I'll have a fifth, please

On Thursday morning, Harris County Assistant District Attorney Rachel Palmer appeared before a grand jury looking into the troubled HPD mobile alcohol testing vans (BATmobiles). Ms. Palmer invoked her Fifth Amendment right to remain silent and refused to answer any questions.

The grand jury then filed a motion to compel with State District Judge Susan Brown. A hearing on that motion was held Thursday afternoon after which Judge Brown announced she would hear from both sides on Monday.

Now why would the ADA invoke her right to remain silent? Don't they like to tell us that an innocent person has nothing to hide? That our client had the opportunity to give his side of the story but chose not to?

And how might her answering questions incriminate her?

Did the Harris County DA's Office know about the problems with the BATmobiles? Did prosecutors provide that information to defense attorneys? Were prosecutors aware they were putting on perjured testimony regarding the reliability of the breath test machines in the vans? Did the DA's Office prosecute motorists knowing that the "evidence" upon which they relied was faulty?

However this shakes out, it's a black eye for Harris County DA Pat Lykos. It doesn't look good when a prosecutor refuses to answer questions from a grand jury investigating the conduct of both the police and the DA's Office.

I just wonder if the DA's Office is so hell bent on prosecuting DWI's that they will violate the law in so doing, what do they do on more serious cases?

See also:

"Your Fifth Amendment at work," Defending People (12/15/11)
"Motion to compel," Life at the Harris County Criminal Justice Center (12/15/11)

Shhh! It's a secret

Naturally the very existence of the document is a national security secret (or at least a pinkie-swear secret) - but what you expect when the document in question is used to justify the murder of an American by his own government?

Jeff Gamso had the right idea this past Sunday. Reading about the memo and what may, or may not, be contained within is the equivalent of one of those friend of a friend stories that Jan Harold Brunvand collected in his quest for urban legends.  

The memo, written last year, followed months of extensive interagency deliberations and offers a glimpse into the legal debate that led to one of the most significant decisions made by President Obama — to move ahead with the killing of an American citizen without a trial.

The secret document provided the justification for acting despite an executive order banning assassinations, a federal law against murder, protections in the Bill of Rights and various strictures of the international laws of war, according to people familiar with the analysis. The memo, however, was narrowly drawn to the specifics of Mr. Awlaki’s case and did not establish a broad new legal doctrine to permit the targeted killing of any Americans believed to pose a terrorist threat.

The Obama administration has refused to acknowledge or discuss its role in the drone strike that killed Mr. Awlaki last month and that technically remains a covert operation. The government has also resisted growing calls that it provide a detailed public explanation of why officials deemed it lawful to kill an American citizen, setting a precedent that scholars, rights activists and others say has raised concerns about the rule of law and civil liberties.

President Obama wasted no opportunity to claim credit for the killing of Mr. Awlaki (al-Zawahri in the original article) when he thought it might get him support for his upcoming re-election bid. But, once the criticism began rolling in, President Obama and his minions circled their wagons. And now we have this secret memo (that supposedly exists) written for the express purpose of justifying state-sponsored murder.

The legal analysis, in essence, concluded that Mr. Awlaki could be legally killed, if it was not feasible to capture him, because intelligence agencies said he was taking part in the war between the United States and Al Qaeda and posed a significant threat to Americans, as well as because Yemeni authorities were unable or unwilling to stop him.

See, that's all you need to know. Our intelligence agencies said so - therefore it must be the truth. Because he said some bad things and because some people did some bad things we must kill him. We must ignore the Constitution in order to protect ourselves.

Or some line of garbage like that. We live in a society in which a great number of folks don't believe anything the government tells them. President Obama could tell everyone today is Wednesday and there will be a segment of the population convinced he is lying. Yet these same folks have no problem believing the government after it orders the killing of an American citizen.

But, if I were the president, maybe I'd rather deal with the muted backlash after ordering a hit on an American citizen rather than questions about how poorly the economy is performing.

Death without due process

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. -- 5th Amendment

The United States has killed two of its own. On Friday, under orders from President Obama, a US military airstrike resulted in the death of Ayman al-Zawahri, an American-born cleric who had become a vocal critic of US policy. Killed alongside Mr. al-Zawahri was Samir Khan.

In July, U.S. Defense Secretary Leon Panetta said al-Awlaki was a priority target alongside Ayman al-Zawahri, bin Laden's successor as the terror network's leader.

The Yemeni-American had been in the U.S. crosshairs since his killing was approved by President Barack Obama in April 2010 — making him the first American placed on the CIA "kill or capture" list. At least twice, airstrikes were called in on locations in Yemen where al-Awlaki was suspected of being, but he wasn't harmed.

Mr. al-Zawahri and Mr. Khan weren't arrested for anything. They weren't charged with anything. They were never indicted. They were never tried before a jury of his peers. They were never convicted of any crime against the United States.

There was no due process of law. Mr. al-Zawahri and Mr. Khan, were deprived of their most basic rights because they dared to voice criticism of US policy in the Middle East.

President Bush (the Younger) created a shitstorm when he ordered suspected terrorists and their supporters to be held indefinitely in prison. People were also up in arms (at least those who knew what was going on) about the expanded powers given to the government to spy on its own citizens. But neither of those policies holds a candle to ordering the death of American citizens without affording them due process of law.

As flawed as the Troy Davis situation may have been, at least he was afforded his day in court. That's more than Mr. al-Zawahri and Mr. Khan were given. If los federales had the goods on Mr. al-Zawahri and Mr. Khan, why not obtain an indictment? Why not seek to extradite them? Why not put them on trial? If their deeds were serious enough to warrant death - then let's see the evidence. What are you afraid of, President Obama?

Is it because their "crimes" involved being vocal critics of your foreign policy? Is it because of the words they spoke and wrote?

Thus far President Obama has caught flak for the state of the economy on his watch. Now it's time he catches it for ordering the deaths of two American citizens and depriving them of their constitutional rights. When President Obama was sworn into office, he took an oath to defend the US Constitution.



President Obama, you just violated that oath. You were not only part of a conspiracy to deprive two American citizens of their constitutional protections - you were the man in charge of the conspiracy. In depriving them of their constitutional rights, you also conspired to murder the two men.

See also:

"Ron Paul calls US killing of American-born al-Qaida cleric in Yemen an 'assassination.'" Washington Post (Sept. 30, 2011)

"Obama praises al-Awlaki killing," Time (Sept. 30, 2011)

Celebrating the Fourth (of July) by gutting the Fourth (Amendment)

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness. Prudence, indeed, will dictate that governments long established should not be changed for light and transient causes; and accordingly all experience hath shown that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same object evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security. -- Declaration of Independence

What better way to celebrate the anniversary of one of the most important documents in American history than to institute a statewide No Refusal Weekend for the Fourth of July?

Anyone who is pulled over for suspected drunk driving will have to either submit to a breath test or have their blood drawn. Officials say it takes as little as 15 minutes to secure a warrant for a blood draw and five minutes after that to get the blood drawn.

Fifteen minutes to eviscerate the rights of the accused. Just fifteen minutes to determine whether or not probable cause exists to open a vein. Just fifteen minutes to order an invasive procedure for an offense that is but one step removed from a traffic ticket.

We can celebrate the Fourth by pretending that our Fourth Amendment right to be left alone doesn't exist. We all know there's no such thing as an unreasonable seizure when a man wearing a badge smells alcohol on the breath of someone driving a car.

We can celebrate the Fourth by pretending that our Fifth Amendment rights to remain silent and not to incriminate ourselves doesn't exist. DWI is the only offense in which a person choosing to remain silent and not incriminate themselves is legally used against them.

We can celebrate the Fourth by pretending that the right to counsel under both the Fifth and Sixth Amendments doesn't exist. Heaven forbid a person accused of drunk driving be allowed to consult with an attorney before answering any questions or performing roadside coordination exercises.

However you choose to celebrate the Fourth, be careful, be safe and don't become a victim of the police state.

The slow drip of tyranny

I came across the following message on one of the listservs I frequent the other day:

When did we as a society decide it was ok for the government to put electronic policing devices in our private homes and cars and to make up pee in cups every time we turn around? who is to blame? 

If everyone simply refused to comply with those conditions, what would happen?

Freedom is what would happen.

But it won't. We live in a society of lemmings. Few people are willing to rock the boat and those that do are labeled "troublemaker" and "subversive."

We have meekly turned to the state and asked it to protect us. We have decided that we would rather be safe than free. That we would rather have order than liberty.

We have sat by and watched as the state has whittled down the protections of the Bill of Rights. We have stood by as the police and courts have sliced, diced and chopped the Fourth Amendment into a meaningless melange of words on a piece of paper. Words now devoid of meaning.

We did nothing as the state assaulted our right to remain silent and not incriminate ourselves. We stood in awe as the Supreme Court made a mockery of the Fifth Amendment. Instead of having the right to remain silent and speak with an attorney before answering questions, the state now has the right to question us without an attorney unless we say otherwise.

We sat there blissfully unaware as our right to counsel was cut out from underneath us. We've allowed the Supreme Court to decide just what constitutes a critical moment in the criminal (in)justice system. I'm sorry, but being accosted by the police is the critical moment. Did someone along the way forget that we have the right to be left alone?

We have gladly handed over our freedom to the tools of the police state at airports and at the entrances to courthouses across this land. We have allowed the state to molest our children and terrorize the old, the sick and the infirm in the name of "protecting" us from terrorism.

We have gone from a society in which men were not afraid to sign their own death warrant by signing the Declaration of Independence to a society in which we are scared shitless to do anything that might bring attention to ourselves. We have gone from a society that took up arms and fought for its independence to a society that willingly bends over and takes whatever the state sends our way.

Why are we were we are now? It's because no one drew a line in the dirt and dared the powers of the state to cross it. It's because no one was willing to stand up and challenge the authorities.

Thomas Jefferson once said that "every generation needs a revolution."

We had one in 1776. Another one in the 1860's. Maybe it's time. Again.

A legal fiction

Texas courts like to maintain this legal fiction that license suspensions following a breath test refusal or failure are just civil matters. As a result of that fiction, at a license suspension hearing, the attorney for the Department of Public Safety must only show that the arresting officer had probable cause to believe the driver was driving while intoxicated.

Since it is treated as a civil matter, double jeopardy does not apply. Unless one is found not guilty by a jury, the DPS can still suspend a motorist's license even if the DWI case is dismissed.

Since it is treated as a civil matter, a motorist arrested for DWI does not have the right to consult with an attorney before deciding whether or not to submit to a breath test.

But how does the following statement fit within that legal fiction?

"If you refuse to give the specimen, that refusal may be admissible in a subsequent prosecution. Your license, permit or privilege to operate a motor vehicle will be suspended or denied for not less than 180 days, whether or not your are subsequently prosecuted for this offense." -- DIC-24

A license suspension certainly sounds like a criminal sanction and this nonsense about a refusal being admissible in a criminal prosecution exposes this legal fiction for what it is -- a cheap end run around the 5th and 6th Amendments.

At the point an officer asks a motorist to submit to a breath test, that motorist is already under arrest for drunk driving. At that time the motorist is sat down in front of the breath test machine, he isn't free to leave. No matter his response, the answer is testimonial. That triggers the 5th Amendment. As being asked to submit to a breath test is a significant moment in a DWI investigation, that should trigger the motorist's 6th Amendment right to an attorney.

Would the presence of an attorney gum up the works? Yep. Might allowing a motorist to consult with an attorney before deciding whether or not to blow result in more informed decisions? You bet. Would the presence of an attorney reduce the intimidation factor at the station house? Without a doubt.

It's time to end this legal fiction in Texas. Either eliminate the civil proceeding or be honest and criminalize breath test refusals. But doing that might just expose the legal fiction for what it was.

Reciprocal discovery would only harm defendants

Wouldn't it be great to have a laundry list of items that the state is required to produce prior to trial?

No more drafting discovery motions to get any recorded statements made by your client or anyone else the state intends to call at trial. No more drafting discovery motions to get a listing of any prior convictions for your client. No more drafting discovery motions to obtain search warrants, affidavits and returns. No more drafting discovery motions to obtain a list of expert witnesses the state intends to call. No more drafting discovery motions to get your hands on those experts' reports.

Sounds pretty damn good, doesn't it?

That is if you don't mind giving the prosecutor any written statements you client made, any information you have about his criminal record, a list of evidence you plan to introduce at trial, the names of your expert witnesses and any written reports they may have produced.

Reciprocal discovery only sounds like a good idea to the civil attorneys who are trying to find a way to replace their income after tort reform and attorneys who are too damn lazy to do any work on a case outside of standing alongside their client as they accept the state's latest offer.

The proposed legislation makes a mockery out of the 5th Amendment's protection against self-incrimination, emasculates the presumption of innocence and lowers the state's burden of proof.

Leading the lambs to slaughter

I was in County Court No. 2 in Galveston County this morning to file a motion and discuss a case with the prosecutor. Despite taking my time getting on the road, I managed to find my way into the courtroom at docket call.

And that's when it happened.

Something that was so jarring. Something that didn't sound right as soon as the words hit your ears.

A defendant answered the docket call. Judge Barbara Roberts (one of the new judges swept into office this past November) asked him if he had an attorney.

The gentleman said he did not.

"Would you like to speak to the DA?" came the question from the bench.

The man said he would. The judge asked him to come up front to see the clerk. When he got there the clerk handed him a waiver of rights

She never informed him that he had a right to counsel. She never informed him that if he couldn't afford an attorney he could petition the court for appointed counsel. She never informed him that the prosecutor did not represent him. She never informed him that anything he said to the prosecutor could be used against him.

In short, she failed to admonish him properly.

She failed to perform her job which is to sit as a neutral and impartial arbiter and to see that a criminal defendant's rights are not violated in her court.