You Have the Right to Remain Innocent

You Have the Right to Remain Innocent
© 2016 James Duane
152 pages

"One of the Fifth amendment's basic functions is to protect innocent men who otherwise might be ensared by ambigous circumstances." (Ohio v. Reiner)

"People are inherently honest, and that's their biggest downfall." - Officer George Bruch

It is perfectly possible for good and innocent people to lose decades of their lives languishing in prison because a stray word ensnared them in the criminal justice machine.  Like clothes and hair in a factory setting, both of which  must be securely fastened to avoid a nasty accident, words must be guarded in the presence of a police officer or a federal agent -- especially the latter.  In You Have the Right to Remain Innocent, legal professor and defense attorney  James Duane expands a captivating lecture he gave some years ago into a case for keeping mum.

Long gone are the days when an individual's conscience was a good rule-of-thumb guide to ward one away from criminal behavior.  Assaulting people,  invading their homes destroying or stealing goods -- all these are moral norms that everyone  is aware of and can avoid transgressing.  Today, though, writes Duane, the US criminal code expands with such rapidity that not even defense attorneys who are paid to stay conversant with it can keep pace -- in part because not all criminal infractions are contained within the criminal code. Many are the spawn of regulatory agencies, who instead of merely fining citizens for  running afoul of a policy they had no idea even existed,  tar them with the same brush as a rapist or bank robber: criminal.     (Hence the title of a book edited in 2004 by Gene Healy: Go Directly to Jail: the Criminalization of Everything)

Innocent people can be hooked and booked for legitimate offenses they had no association with, only because they were too eager to share information with investigating officials who use every tidbit they can to try and fill in the blanks of a crime.   Duane cites many examples: , but  in one instance a man who was brought in denied being on a given street at a specified time. Of course, he added, he had a girlfriend on that street previously, but he wasn't OVER there.  That little detail, unsolicited and useless for him to share with the police, was used as part of case to damn him.  If a person attempting to remember facts makes a mistake,  innocent hiccoughs of memory will be spun as willful deceit.  Police interviewers may also unknowingly manipulate innocent people into confessing by strongly implying that they're doomed anyway, but a confession will ease the consequences. Detectives and judges can be perfectly conscientious -- utterly moral, veritable knights in shining Armani suits. -- and still make mistakes.  Even if a case is appealed, someone who is drawn into the system will lose years of their lives and considerable money.

Unfortunately, minimizing one's profile isn't as simple as pleading the Fifth, because the Gang of Nine, in its infinite wisdom, has decreed that overtly invoking the Fifth Amendment can be used as evidence of guilt.  (Another marvelous bit of judicial wisdom: recently a court decreed that cops breaking and entering to execute a warrant can shoot the house dog if it 'barks or moves'.)  In response, Duane advises readers rely on other parts of the Bill of Rights: by all means, don't volunteer information and decline to answer questions beyond one's name -- but employing the Sixth amendment, the right to an attorney, is a more reliable shield against a black-robed inquisition.

This briefing in avoiding justice jihads is short, to the point, amply referenced, and.well organized   I watched his lecture in 2010 and have since viewed it several times, along with its companion talk by a seasoned detective, who shares the various ways well-meaning cops can elicit confessions from even the innocent. (One of his favorite tricks: bringing in a recorder into an interview room, and then visibly 'turning it off' to coax the suspect into being more forthcoming -- not knowing that there is no off the record, because the room has other recording equipment!)

A must-read for any American -- there's more to the Bill of Rights than the first two!

Related:

• Don't Talk to the Police, James Duane &Office George Bruch. Warning: Duane talks fast.  There's an updated version of the speech also available, "You Have the Right to Remain Innocent".
• Go Directly to Jail -- the Criminalization of Everything, ed. Gene Healy. I read this earlier in the year and will revisit it.
• Busted: the Citizen's Guide to Surviving Police Encounters.  Civil liberties program with dramatized scenes.  Revised and released as 10 Rules for Dealing with the Police. 

Rise of the Warrior Cop

Rise of the Warrior Cop: the Militarization of America's Police Forces
© 2013 Radney Balko
400 pages

A man's home is his castle...but now the cops have bettering rams.. Among the sins of George the III, according to the Declaration, was his practice of keeping a standing army.  Militias might be raised to defend against outside invasion, but they dispersed upon peacetime; standing peacetime armies were regarded always the weapons of tyrants. In Warrior Cop,  author argues that the nation’s civil police forces have been turned into a standing army, beginning in the 1970s after the Watts Riots but even more quickly in the 9/11 era.    Police violence has been especially notorious in the last year, but the recent spate of deaths is not an anamoly. As Warrior Cops indicates, not only have police forces assumed a more militaristic attitude in recent decades, but they now come armed with the army’s weapons.

In setting up his argument, Balko gives a brief history of law enforcement in the United States which expands in the mid-20^th century, during a rising crime wave that put stress on the government to “do something”.  Law and order rose to become a mainstay, with liberals arguing for social programs that would combat poverty and reform criminals, and conservatives advocating  stern enforcement and prison expansion.  The latter approach met with more popular support, but few could predict what Nixon’s approach would result in. Balko details several problems that would arise in the decades to follow: first, the excessive formation and use of SWAT teams, initially devise to deal with extraordinary situations beyond the means of beat cops.   This initially meant high-powered rifles, but it wasn’t long before SWAT officers were lobbing grenades into private homes.  At the same time as they were using more brutal weapons, they were deployed for mundane ends, like serving arrest warrants. This stemmed from a use-it-or-lose-it mentality: if cities couldn’t point to any recent uses of  the team’s training and equipment, how could it justify further expenses to the public?  

Fortunately for them, that problem soon fell away when D.C. initiated programs that would funnel money to purchase arms, and equipment itself, to the cities.  This made it easier for local law enforcement agencies to purchase military  surplus, from the practical to the insane: one California city attempted to requisition a submarine.  Even as the wall keeping civil and military uses of force crumbled, the legal walls protecting citizens from illicit police force vanished together: warrantless raids and arrests skyrocketed after 9/11, leading to tragedy after tragedy.  Although advocates for “no-knock raids” maintained that they prevented intended arrests from destroying evidence and scampering away, the sudden and violent invasion of homes by  masked men screaming obscenities was time and again met with alarm, confusion, and legitimate attempts at defense that led to slaughter, especially tragic given how many times SWAT teams invaded the wrong house. Still worse, in the modern age new Federal programs helping military officers transition into the police force, or programs training police for anti-terrorist programs, mold the law enforcement mind in the pattern of  search-and-destroy soldiers.

Despite all of this, Balko sees some meager grounds for hope.  Legal objections to no-knock raids and police employed military equipment have for the most part fallen away, but in the light of widespread videography by citizens,   abuses are much more publicized -- and some parts of the war on drugs are finally losing support.  By way of offering grounds of hope, Balko looks at efforts at reintroducing community policing, in which police officers build relationships with the communities they patrol (preferably on foot) and create solutions that don't involve ramming down doors and rushing in with MP-5s at the ready. This is a profoundly disturbing book, but worth any American's attention, especially in light of the recent deaths at the hands of policemen in Balitmore and New York.

Nullification

Nullification: How to Resist Federal Tyranny in the 21st Century
© 2011 Thomas E. Woods, Jr
309 pages

In a game of word association, chances are that 'nullification' would not meet with flattering replies. Nullification is a word associated with the Civil War, or the Civil Rights movement, of the southern states blocking attempts at racial equality by insisting on their own right to declare a federal law unconstitutional, and thus null and void. But nullification has a richer and nobler history than its modern critics realize; in Nullification,  Tom Woods explains the legal basis of the principle, demonstrates its use throughout early American history, and points out areas in which the states have adopted it as a tool today.

Nullification's sanction, Woods argues, rests in the little-c constitution of the United States. Though today the fifty states may seem like mere departments of the national polity, in the beginning this was not so. The united States began life not as a nation, but an agreement between thirteen, and with specific purposes. Treaties from the period enumerate the individual states, demonstrating their primacy. If not the States, who may declare a given law unconstitutional? The Supreme Court has assumed that role ('judicial review'), but as part of the government, how can it be expected to police itself?  The individual States, however, have existence without the national government, and it exists, or was supposed to have existed, as their handmaiden -- not the other way around. Theirs is the right to declare the actions of Congress, the President, and the Court unconstitutional -- but theirs is likewise the responsibility to create measures for frustrating the government's knavish tricks.

This they have done, from as early as the Adams presidency til today. Nullification first came onto the scene after the Federalist congress put into effect the Alien and Sedition Acts, which made defaming the government and its officials a crime. (Defaming the government was, until the rise of baseball, the national sport, and especially loved by Jefferson, Hamilton, and their respective parties.) Straightaway governors began throwing up barriers to federal agents attempting to arrest mouthy citizens. They did the same when, during the Napoleonic Wars, President Jefferson imposed an embargo on Europe -- an embargo that might have driven American trade to its knees. The reality and the threat of nullification continued to force the hands of overambitious executives. Today, legislative sabotage continues as states decriminalize marijuana use even as the federal  government continues to insist it's a no-no.   Given that the US attorney general is now retreating from parts of the War on Drugs (starting with that odd habit of theirs of seizing  property that has been declared guilty of participating in a crime), the principle seems just as potent.

Nullification is a small book (~165 pages, not counting the documents appended to it), but is a very worthy introduction to compact theory, in which the States are legally superior and not subordinate to the national state. It's also a respectable attempt to rescue nullification from its historical taint, but loses some points given that Woods never squarely addresses the threatened use of it during the 1960s, maintaining only that nullification is a weapon that can be used unjustly as easily as it can be for justice.  I was also hoping for other kinds of nullification to be covered (like jury nullification), but Woods focused only on formal measures by the States themselves.  Altogether it's a solid intro to the subject, and I am all for throwing wrenches into the machinery.


Related:
The Liberty Amendments, Mark Levin,  all of which aim to restore to the fifty states their original power over the central government.

The Liberty Amendments

The Liberty Amendments:  Restoring the American Republic
© 2013 Mark Levin
257 pages

The United States Constitution was written by men who appreciated their lack of omniscience, and who therefore included in Article V means for amending their handiwork, for fixing through Congress and the state legislatures any problems that might arise. How do you solve a problem through Congress, however, when Congress is the problem?   The solution, says Mark Levin, is right there in the Constitution: Article V, which establishes the means of amendment, provides two. While Congress can vote on amendments, the State Legislatures can independently  call a convention to propose amendments, amendments Congress is obliged to respect.

With that as a starting point, he introduces ten amendments intended to bring the metastasizing national government into hand. The amendments taken as a whole are strongly sympathetic to a states' rights perspective, as all three heads of the Scylla-like national government are subordinated further to the state legislatures. The legislatures are given the power to override Supreme Court decisions and acts of Congress, and  term limits are imposed on all branches, including on the formerly lifetime Court seats.  Levin's amendments make it clear that he believes sovereignty lies in the states alone. as he proposes measures intended to stifle the effort of the government to take a life of its own. The Supreme Court is denied a right it has assumed, that of judicial review (judging whether a law is constitutional), and federal programs are given an automatic expiration date that they escape only by submitting to a scrutionous review.  Most of the amendments are general and limited, with Levin arguing from what he believes the founders would have intended or believed; he draws on the Federalist papers, the anti-federalist papers, and the founding fathers' letters to inform his views. The exception to this is the tenth proposal, which requires photo ID for elections. This is so specific to current political arguments and current technology that it doesn't deserve the dignity of being attached to the Constitution: let it join the legions of acts of Congress.

As personally sympathetic as I am to any measure limiting the power of the state, and hostile to any measure intended to magnify its power,  something about this book doesn't sit right with me. Levin speaks often about the founders' firm belief in checks and balances, but his proposals put so many cards in the hands of the state legislatures something is bound to go wrong. The state legislatures are not havens of sensibility and justice; my own state has a constitution written by planters to disenfranchise the poor, place the burden of public finance on them, and force local ballot measures to be resolved by means of constitutional amendment.  On the other hand, perhaps we'd end up with something like Swiss cantons; that kind of dynamic localism is attractive.  My principle problem with Levin is that he doesn't bother with a dialogue but writes to people who already agree with him as he presents his case against the dreaded Statists, the Evil Ones.  I don't know if Levin's approach is the answer, but it's not mere talk: in late December, state legislatures sent representatives to George Washington's Virginia home in Mount Vernon to discuss the possibility of an "Article V Convention".   Thus, while Levin's amendments aren't necessarily ones I'd get behind in total (with the exception of term limits),  his basic premise of states using their article V right to discipline Congress, the Court, and the President has promise.