Saturday, June 18, 2005


In the criminal law especially, the playing field should be level. The police should have the same power to investigate the rich, influential and powerful, as the poor, weak and down and out. Then we can feel that justice is being done in that regard and we will have increased confidence in the overall criminal justice system. The result will be better protection of life and property.

Take search and seizure. Which people do we want to the police to search? What vehicles or homes do we want the police to search? Do we want to leave it up to the police as to whom to search and what vehicle or home to search? If so, every man’s privacy is in the hands of every police officer.

If we do not want everyone and every place to be searched, then how do we go about authorizing some people and some places to be searched? Under the Fourth Amendment, and New Mexico’s equivalent, the power of search generally requires probable cause. That is a restriction, placed by the Constitution on the police. A further restriction, is that except in exigent circumstances (no magistrate available, immediate action needed), the police must submit that probable cause to a neutral, independent magistrate, and get permission (a warrant), before the search.

Now let us take the case of the motorist. The vehicle is stopped by the police, lawfully, because of a traffic infraction (speeding, illegal lane change, bald tires, broken tail light, etc.). This type of stop and temporary inconvenience is more likely to occur if the police officer suspects that a search of the driver and vehicle may produce contraband or other evidence of a felony. We want the stop to be made; we want the driver to be arrested if impaired; and we want proper citations to be issued. We want to be assured that the vehicle is registered, that it is insured, and that the driver is licensed. Let us assume that all of that is done. What next?

In the case of this motorist do we want her name to be run through police records so that we can see if she is wanted? That makes sense if we are deciding whether to arrest or cite, because a wanted person is less likely to appear in response to a citation than a person who is not wanted. So far, we have invaded the privacy of the driver and with justifiable cause.

In this motorist case, the police officer has a hunch, an intuition, or a suspicion, that there may be illegal drugs concealed in the car or on the person of the driver. The officer does not have probable cause. What to do? Do we want the officer to ask for permission to make these searches? Remember now that the State Police do it all of the time, and turn up drugs, money, guns, and other contraband.

If the officer does not have an intuition nor suspicion, should he be allowed to ask the driver whether the driver has drugs or firearms in the car, and then perhaps acquire suspicion by reason of the nervous response, and then request permission to search? If we do not want this to happen, we had better speak up, because that is what is happening.

It is not fair to allow the officers to search a car merely because he asks for permission and is given permission. Mere acquiescence to pretended authority is not consent. People do not consent; they acquiesce to pretended authority. The officers pretend they have authority, when they ask to search. The meek consent. They go to prison, or are subjected to a search of their vehicle and effects. Search us all; search none of us; or search only with probable cause and consent, or probable cause and a warrant. The present practice is beneath us. We should not order our officers to do it, and we should not permit our officers to do it.

The answer is to require the officer to submit her facts, by cell phone or radio, to a recording monitored by a magistrate. If the magistrate gives authority (a warrant), let the officer proceed. We have 20-30 magistrates in Bernalillo County, counting the District Judges. When the officer calls for a warrant (permission), she can explain under oath to the magistrate why she should be allowed to invade the privacy of the citizen. We will catch fewer criminals that way, but we will be protecting the constitutional rights of all of us.

Wednesday, June 15, 2005


The customary practice of the police is to fingerprint and take the mug shot of those who are arrested. The justification, among others, is to aid in the prevention of escape and to keep a record of convictions. In any event, regardless of whether there is an escape, and even if there is no conviction, the prints go to Washington. Some law enforcement agencies are seeking to add DNA to the identification material. Printing, mugging and taking of DNA are invasions of privacy, but otherwise they seem to be harmless.

Most people are glad the police follow these policies. It makes it possible to identify the perpetrator of some new crimes. As an example, a child is abducted and found dead in a shallow grave. Murder. DNA bb’s [body bits] are found, and fingerprints are found. Who is going to complain if the national database is consulted, including that part of the database provided by persons who are innocent of all wrongdoing and suspicion? No objections.

We want a database, and we will approve the keeping of such data on innocent people, and the routine (no warrant required) search of that database in unsolved cases. We are even tolerating surveillance cameras in public places for (among other things) the detection and apprehension of the wanted, by computer comparison of the current surveillance pictures with digital picture files. So the question is, do we want the government to take the fingerprints, mug shot and DNA of each of us? As has been repeatedly said, “If you have not done anything wrong, what have you got to hide?”

The fair thing, the right thing to do, is to take the information from all of us or none of us (unless in a specific case with a warrant). This would inevitably lead to a national ID card; but why not a national ID card?

Tuesday, June 14, 2005


Rush Limbaugh said today that the jury was not convinced of guilt in the Jackson sex abuse case. “They didn’t have the case; they didn’t make the case.” He said he did not know Mr. Sneddon, the prosecutor, but that he, Limbaugh, just knew that Sneddon presented a case which did not convince an ordinary group of jurors.

This assumes that the jurors were not convinced. You will never get the truth from post verdict interviews of jurors if they have pardoned an accused. Some of the jurors have said that they did not like the mother witness. That should be enough to furrow the brow. Some criticized the parents of the boys for allowing the boys to sleep with Mr. Jackson. That should cause puzzlement.

Under our jury system, the jurors are judges of the facts, and they take an oath to decide the case according to the law and the evidence. They promise to set aside their biases, and their prejudices, and to not be influenced by what may be the consequences of their verdict.

Contrary to the rules, the prospective jurors are subjected to obfuscation and appeals to bias and ignorance, by some defense lawyers (mouthpieces). The jury selection system has been allowed to become an opportunity for the mouthpieces to argue their cases and condition the jury, under the guise of seeking a fair and impartial jury.

The conditioned jury has been misled and is ready to justify its action in granting the pardon. Maybe they should be allowed to simply grant a pardon; but that is not their right under the law as it is, the rule of law.

The jury system is not perfect; it is not even very good. My suggestion is increase the number of jurors, to 25, say; eliminate the exemptions; eliminate the peremptory (no reason needed) challenges to jurors; and allow a super-majority verdict. In this day of the mobile society, and the broadened jury pools, it is simply unwise to allow one or two jurors to prevent a verdict.

Sunday, June 12, 2005


There is a push on for closure of Guantanamo Bay prison for terrorists, or at least for a commission to study, presumably, what is going on there. As a wise man used to say, "First things first." What is our overall approach to the handling of captured persons suspected of being terrorists? What work are we willing to order our service men and women to do, and what, if any chore, do we farm out to foreign allies, who reputedly are less sensitive than we? More to the point, are we American citizens, in this time of international threat, entitled to know how our military people treat those they take into physical custody on the basis that they are terrorists?

The whole hullaballoo began with the pictures of Pvt. England and her leashed Muslim terrorist. The investigation concentrated on the humiliation pictures and acts which caused humiliation. Little has been said about the physical alleged torture.

First, the pictures show humiliation; but the pictures raise the question of how did our guards get the prisoners to undress and be humiliated. What did our guards do, or threaten to do to get the prisoners to pose with electric wires on their privates?Second, the pictures do not show the alleged physical violence, including assault with a broom stick. Interrogation in a shower (?) of a prisoner who had a sack over his head (supposedly concealing his head and face injuries from his interrogators)? Insertion of a broomstick is not a new technique; it was used by convicts on the guards at the New Mexico State Penitentiary in the 1980 riot; but it is sad to see our armed forces put in the position of having to do such things.

The most important point is that the administration in effect concedes that the conduct in Iraq was wrong (not that it went wrong), yet the administration does not state that such conduct is prohibited in Guantanamo. Apparently, the line is being drawn between prisoners who are acknowledged to be under the Geneva convention protections against torture, and those in Guantanamo, who are not protected by the convention.

The question that should be raised, and debated in the United States now, is whether we condone torture of any captives (general term covering prisoners of “war” and terrorists). But so we do not get sidetracked, we also need to define “torture,” because some are in effect condoning what others call torture, and describing it as “conditioning,” “sleep delay,” or “diet adjustment.”

Maybe it is all right to permit our soldiers and civilian operatives to engage in physical or mental torture to get information under certain circumstances. I cannot conceive it, but I am willing to listen. But let us openly debate it. Also, remember that the Fourth Amendment (which I do not suggest applies here, although why not?) not only requires probable cause; it requires that such probable cause, known to the police, be submitted to a neutral, detached magistrate before action is warranted. Would it not be reasonable and fair to have some such requirement in the handling of terrorists?

Exigent circumstances excuse the submission to the magistrate. But take cases such as these. We have the prisoner under interrogation. He or she declines to talk, except for giving name, rank and serial number (if any). We, the interrogators, believe that the circumstances are such that torture (start with mild torture or with severe torture, depending on whether time is of the essence) is necessary and permitted by law. Why not submit a sworn written statement (email okay; voice mail okay) to a Judge and get a warrant that says okay to use water-boarding (repeated near-drownings), or forced masturbation, or forced pyramid stacking of naked people, or chained naked on concrete floor in own waste, or whatever else the CIA and Army intelligence want to propose.

Remember that Secretary Rumsfeld had a list of more than 20 approved techniques, kept secret so far. He originally approved 23, in writing; and when the pictures became public, the 23 became 20. What were the three which were dropped? What are the 20 which have been retained? Does Sen. John Warner know? We could feel much better if he, at least, were let in on the information.

Let us acknowledge what is happening, what methods we are willing to use under what circumstances, what the procedural requirements will be, what the rights of the prisoners shall be, and then we will have a rule of law. Then we should abide the rule of law. If the rule of law that we adopt does not meet with international approval, we should consider but not be controlled by that (for example, maybe we want to withdraw from Geneva rules; but at least we can say we are a nation which believes in the rule of law).

Finally, why get into a debate with the International Red Cross or Amnesty International about what is going on at Guantanamo or any of our other prisons? Open them to scrutiny by any legitimate international oversight group. Then we can regain our pride in being citizens of a country that is governed by the rule of law. We may have to give up torture as a weapon of self defense in the war on terror. That will be our choice; at least we will be honest about it. Some cringe when they think we may be using torture, or using torture unnecessarily or unwisely, but how is one to know whether we are or not?