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View Full Version : Obama: Taking away your civil liberties



tommieharris91
4/25/2009, 01:36 PM
http://www.telegraph.co.uk/news/worldnews/northamerica/usa/barackobama/5214985/Barack-Obama-administration-seeks-to-change-police-questioning-law.html

Frozen Sooner
4/25/2009, 01:45 PM
I can see the argument, though I disagree with it.

I'm relatively sure that there's no prohibition against a criminal suspect volunteering information without an attorney present as is. You just can't continue interrogation without counsel present if the suspect has requested an attorney. That seems reasonable to me-an unsophisticated person may not understand the ramifications of the Fifth Amendment's protections even if they HAVE been properly Mirandized.

Dunno. One of you actual lawyers want to chime in and tell me if I'm incorrect there?

John Kochtoston
4/25/2009, 02:29 PM
I can see the argument, though I disagree with it.

I'm relatively sure that there's no prohibition against a criminal suspect volunteering information without an attorney present as is. You just can't continue interrogation without counsel present if the suspect has requested an attorney. That seems reasonable to me-an unsophisticated person may not understand the ramifications of the Fifth Amendment's protections even if they HAVE been properly Mirandized.

Dunno. One of you actual lawyers want to chime in and tell me if I'm incorrect there?

Not yet a lawyer, but my recollection from Crim Pro is that, under Jackson and a couple of other decisions, if a suspect requests a lawyer, police must discontinue questioning for a reasonable time period, unless the suspect reinitiates the communication.

The way I'm reading the proposed change, is that, if Jackson is overturned, the police could keep questioning a suspect, even if he requests a lawyer. He's still not compelled to answer, of course, but, IMHO, a badgering cop could get just most suspects to start talking, especially the ones Jackson was trying to protect.

Frozen Sooner
4/25/2009, 03:25 PM
Sorry, wasn't clear-the administration's argument seems to be based around a supposition that the ruling as currently interpreted prevented a willing suspect from talking. That doesn't seem to hold water.

John Kochtoston
4/25/2009, 04:00 PM
Sorry, wasn't clear-the administration's argument seems to be based around a supposition that the ruling as currently interpreted prevented a willing suspect from talking. That doesn't seem to hold water.

Don't think it's your fault, it's the article's:

FTA:

"The Michigan vs Jackson ruling in 1986 established that, if a defendants have a lawyer or have asked for one to be present, police may not interview them until the lawyer is present.

Any such questioning cannot be used in court even if the suspect agrees to waive his right to a lawyer because he would have made that decision without legal counsel, said the Supreme Court."

Those grafs seem to serve cross-purposes. The first states that, if a suspect has a lawyer or asks for one, then questioning must cease. That's the state of the law now, as I understand it.

The second either claims that either: 1) a defendant can't waive his right to a lawyer without first talking to a lawyer. I'm pretty sure this is NOT the state of the law. OR

2) The suspect cannot ask for a lawyer, and then change his mind, without first talking to a lawyer. IIRC, he can change his mind if he reinitiates the conversation, but the police cannot keep badgering him to change his mind, and then later claim he waive his rights to a lawyer.

This, IMHO, is the way things should be, and I'd be disappointed in my President and his Justice Department if they took the position that police can keep badgering a suspect even after he's asked for a lawyer.

I'm also not really happy that the Obama Justice Dept. seems to be taking this view of of VI (though they'll hardly be the first J.D. to take this position, R or D):

"The sixth amendment of the US constitution protects the right of criminal suspects to be "represented by counsel", but the Obama regime argues that this merely means to "protect the adversary process" in a criminal trial."

The adversarial process is pretty meaningless if a suspect makes indefensible admissions while being interrogated.

Frozen Sooner
4/25/2009, 04:18 PM
Agreed on the point that the police should not be able to coerce someone into waiving their right to have an attorney present.

An unsophisticated suspect may make an incriminating statement without realizing it. He is entitled to get the advice of counsel on what he can (and should) remain silent on.

John Kochtoston
4/25/2009, 04:26 PM
BTW, Froz, if you're not sick of these types of debates yet, you will be. :D

Frozen Sooner
4/25/2009, 04:27 PM
Heh. See what's sick is I LOVE this stuff.

Okla-homey
4/25/2009, 04:27 PM
Under Jackson, if a perp lawyers-up, all questioning must cease. period.

I think that's a pretty good rule myself, 'cuz cops lie to suspects. Stuff like, "well, you know your accomplices have confessed and said you were in on it. waddyahave to say for yourself?" Whether they have or not.

Frozen Sooner
4/25/2009, 04:33 PM
Under Jackson, if a perp lawyers-up, all questioning must cease. period.

I think that's a pretty good rule myself, 'cuz cops lie to suspects. Stuff like, "well, you know your accomplices have confessed and said you were in on it. waddyahave to say for yourself?" Whether they have or not.

See, that's what both Charles and I agree the rule is and should be. If the plaintiff starts volunteering information without further questioning, though, all bets are off, no?

99.98% of all...;)

I'm fairly disappointed that the administration is pushing for a reveral of Jackson.

John Kochtoston
4/25/2009, 05:03 PM
Heh. See what's sick is I LOVE this stuff.

Famous last words, good sir. :D

StoopTroup
4/25/2009, 05:13 PM
I must have been asleep when he came over to the house.

TUSooner
4/25/2009, 07:05 PM
I believe that even under Jackson, a statement is admissible if the suspect "blurts it out" even tho' the cops honor his right to a lawyer by not asking more questions. (I should know, but I'm not 100% sure.) The Constitution guarantees the right to remain silent, not the ability --- to borrow from somebody's stand-up comedy routine.

AlbqSooner
4/25/2009, 08:02 PM
Jackson should NOT be overruled IMHO. An "unsophisticated" citizen can easily misapprehend what his situation is when he is sitting handcuffed to a chair in a police department with anywhere from one to four cops feeding him a bunch of stuff to scare the bejeebers outta him. By "unsophisticated" I don't mean stump dumb, though some accuseds are. I mean someone who is in an unfamiliar setting being questioned by people who have much more training in interrogation than the accused.

A classic case out of Tulsa many years ago involved a jailer who was a lay preacher. He went to a guy suspected in a murder case and talked to him very "lovingly" and then asked if they should pray together. When the subject agreed, the jailer prayed for a period of time during which he asked God to give them some insight to the whereabouts of the missing victim so that she could have "a proper Christian burial". The accused began to cry and told them where to find the body.

That case was actually about the "Priest/penitent" privilege, but the types of things cops are trained to do to manipulate a confession from an accused who has previously requested a lawyer to advise him are highly effective techniques.

Bottom line, as I have said before many times, is that the FIRST thing they advise when reciting the Miranda warning is "You have the right to remain silent". I submit that the reason they recite that first is because it is the MOST important right you have. The right to an attorney can be a great help in getting an accused to retain the right to remain silent.

StoopTroup
4/25/2009, 09:51 PM
Judge Judy don't give a **** about your rights.

You better snap to in her Court cause it won't matter one bit...

King Crimson
4/25/2009, 09:53 PM
i'd be more impressed with all this protestation if "civil rights" hadn't just been discovered by some in the last 100 days.

where were we in 2003?

TUSooner
4/25/2009, 10:33 PM
i'd be more impressed with all this protestation if "civil rights" hadn't just been discovered by some in the last 100 days.

where were we in 2003?

Ain't that the truth. I didn't want to stir the pot, but it is amazing that Obama is "raping the Constitution" when the same anti-Jackson argument from a GOP prez would be lauded as "tough on crime and a needed check liberal on judicial activism."

King Crimson
4/25/2009, 10:41 PM
Ain't that the truth. I didn't want to stir the pot, but it is amazing that Obama is "raping the Constitution" when the same anti-Jackson argument from a GOP prez would be lauded as "tough on crime and a needed check liberal on judicial activism."

tru dat.

tommieharris91
4/25/2009, 10:41 PM
Ain't that the truth. I didn't want to stir the pot, but it is amazing that Obama is "raping the Constitution" when the same anti-Jackson argument from a GOP prez would be lauded as "tough on crime and a needed check liberal on judicial activism."

You'll like this. (http://www.scotusblog.com/wp/wp-content/uploads/2009/04/nacdl-et-al-4-14-09.pdf)

JLEW1818
4/25/2009, 11:11 PM
My issue is let people do as they please. If they break the law, crush them on it. I don't need anyone in this world to support me.

I'll take care of myself, others can do their thing. I don' really care.

If you end up poor, leave the country or get a job. aint hard.

Frozen Sooner
4/25/2009, 11:47 PM
Ain't that the truth. I didn't want to stir the pot, but it is amazing that Obama is "raping the Constitution" when the same anti-Jackson argument from a GOP prez would be lauded as "tough on crime and a needed check liberal on judicial activism."

Who said he was raping the Constitution?

Me, I'm not a fan of this no matter who's in office.

JLEW1818
4/26/2009, 12:12 AM
Don't break the law..........


If cops plant coke on you thats one thing!

SCOUT
4/26/2009, 12:17 AM
Don't break the law..........


If cops plant coke on you thats one thing!

I was always under the impression that the idea of having an attorney present was to reduce the likelihood of someone saying something stupid that could implicate themselves. That implication was just as likely to be someone who did nothing wrong.

I saw a presentation given by a former police investigator and his advice was to never talk to the Police. He said that nothing good can come from it. If you must say something, run it through an attorney.

JLEW1818
4/26/2009, 12:28 AM
I was always under the impression that the idea of having an attorney present was to reduce the likelihood of someone saying something stupid that could implicate themselves. That implication was just as likely to be someone who did nothing wrong.

I saw a presentation given by a former police investigator and his advice was to never talk to the Police. He said that nothing good can come from it. If you must say something, run it through an attorney.

True that. I'm never really in the situation to talk to cops, since i don't break the law. But if i were to break the law. I'd wait. B/c everything you say is recorded.

Very good point Scout

John Kochtoston
4/26/2009, 12:29 AM
I saw a presentation given by a former police investigator and his advice was to never talk to the Police. He said that nothing good can come from it. If you must say something, run it through an attorney.

Damn good advice.

Also, like Froz said, I'm not sure that anyone claimed Obama, and his Justice Dept., is raping the CotUS. I disagree with the stand he, and his Justice Dept. are taking regarding Sixth Amendment rights.

If Obama, Holder, etc. were raping the CotUS, they'd just ignore established SCOTUS precedent. Instead, they are, IMHO, using the correct channels to get their view legitimized, by advocating the SCOTUS overturn a case they disagree with.

the_ouskull
4/26/2009, 01:04 AM
See, that's what both Charles and I agree the rule is and should be. If the plaintiff starts volunteering information without further questioning, though, all bets are off, no?

99.98% of all...;)

I'm fairly disappointed that the administration is pushing for a reveral of Jackson.

Very few people in that situation just start volunteering information; the ones who do are generally not "career" criminals, who I could give a sh*t about protecting. (Which is one of the few reasons I haven't been able to justify joining youse guys in law school myself... so far...) I'm not worried about the LSAT... or the GRE, for that matter... but I think that I'd get TOO lost in all of that crap. It interests me, too. And, that interest, coupled with a bit more real-world experience than many aspiring magistrates, would probably serve me well.

...but then I'd feel icky.

the_ouskull

Frozen Sooner
4/26/2009, 01:06 AM
Very few people in that situation just start volunteering information; the ones who do are generally not "career" criminals, who I could give a sh*t about protecting. (Which is one of the few reasons I haven't been able to justify joining youse guys in law school myself... so far...) I'm not worried about the LSAT... or the GRE, for that matter... but I think that I'd get TOO lost in all of that crap. It interests me, too. And, that interest, coupled with a bit more real-world experience than many aspiring magistrates, would probably serve me well.

...but then I'd feel icky.

the_ouskull

We've both had sex with Phis.

We should all feel icky.

JLEW1818
4/26/2009, 01:10 AM
lol

Frozen Sooner
4/26/2009, 01:20 AM
lol

You're too young to know what the true glory of a Tephila Sunrise.

Sooneron knows what I'm talkin' about.

John Kochtoston
4/26/2009, 01:35 AM
You're too young to know what the true glory of a Tephila Sunrise.

Sooneron knows what I'm talkin' about.

You keep using this word. I do not think it means what you think it means. :D

Frozen Sooner
4/26/2009, 01:36 AM
What, you've never heard of a glory hole?

Same concept.

John Kochtoston
4/26/2009, 01:45 AM
What, you've never heard of a glory hole?

Same concept.

Thing about glory holes, is that they are anonymous. Not the neighbors across the street or down the block.

Crucifax Autumn
4/26/2009, 04:18 AM
you all like fish sticks!

Okla-homey
4/26/2009, 06:01 AM
BTW, did you guys hear the Supremes just reefed-in the scope of the automobile search incident to arrest?

You'll recall that previously, the cops could perform a warrantless "search incident to arrest" of a suspects car, ostensibly to find weapons the arrestee might access and use against the cop, even if the arrestee was already handcuffed facedown on the pavement.

That ended last week.

No warrantless searchy of car if perp already safely separated from it. The case is Arizona v. Gant. Mr Gant had been arrested for driving with a suspended license, and after he had been cuffed and stuffed in the back of the cop car, they searched his car and found coke in a jacket pocket left there.

http://www.supremecourtus.gov/opinions/08pdf/07-542.pdf

StoopTroup
4/26/2009, 11:16 AM
So if you have a lot of coke in your car when your pulled over...simply get out?

soonerloyal
4/26/2009, 11:26 AM
Too-funny stuff from peeps who turned their backs on Bush suspending Habeas Corpus.


http://i8.photobucket.com/albums/a14/KevAndLori/irony-kkk.jpg

John Kochtoston
4/26/2009, 12:03 PM
BTW, did you guys hear the Supremes just reefed-in the scope of the automobile search incident to arrest?

You'll recall that previously, the cops could perform a warrantless "search incident to arrest" of a suspects car, ostensibly to find weapons the arrestee might access and use against the cop, even if the arrestee was already handcuffed facedown on the pavement.

That ended last week.

No warrantless searchy of car if perp already safely separated from it. The case is Arizona v. Gant. Mr Gant had been arrested for driving with a suspended license, and after he had been cuffed and stuffed in the back of the cop car, they searched his car and found coke in a jacket pocket left there.

http://www.supremecourtus.gov/opinions/08pdf/07-542.pdf

I like the decision, but I'm afraid it's just going to lead to more arrests of "suspicious people" for broken tail lights, and towing of cars for "inventory searches."

Okla-homey
4/26/2009, 04:35 PM
So if you have a lot of coke in your car when your pulled over...simply get out?

That might buy you a little time. That said, no warrant needed for a dope dog sniff, and if Fido alerts, no warrant needed for a seach because then they have the all-important probable cause to search the vee-hickle.:D

Frozen Sooner
4/26/2009, 04:59 PM
Better to just snort it. They can't charge you with intent to distribute then.

Okla-homey
4/26/2009, 05:22 PM
Better to just snort it. They can't charge you with intent to distribute then.

better yet: DON'T BREAK THE @#%*?$ LAW IN THE FIRST PLACE THERE DILLINGER!

Frozen Sooner
4/26/2009, 07:07 PM
Let's not be silly here. Sometimes you just have to be carrying around a brick of Peruvian.

I mean, as long as we're giving people advice on how to avoid a search when they have drugs on 'em, might as well tell him how to avoid the distribution charge.

Plus, you ever see a cop give a sobriety test to someone all whacked out on coke? That's good comedy there.

TUSooner
4/27/2009, 09:42 AM
Who said he was raping the Constitution?

Me, I'm not a fan of this no matter who's in office.

I was using hyperbole; I figured that was SOP around here. :D
I'm not a fan of overruling Jackson, either. But I had to take a jab at what I perceive to be hypocrisy among some of our more conservative fellow posters.

TUSooner
4/27/2009, 09:45 AM
You'll like this. (http://www.scotusblog.com/wp/wp-content/uploads/2009/04/nacdl-et-al-4-14-09.pdf)

I read briefs all day. I'm not going to waste my goof off time reading more of 'em! :D