Of course that is not true. The Miranda rights mean what they say “Everything you say may be used against you . . . But if they don’t plan to use any statement you make they don’t have to give you the Miranda rights.

Furthermore the Miranda rights only apply to statements made while you are in custody as a result of interrogation. Thus if your not in custody, i.e. if you are free to leave, or if you make the statement freely without being asked the statement can be used against you even if you are not given the Miranda rights. Statements made despite the lack of being given the Miranda rights can also be used in cross examination.

And I can assure you that any police officer with half of a brain can find some way to make it look like a statement is given either while the person is not in custody of not as a result of interrogation.

An example occurred in the prosecution of Michael Slaight for receiving pornography on his computer. But the Seventh Circuit, in a decision written by Judge Richard Posner, saw through it and reversed the conviction.

Through viewing internet cites used by viewers of child pornography state and federal agents found out that Slaight received child pornography in interstate commerce, a violation of Federal law. they had enough information to obtain a search warrant for his house and his computer. In fact they had enough information to arrest him but they didn’t because they wanted him to give a statement while he was out of custody.

They went to his house. When he didn’t answer the door, nine officers knocked it down. They ordered him to get dressed. They asked him to voluntarily come to the police station. Knowing that he didn’t have a car they offered to let him drive himself to the station. Once at the station, two officers interrogated him in a small room. Repeatedly, they told him he could leave at any time. but he would have had to trip over an officer to get out of the interrogation room and since they already had enough information to arrest him he did not believe they would let him go. At the end of the interrogation they read him his Miranda rights and arrested him.

In the end Judge Posner’s decision found that an average person in Slaight’s position would not feel free to leave due to the show of force at his home, the protracted questioning of him in the claustrophobic setting of the police station’s Lilliputian interview room, and the more than likelihood that he would be formally placed under arrest if he tried to leave because the government already had so much evidence against him.

Secure Communities is a program under which the fingerprints of everyone arrested in a community are provided to ICE. However under San Francisco’s Sanctuary City ordinance only those immigrants who are charged with felonies, found to have a previous felony or ICE contact in their criminal history are reported. Initially ICE promised that only those charged with felonies would be subject to deportation.

As a study quoted in the New York Times shows nationwide twenty-six per cent of those deported under the program do not have criminal records. In some places the percentage is higher. In Maricopa County, Arizona the percentage is fifty-four per cent and in Travis County Texas it is eighty-two percent. By ICE’s own records seventy-nine percent of those deported either had no criminal record or convictions for minor offenses.

Prior to the June 8th implementation of Secure Communities in San Francisco, ICE and California Attorney General Jerry Brown told Hennessy that there was no way to opt out of the program. But in response to statistics showing that many of the people deported are innocent or are guilty of only minor offenses and ICE has agreed to make the plan voluntary. They have agreed to meet with Hennessy to discuss the city’s objections to the program. As Hennessy has pointed out in the past many immigrants are intimidated by the program and refuse to report criminal activity due to fear of deportation. A wife may not report domestic violence, for example if she knows that her husband may be deported. She want medical help for herself and treatment for her husband but she does not want him to be deported where he will not be able to support her and have contact with their children.

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I cannot imagine how many court orders she has violated. Every judge I know instructs the jury not to discuss the case outside of the jury room until after the verdict is in. They are also instructed not to discuss the trial with anyone but their fellow jurors and then only when they are in the jury room. Perhaps most importantly they are instructed not to make up their minds until all of the evidence is in.

Furthermore it raises the question of whether she discussed her feelings with the other jurors prior to the completion of the testimony. If so she may have tainted their ability to be impartial. Did she make other jurors her Facebood friends. And if so did they see her posting?

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Kloehn was the sole defense witness. On the fifth day of his testimony he learned that his son who was at home in Las Vegas, suffering from end stage melanoma had a massive seizure and in the doctor’s words “ha[d] very little life expectancy.” His lawyer moved for a continuance. He argued that Kloehn was unable to concentrate on his testimony. The prosecutor argued that

if he wanted to be with his son, he could just “finish his testimony, and . . . go back to Las The government’s attorney suggested that if he wanted
to be with his son, he could just “finish his testimony, and . . . go back to Las Vegas.” She argued that “[a] break would operate . . . to the significant detriment of the jury’s ability to even remember what happened during the course of the trial.” She argued that “[a] break would operate . . . to the significant detriment of the jury’s ability to even remember what happened during the course of the trial

The motion was denied. The next day Kloehn finished his testimony and the prosecutor put on a IRS agent for rebuttal. When it became clear that the rebuttal would not be completed that day, Kloehn’s attorney asked for permission for his client to catch an afternoon flight from Los Angeles to Las Vegas. The judge ended testimony for the day and permitted Kloehn to miss the remainder of the trial.

An hour after Kloehn arrived at the hospital his son died.

The next day the issue came up as to what to tell the jury about Kloehn’s absence. His attorney suggested that they be told that he had a death in the family. The judge suggested telling the jury that their was a family emergency, The prosecutor want the jury to be told that Kloehn chose not to be in the courtroom. The judge gave the following instruction:

Ladies and gentlemen, you may notice that Mr. Kloehn is not here. He is unable to be with us today. He has a right to be present. He has a right ot to be present. He is not required to be here, so you shouldn’t infer anything from the fact that he is not able to be here today.

The appellate court ruled that:

1.The defense had been diligent in its preparations, made the motion in a timely manner and the purpose of the motion was not purely for delay.

2. If the motion would have been granted the defense would have accomplished its goal in that Kloehn would have been able to spend the last hours of his life with his son.

3. The prosecution and the court would not have been inconvenienced by the delay. It questioned the good faith of the prosecutor for arguing that the jury might forget the facts of the case during a two day delay since the court had taken four days off at Thanksgiving and three day weekends.

4. Finally it found that Kloehn was prejudiced by the denial of the motion since he had not been able to focus and since the judge’s instruction allowed the jury to believe that Kloehn did not believe the trial was important and that he was going to be found guilty.

Judge Trott dissented arguing that any error was harmless. There was no hard evidence that Kloehn was hurt by any error. But since the government did not argue that the error was harmless in the trial court Judge Reinhardt writing for the majority found the issue waived.

The conviction is reversed and a new trial is ordered.

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Here is another example. An unnamed man who lived in San Jose, California attempted to commit suicide with a nail gun. His estranged wife called the police. Three officers were sent to the residence. He refused to come out of the house or open the door. The police broke the door down and found the injured man with a knife. He confronted them. They shot him six times and killed him. The police described the 42 year old butcher as “armed and confrontational” but there is no evidence that he attempted to injure the officers.

It’s not uncommon. He got what he wanted. But are you trying to tell me that three armed officers cannot take a man into custody or get him to a hospital without killing him. If he lunged at the officers with a knife one shot in the leg would have stopped him. He still may have died if he fell on the knife. But in most likelihood, he would have fallen down. One of the officers could have grabbed the knife and an ambulance could have been called.

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Officer Bruce Rhoads of the Tama County Sheriff’s Department obtained a search warrant for Robbins residence and for the residence of Michael Watson. The search warrant was based upon Rhoads’ experience, Watson’s criminal history, Watson’s purchases of pseudoephedrine, Robbins’ purchases of pseudoephedrine, suspicious traffic near Watson’s house, and the presence of Robbins’ car parked at Watson’s house. Pseudoephedrine is a drug commonly found in cold medications and it can be used in the manufacture of methamphetamine.

During the search of the houses drug related items were found. Robbins and Watson were charged with various drug charges.

The Fourth Amendment mandates that a search warrant must be supported by probable cause. In other words there must be a nexus between criminal activity and the place to be searched. The nexus must be great enough that “under the totality of the circumstances a person of reasonable prudence would believe that evidence of a crime might be located on the premises to be searched.”

Nowhere was it alleged that Robbins purchased pseudoephedrine in amounts that exceeded the legal maximum or that she purchased it more often than permitted by law. The appellate court ordered the suppression of all evidence found at Robbins’ home due to the lack of probable cause. Probable cause, according to the court cannot be based purely upon the legal purchase of a precursor drug.

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While the Supreme Court often hears direct appeals and appeals involving writs of habeas corpus. these appeals generally involve procedural and legal matters. In the absence of a flawed procedural or legal matter it is generally assumed that the finding of a jury is sacrosanct.

Pursuant to the Supreme Court’s order Judge William T. Moore Jr. of the Southern District of Georgia held an evidentiary hearing allowing Troy Davis to present witnesses in an attempt to show that evidence that was not available at the time of his trial exculpates him.

The court found that Davis presented insufficient evidence that a jury could find by a clear and convincing standard that he was innocent. He provided several types of evidence. Much of the evidence was recantations of evidence presented at trial. But the court found much of the recantations not credible and found the rest of the recantations to be too weak to convince a jury. Davis also presented evidence that another person, Sylvester Coles committed the murder including, hearsay statements by Coles. But again in light of the hearsay nature of the statements the court found it too weak to exculpate Davis. Other evidence was directly exculpatory. But the court found it to be smoke and mirrors and did not find it to be credible.

But prior to making his finding that Davis did not prove his case, Moore found that the Eighth Amendment permitted post trial findings of innocence when new evidence is presented. In a number of cases the Supreme Court has considered the appropriateness under the Eighth Amendment of the death penalty based upon the characteristics of the offender. In such cases the Court has used a two step process.

First, a court “considers ‘objective indicia of society’s standards, as expressed in legislative enactments and state practice’ to determine whether there is a national consensus against the sentencing practice at issue. . . . Second, a court must independently determine whether the punishment in question violates the constitution based upon precedent and the court’s ‘understanding and interpretation of the Eighth Amendment’s text, history, meaning, and purpose.’”

As to legislative enactments the court took notes of numerous enactments including those allowing DNA test post conviction to test jury convictions. It pointed out that much of the purpose of our criminal laws is to prevent the imprisonment and execution of innocent people. Therefore Moore found that the Eighth Amendment requires the exculpation of innocent people post conviction. But it found that Troy Davis had not proved his innocence. This is not the last word. The decision will be appealed.

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Sergeant Shawn Sydnor the supervising officer on duty at the jail told “J. S.” that he was cute and that he would make a good girlfriend for an inmate. He told Lanham and Freeman that “J. S.” needed to be scared. While pretrial arrestees were generally kept in the detox cells Sydnor asked Lanham and Freeman to find a cell in general population with convicted criminal serving their terms for “J. S.” Lanham found him a place in Cell 101 in 26 Hall. Twenty-six Hall was notorious for being a very rough place and for numerous incidents of sexual predatory behavior. Prior to placing “J. S.” in cell 101 Lanham and Freemen went tp the cell and spoke with Bobby Wright. Lanham told Wright that they wanted the inmates to f-ck with “J. S.” Lanham and Freeman took “J. S.” to the cell and left hem there all night without checking in on him. Victor Zipp an inmate in the cell with a reputation for walking around nude raped “J. S.” and with help from other inmates roughed him up.

The next day Syndor, Lanham and Freeman agreed to report that they had placed “J. S.” in the general population because they needed to decontaminate the detox cells.

“J. S.” was released the next day and two days later his father took him to a doctor who confirmed the rape.

Lanham, Freeman and Sydnor were indicted. Sydnor plead guilty and cooperated with the prosecution. Lanham and Freeman went to trial and were convicted of conspiring to violate “J. S.’” civil rights and making a false report.

The Sixth Circuit Court of Appeals upheld the conviction. They found that while the judge should have excluded two jurors who could not promise to be impartial the defendants were not prejudiced since they used peremptory challenges to exclude the two. The Court did not find that the lack of two of the defense’s peremptory challenges affected the trial.

The defendants objected to limitations placed on their cross examination of Sydnor. But since they did not complain at trial they were limited to plain error analysis and since various appellate courts are divided on the issue any error is waived under the plain error analysis. “To obtain a conviction for conspiracy to violate civil rights under § 241, the government must prove that defendants knowingly agreed with another person to injure the victim in the exercise of a right guaranteed under the Constitution. . . The government also must prove beyond a reasonable doubt that there was specific intent to commit the deprivation.” The prosecution met the sufficiency of the evidence test. There was sufficient evidence that Syndor, Lapham and Freeman agreed to place “J. S.” in a cell knowing that he was likely to be abused and raped. To meet the sufficiency of the evidence test ir is only necessary that there be sufficient evidence that any rational trier of the fact could find the elements of the offense. Here there was sufficient evidence of both conspiracy and making a false report. As a result the conviction was upheld.

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His first stop on Super Bowl Sunday was a post office near the stadium. From there he mailed six identical envelopes addressed to The New York Times, the Los Angeles Times, the Phoenix New Times, the Associated Press; theshizz.org and azpunk.com. The last two being music related websites. The “media packages” as he called them contained “a five-page ‘econo-political’ manifesto entitled ‘Karma Leveller: Bad Thoughts on a Beautiful Day’ (the ‘Manifesto’); a brief account of a recent incident involving Havelock, faux pipe bombs, and the police of Tempe, Arizona; an apologetic letter to ‘the Police,’ directing them to his car, ‘which would be parked in Glendale somewhere around the stadium, and imploring that the police ‘not take their hatred for him out on his dogs’; and another letter comprised of self-described ‘random blatherings.’”

After mailing the packets he went to the stadium where he got cold feet and thankfully did not shoot anyone. Instead he called his parents and arranged to meet them and his fiancee. When he told them the story they suggested that they go to the police. The Tempe police could not find any crime committed in Tempe and they called in the FBI. Havelock was indicted and convicted on six counts of of mailing threatening communications in violation of 18 U.S.C. § 876(c).

On appeal he argued that he was not guilty since the media packet were not directed to individuals but instead to corporations. Normally a corporation is considered a person unless the intent of Congress is otherwise. Section 876(c) states in pertinent part

Whoever knowingly so deposits or causes to be delivered [by the Postal Service according to the direction thereon], any communication with or without a name or designating mark subscribed thereto, addressed to any other person and containing any threat to kidnap any person or any threat to injure the person of the addressee or of another . . .

The government argued that the jury could consider the contents of the letter to determine the addressee of the letter and the dissent by Judge Graber argued that when a letter is sent to a corporation the addressee is whoever opens the letter. But the majority supported Havelock’s position that the addressee must be a natural person and must be named on the front of the envelope. It found that the common meaning of the language in the statute which says that the offending communication must be addressed to a person indicates that it means a natural person and not a corporation. Therefore the majority reversed the conviction.

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