20 Questions for Randy Barnett"

Randy Barnett, both scholar and advocate, answers 20 Questions at Crescat Sententia, here.

Sabri Respondent's Brief.

The Respondent's brief in Sabri v. United States is now available.

Dr. Gene Scott.

By far, the most interesting, entertaining, and insightful minister is Dr. Gene Scott.

Writ of Habeas Corpus.

I was once instructed to file a writ of habeas corpus for a client who had been convicted in federal court but not yet sentenced. I said that I could not do so. Em became grouchy and asked, "Why not?"

Two cases you can show your boss are Mitchell v. Esparza (No. 02-1369) and Yarborough v. Gentry (No. 02-1597). These cases provide great rules statements for use in a memo. A law student would be prudent to have these rule statements in mind before taking a Federal Courts exam.

The Feeney Amendment and Separation of Powers.

I have a new legal challenge to the Feeney Amendment. Please share your thoughts with me.

Does vesting significant sentencing decisions in the hands of the executive impermissibly abrogates the judicial power? Under the American constitutional system, there is to be a strict separation of powers between each co-equal branch of government. But in practice, "[w]hile people sometimes refer to the three branches of the federal government as a three-lawyer cake, it is more accurate to think of it as a marble cake." John E. Nowak & Ronald D. Rotunda, Constitutional Law §3.5 (6th ed. 2000). Thus, a prosecutor's decision on what charges, if any, to bring will ultimately impact the available options at sentencing. Bordenkircher v. Hayes, 434 U.S. 357 (1978) (finding no Due Process violation when a state prosecutor reindicts defendant on a more serious offense when the defendant did not plead guilty to the crime with which he was originally charged.) And the prosecution holds almost absolute discretion in this area.

However, the Feeney Amendment conditions the trial court's sentencing decision upon prosecutorial approval. For example, under §5K3.1 the judge may issue a four-level early disposition downward departure only "[u]pon motion of the Government" and when "authorized by the Attorney General of the United States and the United States Attorney for the district in which the court resides." Under §3E1.1(b)(1), the trial court may give the defendant an additional base level increase of one only "upon motion of the government [ ]." This conduct seems to confer upon the executive power beyond its proper prerogative and almost amounts to an "executive veto" of judicial sentencing decisions. And like the "legislative veto" Congress improperly reserved for itself in INS v. Chadha, 462 US 919 (1983), the executive's effort to dictate sentencing decisions should be struck down as unconstitutional.

Curfews & the First Amendment: Hodgkins v. Peterson, No. 01-4115, (7th Cir. 2004)

A clear and brilliant exposition on the application of the First Amendment to state and local curfew laws can be found here. This case should be included in all First Amendment casebooks. And its propositions should be arrows in the quivers of criminal defense lawyers.

In Hodgkins v. Peterson, the Seventh Circuit answers in the affirmative this question: Does a curfew law, so broad that it allows a police officer to arrest a minor who is returning from a political protest, violate the First Amendment even where it allows the minor to assert a First Amendment affirmative defense at trial? The reasoning for this outcome is as follows.

A person has standing to challenge a law when they have suffered, or reasonably will suffer, an actual or apparent injury. The plaintiff (in this case an individual plaintiff and plaintiff class) has standing because they are likely to be arrested if out past 11 p.m. on weekdays, or 2 a.m. on weekends. Hodgin had standing to challenge the law under the overbeadth doctrine because the law impinged upon a significant amount of protected speech. For a person to state a claim under the First Amendment, they must prove that their speech was actually chilled. The plaintiffs could show this because fear of criminal prosecution would have, or did, prevent them from going to late night protests; political rallies; or church events. The case was not moot, even though Hodgin was no longer liable under this statute at the time of the opinion because a class action takes on an existence of its own.

The State argued that the law was not defective because the aggrieved party could assert a First Amendment affirmative defense. In other words, the minor could say in opposition to a citation, "I was returning from a political rally."

This affirmative defense did not cure the defect in the statute, however, because under 4th Amendment jurisprudence, the arresting officer does not have a duty to investigate or to seek exculpatory evidence. The officer only needs probable cause to believe that someone is committing a crime.

Applied here: Cop arrests minor. Minor says, "But I was returning from a political rally." Cop says, "Tough shit. Tell it to a judge." This arrest, under this statute and under the U.S. Supreme Court's jurisprudence, would be proper. It is hardly fair to force the child (or his parents) to have to hire a criminal defense lawyer to avoid being punished for exercising a constitutional right. And so, the statute is unconstitutional.

The case also ponders, but does not answer: Do curfew laws violate the substantive due process rights of parents by impinging upon their right to allow their child to remain out past a certain hour?

Every criminal defense (and Section 1983) lawyer, should be familar with this case.

Illinois v. Lidster.

Last week I woke up an optimist. Then I read Illinois v. Lidster.

Were criminal law and civil rights not my passion, I would avoid reading the Court's criminal procedure cases. Reading these cases makes my blood pressure rises. I get angry. I become afraid. I ask myself, Is America is becoming a police state?

But before I read a Supreme Court decision, I - unlike the Rehnquist Court - read the constitutional amendment at issue. The Fourth Amendment reads: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated [ ]." Let's look at this amendment in the context of Lidster.

Illinois cops set up a roadblock on a Saturday night at 12-midnight. The sole reason for this roadblock was to determine if anyone had seen an accident the week before. Lidster had to stop in traffic as he approached this roadblock. Lidster then had to stop his vehicle to talk to a cop.

Being stopped in traffic because of state action is a seizure. We know this because, but-for the roadblock, Lidster would have been home sooner. In other words, the roadblock slowed what the rate of traffic would otherwise have been. Being forced to stop in front of a police officer against your will is also a seizure. Is it reasonable to be stopped in traffic simply because the cops want to fish for information? It sure isn't reasonable to me. Nonetheless, the Court upheld these types of seizures.

The Supreme Court said that this roadblock was reasonable because "information-seeking highway stops are less likely to provoke anxiety or to prove intrusive. The stops are likely brief. [ ] And citizens will often react positively when police simply ask for their help as “responsible citizen[s]” to “give whatever information they may have to aid in law enforcement.” (Slip opinion at 4).

Those are very good policy reasons in support of the stop. If I witnessed a hit-and-run, I would likely do everything in my power to determine the killer. But this has nothing to do with the 4th Amendment. We must presume that the Founders of this country had such policy discussions before they described the scope or our rights. But the Rehnquist Court believes that each case causes the 4th Amendment to come before it tablua rasa, in the new. Scalia, too, joined this oppinion, in contradiction to the principles articulated in his book.

What offends me most is the intellectual dishonesty. The Court says that police are free to solicit are help in apprehending criminals. This is true. However, I do not see how it thus follows that: "[I]t would seem anomalous were the law (1) ordinarily to allow
police freely to seek the voluntary cooperation of pedestri but (2) ordinarily to forbid police to seek similar voluntary cooperation from motorists." (Id. at 4-5). This, my friends, as you learned in your Jr. year of High School, is a fallacy. It is easy to reason our way around this Court-created fallacy. Namely, our answer would be, "The police may seek the help of pedestrians in solving crimes. But they may not violate the Constitution in doing so." The police could knock on the doors of local homes and businesses. The police could hand out flyers. There are several other ways to seek information that do not require a rights violation.

Since the Court has the finest legal minds working for them as law clerks, I can only draw the conclusion that Lidster's reasoning is based on a deliberate indifference or disregard for truth.

Another point that bothers me. A lot of people will say, "I would love to stop to help the police. These roadblocks don't bother me." My answer to you is that IT DOESN'T MATTER WHAT YOU DO WITH YOUR OWN RIGHTS. I, little old me, hold the right to be free from these unlawful seizures. I do not want to surrender these rights. You should not be able to force me to do so. You may, however, amend the Constitution. Until you do so, please, start taking rights seriously.

Final Meal Requests.

The Texas Department of Corrections used to post on its website the final meal requests of soon-to-be executed inmates. As Bashman noted in an article cited here, the TX DOC took down these details.

Fortunately for y'all, I downloaded these meal requests before they were taken down. Since these are public records, I figured I would post a few at at time. If you want to see more (or less) of these, e-mail me, as I have the original list in the same format as from the website.

Larry Hayes. Two bacon double cheeseburgers, French fries, onion rings, ketchup, cole slaw, two diet Cokes, one quart of milk, one pint of rocky road ice cream, one pint of fried okra, salad dressing, tomato, and onion

Allen Janecka. Chicken fried steak, gravy, French fries, ketchup, salad, blue cheese dressing, iced tea with lemon, two sodas, rolls, and butter

Cedric Ransom. None requested

Christopher Black, Sr. One steak (medium well), fried chicken (wings and thighs), French fries, mushroom gravy, mixed steamed vegetables, chocolate fudge cake, peach cobbler, sweet tea, bread, and chef salad with Italian dressing

Hilton Crawford. Twelve beef ribs, three enchiladas, chicken fried steak with cream gravy, crisp bacon sandwich, ketchup, a loaf of bread, cobbler, three Cokes, three root beer, French fries, and onion rings

Kia Johnson. Four fried chicken breasts, onion rings, fried shrimp, French fries, fried catfish, double-meat cheeseburger with grilled onions, strawberry fruit juice, and pecan pie

"Republicans Don't Care to Enforce the Law."

Please see this article here about the so-called "law and order" political party. I wonder how Republicans would react if a Democratic administration refused to enforce the federal drug laws?

Return.
I am back after 5 days on the road.