Exercise Your Rights Pt 2

I know that I may sound like a broken record, but a new opinion just released by the U.S. Court of Appeals for the Tenth Circuit drives home my point about exercising your rights when confronted by law enforcement agents. The case is unpublished, which only limits it use by lawyers and court as to its precedential value, but is as much the law as any other released opinion. In the case the court found that the appellant had waived his rights and the statements he made to Homeland Security agents were consensual.

In U.S. v. Dates, the court found that the statements made in the back of the agents car were not subject to the administration of the Miranda warnings (of TV and movie fame) because they were not made during a Fourth Amendment seizure or the product of a custodial investigation.

There is a significant misunderstanding of when “Miranda rights” must be given to an individual. The common, but wrong, perception is that you must be informed of your right to remain silent, have a lawyer, have a lawyer appointed etc., if the police or agents ask you any questions. The reality and the law are not that simple nor direct. In the Dates case, the appellant declined to talk then sort of agreed to talk and then elected not to talk then agreed to go to a fast food franchise with the agents. He agreed to ride in their car, was put in the back and questioned by an agent on the way to the franchise. On the way there and after arriving he went back and forth on talking to the agents while also answering several questions. Ultimately, he asked for a lawyer (way too late) and the agents took him home. His answers formed the basis for the agents getting a search warrant for his home and later for his indictment in federal court.

He entered a conditional plea and challenged the use of the ill-considered statement he made to the agents. The federal appellate court found the statements were not the product of any misconduct by the government and they were freely and voluntarily made, thereby usable against the appellant. There was no seizure or custody of the appellant which required the agents to advise him of his right to remain silent.

So once again, with renewed proof of the importance of what I say, I must again state: When approached by federal or other agents, invoke your rights under the Fifth Amendment not to speak to them and your rights under the Sixth Amendment to speak with a lawyer first. REMEMBER you must do this as a 5th and 6th invocation, merely saying I don’t want to talk to you is NOT ENOUGH. Then get a lawyer experienced in dealing with federal law enforcement agencies to represent you. Federal law enforcement agencies, like federal court is different. YOU need someone with the experience and expertise to deal with them.

As always, these are your rights, Use Them or Lose Them.

Exercising Your Rights

I want to re-visit a couple of topics which I have covered a few months ago. They are your Fifth and Sixth Amendment rights. Most people are readily familiar with the Fifth Amendment’s preclusion of the government forcing you to be a witness against yourself, the popularly phrased right to remain silent. The Sixth Amendment is equally important in that it provides for the right to the assistance of counsel in a criminal prosecution. As I have stated previously, these rights from your perspective, as the subject of an investigation, begins at the initial contact. I thought that today i would give some real examples of how this works in your favor to assert these as the law calls it ab initio (at the beginning).

It is always a joy to me when I get contacted at the very beginning of an investigation. I can start working for my client in ways that are not available later in the prosecution.

No identities nor time-frames are included in the following examples, except to say they have happened within the last ten years of my practice.

I had a young man come to see me who had been contacted by the FBI. He told me the situation and what the Bureau was demanding of him. That he was not involved in the crimes they were investigating but they were harassing him as if he was. He retained me to represent him, which immediately put me between him and the agents. I gave him an Assertion of Rights Form which I have created and provide to clients. This form tells the investigator that my client does not choose to talk to them, that they are to contact me and they are not to have any further direct contact with my client. The FBI Special Agents came back, he presented the form to them. They left and called me to see if I, in fact, represented him.

After confirming that I did and telling them to leave him alone they never bothered him again. They did come out one more time and peek through the windows of his house. Once I learned of this I called the U.S. Attorney and threatened to report them to the Office of Professional Responsibility if any such conduct ever happened again. It didn’t. Some time later I learned that this client was killed in an accident. As it had been a long time, I inquired if he had had any further problems from the FBI and was told no, that after I did what I did he and his family were left alone. I was gratified that he did not have to deal with their nonsense the last days of his life. This client is just one example of this, but I have had this experience with clients several times. Just the hiring of knowledgeable counsel was enough to stop the frightening experience of dealing with federal law enforcement and letting the experienced attorney be the buffer.

Sometimes there is no way to stop the prosecution from occurring. The early retention of the right counsel is just as important because it may be possible to influence the severity of the prosecution by having discussions with the investigator and the prosecuting attorney. These discussions can result in lesser or more favorable charges being brought than would have happened had the person not been represented. This mitigation is extremely important as it can impact the final resolution of the case. A good beginning generally results in a good ending. Good is, of course, a relative term. But while there may be a conviction at the end, the sentence which follows it is no less important. A shorter sentence or even probation may be obtained by what is done at the beginning of a case.

So as I have stated, when contacted: Exercise your right to remain silent and exercise your right to speak with an attorney prior to having any “conversation” with any law enforcement agent.

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.