Constitution Day

Today September 17 is Constitution Day. On this date in 1787 the current Constitution was signed and sent for ratification by the states. Most people have little knowledge or understanding of the Constitution, mainly because most of the rights which people reference are not in the Constitution but rather are in the Amendments. Most people have heard or were required to learn the Preamble to the Constitution which reads:

We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

Contrary to much popular opinion, demagoguing politicians and pundits we do NOT have a democracy. The Founders by design insured that we did not have a democracy and the word does not appear anywhere in the Constitution. Indeed, the Founders feared the concept of a democracy because it was too chaotic and unstable as a form of government.

So what did the Constitution “ordain and establish”? Primarily, it established the three branches of government which has endured to the present.

The first branch of government is the Legislative. This branch was designed somewhat on the model of the English House of Commons and House of Lords. Hence, we get Representatives and the Senators. Originally, senators were not elected by popular vote, they were appointed by state governors and were a check on the popularly elected Representatives initiatives.

The second branch of government is the Executive. This branch was originally probably the weakest of the three. It was there to execute the will of the Legislative with the tempering of the Judicial. The concept of the “Imperial Presidency” which came of age in the early 20th Century was not envisioned by the founders. The idea of “Executive Orders” circumventing Congress to create a form of law is not contained in Art. II, Sec. 2 of the Constitution.

The third branch of government is the Judicial. The Judicial is probably the least understood branch of the three. First, the Constitution only establishes one court which is specifically named the Supreme Court. The other federal courts (district and appellate) are created by acts of Congress. The phrase, “I’ll take this to the Supreme Court” is often a vainglorious statement. The probability of having a case heard by the Supreme Court is extraordinarily small. First, the Constitution itself limits the jurisdiction of the Supreme Court to a select few issues which it must hear. Next the method of getting to the Supreme Court for most cases is a discretionary review request, legally nominated Petition for a Writ of Certiorari. At last review, less than 3% of such Petitions were granted. Those few which are granted usually fall into matters of weighty Constitutional importance or where two or more appellate (Circuit) courts are in conflict over a significant interpretation of law.

Article IV addresses the states and “Full faith and Credit” of the acts of one state being valid in the other states. This Article addresses the admission process for new states. Importantly the Article requires the state government mirror the form of government of the federal and states, “The United States shall guarantee to every state in this union a republican form of government…” This is important because it refutes the democracy form of government most often claimed as noted above.

Article V addresses the amendment process for the Constitution.
Article VI sets the pre-eminence of the Constitution and states in paragraph two: “This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”

Article VII sets the ratification at nine states for adoption.
Finally, it is worth noting who signed this document. Because he is often called the Father of the Constitution, I must list first the name of James Madison. Other signers included George Washington, Benjamin Franklin, Alexander Hamilton, James Wilson, Roger Sherman and J. Rutledge. Several of these gentlemen also signed the Declaration of Independence.

Our Constitution is unique in the annals of human history. It is the great experiment which is still going on. While some argue over standing or kneeling for the flag, that is a side show. For it is the principles embodied in this Constitution which are ultimately the more important reverence. My undergraduate program focused on Soviet Studies. The Soviet Constitution was far better in terms of its declarations than our own. But they were only words and the Red Banner with the Hammer and Sickle did not embody the principles that our Constitution memorialized. Flags come and go (the U.S. flag has changed many times over the last 240 some years) We as a people must insure the efficacy of the Constitutional principles which our flag represents for all people or it is no better than the Red Banner.

This is not my Constitution or your Constitution, but white, black, Asian, Hispanic, Hindu, Muslim, Catholic, Protestant, Jewish or Atheist, whether liberal, conservative or middle of the road, it is our Constitution. Read it, embrace its ideals and as I took an oath to do some 50 years ago as a citizen protect and defend it from all enemies foreign and domestic, you can also. We can all do that by simply knowing what it says and correcting those who misquote and abuse it for their own political ends.

Taking Stock After 9/11

Today is September 11 or as often nominated 9/11. There are many posts and notices to Never Forget on the web, on television and other media, this 17th Anniversary. While I think we should remember those actions that infamous day (to borrow from FDR), I think we should also take stock since that day.

The purpose of the 9/11 attacks has been debated. Admittedly, it was an act of terrorism; the question is why. Was it to force a change in United States policy in the Middle East? Was it to reduce support for or undermine the government of Israel? Or was there some other motive as has been suggested elsewhere?

Seventeen years later, those motives seem irrelevant to today’s culture. What remains relevant is the response which is ongoing. First, “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001” commonly referred to as the USA PATRIOT ACT was passed and signed into law in less than 45 days. It survived until 2015 and was amended with the passage of the USA Freedom Act which restored much of what was lost in the “sunset” provision of the PATRIOT Act. Most notably the surveillance provisions of both of these acts permit extensive intrusion in to the personal life of average American citizens. This includes banking information disclosures to the government, known as the Bank Secrecy Act. The Freedom Act has placed a semi-buffer in place which requires a warrant on some telephone call surveillance, but that is a minimal restraint.

In the last seventeen years we have seen a militarization of civilian police departments unheard of before 9/11. At last checking the government has some 13,000 MRAPs to be delivered to more than 750 civilian local law enforcement agencies. The MRAP is a Mine Resistant Ambush Protection vehicle. Canadian County Oklahoma obtained one of these behemoths. The vehicle is a combat vehicle it can weigh 36,000 pounds, which most civilian streets are not designed to support. I have yet to traverse a mine field or encounter an IED in Canadian County. Also available through the 1033 program are aircraft such as the AH-1 Cobra attack helicopter. All of this can be quite daunting. A greatly militarized civilian police force brought about in response to a foreign assault.

While the attack was despicable and not to be taken lightly, maybe our internal response has been worse.
At this time in our culture where wrapping one’s self in the flag has become de rigueur. Perhaps we should step back, take a breath and look at what we are.

The United States is founded on certain principles of equality, justice and keeping the government in check. (Please note the present tense IS not the past tense WAS usage.) A nationalist is one who says I love my country, don’t say anything bad about it. A patriot says I love my country, how can I make it better. Rather than worrying about who is kneeling, we need to understand why there is a need to kneel and who is demagoging the issue with false narratives. Why open season on police stopped black men seems okay. Why a man can be shot in his own home, because shoot first and explain later has become far too common. Why a young black man can be removed from a car because the front seat was occupied by two older white women and he was a suspected “carjacker”. Why the government surveils its citizens in a manner reminiscent of regimes we have vanquished in the past.

These seemingly unrelated events are all tied to a single thread which has grown since 9/11 and that is the thread of fear. We have not had a single known episode remotely approaching the scale of 9/11 in the intervening 17 years. Yet, we have moved further and further as a society down that slippery slope of fear and distrust. Unscrupulous politicians have milked it for their own aggrandizement and made it permissible for misanthropes to dislike, or hate, blacks, Hispanics, or Muslims. Many were quick to blame Islam for 9/11 but it was their dislike for the religion which mirrored the dislike held by the terrorists themselves which was to blame. People not a religion, race or culture. When the number of white police shooting victims equals the number of black police shooting victims then there will be a white lives matter campaign and the issue will be crystallized. There are too many unnecessary police shootings.

9/11 is an important date. It is the date that too many decided that real freedom was too dangerous for us to continue. We pay lip service and want to hang it on the wall to revere but in practice well that seems a different story.

As Summer Comes to a Close

As we wind down the season going into the last week of August, I hope everyone had a great and government contact free Summer. I was thinking about how busy this Summer was for me. I presented a seminar on state law issues and Federal firearms prosecutions at the Oklahoma Criminal Defense Lawyers Association, annual Patrick A. Williams, Criminal Defense Institute, which was held at the River Spirit center in Tulsa. It was a great privilege for me to be able to address so many outstanding criminal defense lawyers from Oklahoma and elsewhere at this outstanding location. The attendees are truly lawyers committed to representing their clients to the fullest possible extent and are eager to learn how to better accomplish that goal.

I was honored at the Oklahoma Criminal Defense Lawyers Association annual meeting to be awarded the Jack Dempsey Pointer, Jr. Champion for Justice Award. This award was particularly special to me because Jack was a “Lion for the criminally accused” and more importantly to me, a very close personal friend until his passing last year. (I still miss you brother.)

I also resolved several federal cases favorably to the client’s interests. One was a dismissal. In another case I was able to avoid charges being filed against the client.

I had one client call about a telephone call he received threatening him with being arrested and the police coming to his house if he did not immediately call the specified phone number. He rightly called me instead and I quickly determined this was a phone scam not a real law enforcement contact. So I pass that along as a warning that such calls generally are frauds. When law enforcement decides to arrest they do not telephone in advance. More likely they will show up on the doorstep at 0630 banging loudly and entering quickly.

In the next week or so we will get back on track to posts regarding protecting your rights. As always remember, your rights are worthless if you do not exercise them.

When Finding Counsel

Perhaps I should take a few minutes and discuss what a person should look for when needing to retain counsel for a legal matter. I will restrict this narrative to someone needing a lawyer for a federal criminal case, though the qualities I discuss will have broader application than just this limited discussion. Some of these comments may seem obvious or even rate a — Duh! — response but I want to be as certain as possible that I don’t make any incorrect assumptions that the reader has greater knowledge than is the case. Federal criminal defense is not cheap, so you need to be reasonably sure your money is being spent as effectively as possible.

First, the lawyer should be admitted to the federal district or circuit (or be admittable) where the case is pending or about to be filed. I have practiced in several different federal district courts either permanently or temporarily admitted. I did a drug conspiracy/firearms case in the Central District of California federal court. I have done white collar defenses in the District of Kansas federal court. Both of these were temporary admissions for those specific cases. I have done countless arguments before the Circuit Court of Appeals in Denver where I was admitted some 36 years ago. I am admitted and have practiced in the United States Supreme Court. These diverse admissions are important because the demonstrate a lawyers wealth of experience in handling federal criminal cases in differing federal jurisdictions. Each district is virtually autonomous answering primarily to the Circuit Court. The eleven federal circuits are independent and what one circuit permits another may not. These courts all, of course, ultimately answer to the Supreme Court. One warning, be ware of wall hangings. ask how many of the courts of admission has the lawyer actually had a live case. If the answer is “none” then these admissions are just decorations.

Second, but equally as important, is the matter of experience. Not just legal experience, but federal criminal defense experience. A dear departed lawyer friend of mine used to say, “Federal court is no place for training wheels.” He was absolutely right. How many cases a lawyer has handled to conclusion in federal court is a metric for the depth of knowledge he/she has learned and the wealth of experience which will inform the client on the best course(s) to pursue. Knowing which motions to file and which objections to make are not merely academic exercises. Sometimes it is better to make no motion, where tactically the issue can be sprung in a cross-examination at trial. Or the objection which will draw further attention to an issue that you hoped the missed, is the objection you should not make. New offenses, that is, something the lawyer has not specifically handled before, is not an issue if the lawyer has a solid federal criminal defense foundation. Getting “up to speed” on the offense is not a major factor in the decision of which lawyer should be retained. Also most accomplished federal criminal defense lawyers will not hesitate to recommend some one if the case is an area where the lawyer does not practice.

Third, is the competence on the Federal Sentencing Guidelines. Expertise in this area of federal criminal defense is beyond essential. This part of a representation is every bit as important as the guilt/innocence portion. The lawyer you retain should be able to talk with you in depth about the sentencing process and explain nature of the process. The latest statistical numbers I have seen, state that 97% of all federal cases are resolved by a plea. That means that the lawyer should know before the entry of the plea and has discussed with the client the consequences of the plea. The lawyer should explain where there are hidden enhancements possible and determine what factors are likely to appear in the pre sentence report. Such knowledge, communicated to the client is critical for a rational decision on whether to plea or go to trial. The effects on the guideline calculation by going to trial must also be explained to the client.

Finally, there is the question of when the federal criminal defense lawyer should be retained. This is the easiest part of this discussion to answer. Retention should occur as soon as it is clear that you are being questioned about any possible federal criminal offense, EVEN if you are not the apparent target of the investigation. In the last couple of years, I have had several clients who were approached by and pressured by federal law enforcement officers regarding federal criminal offenses “of which they may have knowledge”. Once I was in the case, I contacted the agencies and told them to leave my clients alone. Though there was some posturing, I refused to let them talk to my clients. In these instances none of these clients were ever charged with any offense.

So, there you have an overview of considerations in hiring a federal criminal defense lawyer. I have limited my practice to federal criminal defense and I hope neither you nor your family ever need my services. But should you find yourself in such a predicament, I would be honored by your consideration of using our services.

Need for Neutral Magistrates

I wrote a posting last week regarding the importance of a free and impartial judiciary and somewhere it is still bouncing around in cyberspace. But it is an important topic which bears some re-statement on my part. The need for a neutral and detached magistrate (to use the Constitutional descriptor) is as obvious as it is often misunderstood.

Let’s look at the job of a judge. This person is entrusted with deciding issues based on the facts presented and the law applicable. Not an always easy task. I have previously stated that certainly in criminal cases often the law tempered with mercy is justice. Some think the job of a judge is to decide according to popular opinion. This is not correct. Judge’s know more about a case than does the public or the news media. Not everything in a case is made public, nor should it be. People should be convicted on the current charge and not whether they have been accused before. When someone is suspected of an offense today the first thing the media does is look for prior records and publish that information. But it is not relevant in a legal sense to whether or not the person committed the current offense. It may tend to sway the public but it should not sway the judge.

There are some critics who love to assert that judges are legislating from the bench. Usually this is in response to a ruling with which the critic disagrees. We can remember the Terry Schiavo brain dead case from several years ago. Those who wanted her to remain on life support equipment after some 15 years of being in a persistent vegetative state and accused the courts of legislating by not finding the law permitted the intervention the critics desired.

But judges are human and sometime mistakes are made. But mere disagreement with a ruling is not the same as a judge being, wrong, biased or exceeding his/her judicial discretion. Today we need a strong judiciary, free from any political push. The terms conservative, liberal or moderate really have no place in the discussion or perspective of the judiciary. The only term which should be considered is jurist, which is defined as an expert in or writer on law. When this person couples that ability with an assessment of the facts they become a judge. Our judiciary must remain a strong independent branch of government, subservient to neither the legislative nor the executive but rather, as intended, a check on both.