Category: Constitutional Law

Academia, Constitutional Law, Courts, Criminal law, Justice, Lawyering, Science, Society, Uncategorized

“We have ways of making you talk…..” Confessions and false confessions.

Submitted by Charlton Stanley (aka Otteray Scribe), Guest Blogger

“It is better that ten guilty persons escape than that one innocent suffer.”
– Sir William Blackstone KC SL, Commentaries on the Laws of England (1765)

Sir William Blackstone
Sir William Blackstone

One of the oldest cliché movie scenes of the past half century is the Gestapo agent, wearing a monocle, slapping a riding crop against his gloved hand, saying with a leer, “Ve haf vays of making you talk…..” Unfortunately, that caricature figure has come to life in in recent years, taking the form of rogue psychologists, unscrupulous investigators, and even the Vice President of the United States.

My motivation to write this is because of a phone call a few weeks ago. An old case I worked on back in the 1980s resurfaced with that phone call out of the blue. Of all the cases I ever worked on, the one I got the call about has been the most bothersome. It involved a murder, a coerced confession, a judge with a troubled psychological burden of his own, and a jury that would not believe confessions could be coerced. Plus, a district attorney with a reputation of wanting to win at any cost. Since this case has resurfaced and the new investigation is still under way, I can’t say too much about it now. As details become public, I will be writing more.

Let me start off by saying that most confessions may be legitimate, but since we have no way of knowing how many are false, no solid statistics are possible. The simple fact that so far, over three hundred people have been released from prison due to wrongful convictions is enough to give one pause. It is reasonable, based on the number exonerated so far, to assume there are a lot of them. We just don’t know which ones. Not all those overturned convictions were due to false confessions, but about a fourth of them were. If a defendant does make a false confession, and there is solid DNA evidence showing the defendant to be innocent, juries convict over 80% of the time, despite the physical evidence. One thing I find curious is the fact some prosecutors continue to prosecute cases even after the physical evidence proves they have the wrong person.

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Congress, Constitutional Law, Courts, Justice, Lawyering, Politics, Society

Pension Busting

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Respectfully submitted by Lawrence E. Rafferty-(Guest Blogger)

The main stream media was full of stories in the last week concerning a judge’s decision in Michigan to allow the Bankruptcy of Detroit to go forward.  What the media seems to have omitted from the discussion, is just how pensions in Detroit and across the country have come under attack.

“Now that a federal judge, Steven Rhodes, has ruled that the bankruptcy can proceed, a central issue will be whether the city can jettison up to $3.5 billion in accrued pension benefits owed city workers (which Orr claims are unfunded). With accrued state and municipal pension benefits protected by the Michigan constitution, Judge Rhodes’ ruling sets a chilling precedent for future municipal bankruptcies.” Truth-out  Continue reading “Pension Busting” →

Congress, Constitutional Law, Courts, Environment, Free Speech, International, Justice, Media, Military, Politics, Religion, Society, Supreme Court, Uncategorized

Our “Virtuous” Rich

Submitted By: Mike Spindell, Guest Blogger

104248208I believe that it is impossible to deal with any problem until one understands the underlying nature of that problem. The analogy of a Physician treating the symptoms of a patient, but ignoring the cause of those symptoms, comes to mind. We have the medicine to deal with the specific manifestation of an illness like a headache and a fever, but in ameliorating the discomfort of the symptoms, we may miss the underlying pathology. This happened to me last March when shortly after being prescribed a change in the anti-rejection medicines that keep me alive after my heart transplant, I began to get so sick that I needed hospitalization in intensive care. I won’t bore you with the grimy details of this sudden downturn in health, but I must note that my most important bodily functions began to shut down. What is curious about this incident is that my wife, who is internet savvy, immediately began to suggest to my Doctors that I was having a bad reaction to the medicinal change. At first they ignored her as they had Department Heads in Cardiology, Immunology, Infectious Diseases, Neurology, Proctology, Urology and even Dermatology come in to examine me and pore over my medical charts. Finally, in response to my wife’s unfailing advocacy, they returned me to my prior anti-rejection medication. To my Physician’s surprise and possible chagrin the symptoms almost immediately began to abate and within in days I was home from the hospital and on the mend. Continue reading “Our “Virtuous” Rich” →

Constitutional Law, Courts, Criminal law, Free Speech, Lawyering, Media, Politics, Religion, Society, Supreme Court

Federal Court Strikes Down Criminalization of Polygamy In Utah

240px-sister_wives_tv_series_logoIt is with a great pleasure this evening to announce that decision of United States District Court judge Clarke Waddoups striking down key portions of the Utah polygamy law as unconstitutional. The Brown family and counsel have spent years in both the criminal phase of this case and then our challenge to the law itself in federal court. Despite the public statements of professors and experts that we could not prevail in this case, the court has shown that it is the rule of law that governs in this country. As I have previously written, plural families present the same privacy and due process concerns faced by gay and lesbian community over criminalization. With this decision, families like the Browns can now be both plural and legal in the state of Utah.  The Court struck down the provision as violating both the free exercise clause of the first amendment as well as the due process clause.   The court specifically struck down language criminalizing cohabitation — the provision that is used to prosecute polygamists.  The opinion is over 90 pages and constitutes a major constitutional ruling in protection of individual rights.

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Constitutional Law, Courts, Criminal law, Lawyering, Politics, Society

Chief Judge Writes Scathing Dissent Warning of “Epidemic Of Brady Violations” By The Justice Department

kozinskiDeptofJusticeI have long been a fan of the opinions of Chief Judge Alex Kozinski. While we disagree on many cases, Kozinksi often defies predictions and more ideological colleagues in ruling against the government. Chief judge of the San Francisco-based 9th U.S. Circuit Court of Appeals and considered a leading libertarian, Kozinski often rules in favor of individual rights — making him a refreshing voice on the federal courts which tend not only to be highly conservative on police powers but also populated by a disproportionate number of former prosecutors. Kozinski’s dissenting opinion this week in the case of Kenneth Olsen continues that legacy and further puts the bias of the federal court in favor of prosecutors into sharp relief. Kozinski opposed the denial of an en banc rehearing with four of this colleagues in the case of Kenneth Olsen, whose trial was marked by prosecutorial abuse. Kozinski began his decision with the chilling but true observation that “There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.” They didn’t. The court voted overwhelmingly to deny a rehearing in United States v. Olsen,
704 F.3d 1172, 1177 (9th Cir. 2013), a case where the Justice Department failed to fully disclose exculpatory evidence. For those who have been objecting to the expansion and abuse of police powers, it is important to remember that these abuses only continue because federal judges turn a blind eye to them.

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Constitutional Law, Courts, Free Speech, Politics, Society

By The People For The Dollars: Washington Initiative Process Dominated By Out Of State Corporations.

Submitted by Darren Smith, Guest Blogger

Washington State SealWashington State Constitution Article II Section 1(a) “Initiative: The first power reserved to the people is the initiative.”

The initiative process in Washington State is designed to allow individual citizens to participate in the law making process and collectively to work together to bring this cause to fruition. But is this century old tradition, rather uncommon in the various governments of the world, suffering from the effects of corporate interest and losing its original purpose?
Continue reading “By The People For The Dollars: Washington Initiative Process Dominated By Out Of State Corporations.” →

Congress, Constitutional Law, Justice, Media, Politics, Society, Uncategorized

Revamp the Federal Reserve

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Respectfully submitted by Lawrence E. Rafferty (rafflaw)-Guest Blogger

This past week the main stream media made a big deal about the unemployment rate declining to the five-year low of 7%.  While it was good news that over 200,000 jobs were added to the economy and that the unemployment rate decreased, the economy and main street are still lagging behind Wall Street.  The Federal Reserve has been attempting monetary easing strategies in an effort to stimulate the economy.  It may have worked for Wall Street, but the rest of us are still catching up.

“The Federal Reserve is the only central bank with a dual mandate. It is charged not only with maintaining low, stable inflation but with promoting maximum sustainable employment. Yet unemployment remains stubbornly high, despite four years of radical tinkering with interest rates and quantitative easing (creating money on the Fed’s books). After pushing interest rates as low as they can go, the Fed has admitted that it has run out of tools.” Ellen Brown  Continue reading “Revamp the Federal Reserve” →

Congress, Constitutional Law, Courts, Criminal law, Free Speech, Justice, Lawyering, Politics, Society, Supreme Court

Cheap Justice, Bad Law = Broken System

Submitted By: Mike Spindell, Guest Blogger

USDistrictCourtSealMany blogs have been written here that deal with the phony “War on Drugs” and the negative effects it has on society, particularly those lacking resources, or being people of color. This piece is not about the “War on Drugs”, but this ridiculous “war” has actually driven the abuses of our criminal justice system that is my topic today. Because the “War on Drugs” provides context for this subject I’ve included links at the bottom that supply the context behind my opinions here. Human Rights Watch produced a report this week about how most defendants in Federal drug cases are forced to plead guilty under the threat of the imposition of a mandatory sentence. I read an article in Huffington Post referencing this study and it immediately brought to mind two aspects of law enforcement and prosecution today that raise my ire.

The first is the process of plea bargaining, which I believe makes a mockery of our Criminal Justice System. The second is the concept of Mandatory Minimum Sentencing (MMS) which in my opinion leads inevitably to miscarriages of what we would like to call justice. The idea of negotiation, bargaining if you will, is that each of the two sides has the ability to provide enough of value to be able to establish a mutually beneficial contract. Clearly though when it comes to a Prosecutor bargaining with a defendant there is, except in the case of the wealthy/powerful, an unequal negotiation. The Prosecution has the authority and resources of the State backing it up. Most defendants and indeed most people in prisons, have little resources. In the public’s (thus jury’s) mind, most defendants are really guilty until proven innocent, despite the “presumption of innocence” that is supposedly a hallmark of our legal system.  Adding immeasurably to the Prosecution’s resources are “Mandatory Minimum” sentences (MMS). They were instituted by legislators who wanted to appear “tough on crime” and so represent drastic solutions to punishment needs, in order to appear as “tough” as possible. With the trump card of MMS prosecutors are in a position to threaten a defendant to “cop a plea” to avoid a more draconian prison sentence. The Human Rights Watch study shows how these two procedures have become a feature of American Criminal Justice that in my opinion makes a mockery of it. Continue reading “Cheap Justice, Bad Law = Broken System” →

Animals, Constitutional Law, Criminal law

Missouri Lawyer Accuses Police Of Threatening To Kill His Family Pets And Kick In Front Door If He Insisted On A Warrant

147px-Mo_-_Kansas_City_PoliceIf a recent story is to be believed, it appears that there are many things that you can demand to see in the “show me state” but a warrant is not one of them. A Kansas City man is accusing the police department of shocking conduct after he declined a demand that he allow police officers to search his house without a warrant. Eric Crinnian, a lawyer, said that an officer threatened that, if he insisted on his getting a warrant, he would come back in force, bust down his door, and shoot any dogs in the house. The response from a local criminal justice professor is also rather interesting.

Continue reading “Missouri Lawyer Accuses Police Of Threatening To Kill His Family Pets And Kick In Front Door If He Insisted On A Warrant” →

Constitutional Law, Criminal law, Society

Prosecutors Oppose DNA Testing For Inmate . . . DNA Tests Then Link Different Man To Murder

g-cvr-131203-jason-ryan-peterson-609p.photoblog600Michigan is the latest state to have DNA clear a man imprisoned for years for a crime that he did not commit. What is most striking about the case of Jamie Peterson (right) is that lawyers had fight to re-test evidence that could prove his innocence.  Prosecutors opposed the simple re-testing of evidence in the case that was not analyzed previously (as have prosecutors in other states).  Finally, prosecutors relented and it was shown that it belonged to a man that police had cleared in first-degree murder in 1998. A second man was arrested this week but police insist that Peterson is not cleared. The case also shows the great cost to the rule of law that was presented by the Supreme Court ruling that there is no right to such testing in a post-conviction case. Chief Justice Roberts decision in the 5-4 case in District Attorney’s Office v. Osborne allows prosecutors and police to resist such simple testing to prove innocence in cases like Peterson’s. Indeed, the Court has produced an all-too-common double standard for citizens. It ruled in 2013 that police could routinely take DNA samples from suspects to use against them but the same individuals have no right to access to DNA testing to prove their innocence.

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Bizarre, Congress, Constitutional Law, Media, Politics

Hearing Or Elephant? Washington Post Portrays Republicans At Presidential Abuse Hearing As Impeachment Obsessed

220px-Republicanlogo.svg220px-Washington_Post_buildingThe Washington Post has a controversial take on yesterday’s hearing in its coverage by Dana Milbank. The hearing raised the serious question of a pattern of allegedly unconstitutional actions by President Obama in either barring enforcement of federal law or directly violating those laws. However, the Washington Post only reported on the fact that impeachment was raised in the hearing in the discussion of the constitutional means left to Congress to address presidential abuse. Republicans object that the Post piece misses 99 percent of the hearing detailing the rise of an imperial presidency under Obama and four hours of discussion of the dangerous shift of power in the tripartite system. Impeachment or presidential abuse. It seems that two hearings occurred simultaneously. Both sides appear to be claiming the other is blinded by bias. The Milbank and Republican accounts appear a modern version of the parable of the elephant and the six blind men.

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Academia, Congress, Constitutional Law, Courts, Politics, Society, Supreme Court, Testimony

House Judiciary Committee To Hear Testimony On President Obama’s Authority To Suspend Or Change Federal Laws

260px-capitol_building_full_viewThis morning I will testify in Congress before the House Judiciary Committee on “The President’s Constitutional Duty to Faithfully Execute the Laws.” The hearing will address areas where President Obama has ordered the delay or nonenforcement of federal laws. While I happen to agree with some of these policies, I have great reservations about this record and its implications for the separation of powers.

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Congress, Constitutional Law, Courts, Politics

Judicial Appointments and Bad Faith

 By Mike Appleton, Guest Blogger

“Despite suggestions by the President, various Senators, and numerous commentators that the Senate has a constitutional obligation to act on judicial nominations, the text of the Constitution contains no such obligation.“

-Adam J. White, “Toward The Framers’ Understanding of ‘Advice and Consent’: A Historical And Textual Inquiry,” 29 Harvard J. Law & Pub. Pol. 103, 147 (2005)

“… [T]he constitutional obligation to provide advice and consent in the judicial appointment process should be seen as a nondiscretionary duty constitutionally imposed upon the Senate and enforceable by the judiciary.” 

–Lee Renzin, “Advice, Consent, and Senate Inaction-Is Judicial Resolution Possible?”, 73 N.Y.U. L. Rev. 1739, 1751 (1998) 

The Constitution requires no more than a bare majority of the Senate to approve a judicial nominee.  How do we know this?  First, there are only five situations in which the Constitution mandates super-majority approval: conviction of an impeachable offense (Article I, Section 3); expulsion of a member of Congress (Article I, Section 5); overriding a presidential veto (Article I, Section 7); approval of a treaty (Article II, Section 2); and the convening of a constitutional convention (Article V).  Second, under a familiar rule of statutory construction known as “expressio unius est exclusio alterius,” the failure to include a super-majority vote requirement in the Appointments Clause means that no such requirement exists.

Nevertheless, the Senate has been able to transform its “advice and consent” function under the Appointments Clause into a sixth super-majority approval standard through its power under Article I, Section 5 to establish “the Rules of its Proceedings.”  And the consequences have been more strongly felt during the current administration than at any other time in our history, Continue reading “Judicial Appointments and Bad Faith” →

Congress, Constitutional Law, Courts, Criminal law, Free Speech, International, Justice, Lawyering, Military, Politics, Society, Testimony

Kangaroo Commissions and Torture

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Respectfully submitted by Lawrence E. Rafferty (rafflaw)-Guest Blogger

The five alleged 9/11 defendants currently being held at Guantanamo Bay where they have been detained since 2006, are currently preparing their defenses for trials that are scheduled for September 2014.  All five defendants have been subjected to what the United States government called enhanced interrogation techniques at CIA black sites even before they got to Gitmo. Continue reading “Kangaroo Commissions and Torture” →

Constitutional Law, Courts, Justice, Supreme Court

Parsonage Exemption Ruled Unconstitutional

-Submitted by David Drumm (Nal), Guest Blogger

USDistrictCourtSealThe “parsonage exemption” is found in 26 U.S. Code § 107 and states that a “minister of the gospel” does not have to include in his gross income, either the rental value of a home furnished to him or the rental allowance paid to him. Judge Barbara Crabb of the U.S. District Court for the Western District of Wisconsin has held that the “parsonage exemption” is unconstitutional. Crabb wrote in the decision that the tax exemption “provides a benefit to religious persons and no one else, even though doing so is not necessary to alleviate a special burden on religious exercise.”

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