Mediaboss Marketing

As Eugene noted, a divided panel of the Ninth Circuit recently held that a child pornography conviction had to be reversed because the evidence was gathered in violation of the Posse Comitatus Act. Steve Vladeck has a post discussing the important and potentially certworthy issue in the case, which is whether a violation of that statute can trigger the exclusionary rule at all.

I confess that my initial reaction was skepticism. Consider Sanchez-Llamas v. Oregon:

We have applied the exclusionary rule primarily to deter constitutional violations. [In t]he few cases in which we have suppressed evidence for statutory violations the excluded evidence arose directly out of statutory violations that implicated important Fourth and Fifth Amendment interests.

Maybe the Posse Comitatus Act can be shown to implicate important Fourth and Fifth Amendment interests, but the Ninth Circuit didnt really show that, and it isnt obvious to me.

More generally, it seems to me that current exclusionary rule doctrine can be read in a couple of different ways:

One is the deterrence theory: Exclusion is appropriate when it seems like theres intentional and/or widespread and/or generally problematic illegality by the government. This refrain appears in a bunch of the cases, and its how the Ninth Circuit framed the analysis. Its not clear, however, that the analysis automatically applies in statutory cases (see above).

A second is the slow destruction theory: Under this theory, the exclusionary rule is unfounded and deleterious, and the rule and its works should be slowly destroyed. Some people read the Courts exclusionary rule precedents to be implicitly working toward this theory. It is not really put forward by the Court as a first-order justification, although quite a few of the opinions do frame their analysis by questioning the rules basis or justification.

Until recently, I would have ended this list there. But I have recently begun to give some credence to a third account of exclusionary rule doctrine put forward by my friend Richard Re in an article called The Due Process Exclusionary Rule.

Richard argues that today many searches and seizures should be seen as part of the criminal process and that the exclusionary rule is thus justified by the Due Process Clause, which forbids a conviction obtained through illegal process. While I am not yet sure that I agree with this view, I think it deserves serious consideration, and is the best alternative to the slow destruction theory that is on offer.

Here is what the article says about statutory violations (footnotes omitted):

Visit link:
Volokh Conspiracy: What the posse comitatus case might mean for the future of the exclusionary rule

A school official, this one the superintendent in Litchfield, is not having his contract renewed by the school board. Why? The school board, officially, won't say.

"I can't disclose or discuss the contents of the board's discussion, or the rationale behind the vote," said school board chairman Dennis Miller, sounding very much like someone pleading the Fifth Amendment before Congress

Chairman Miller and a majority of the board have decided this is a "personnel matter" and therefore not for the public's ears.

Well, of course it is a personnel matter. But it involves a public employee, paid for with taxpayer dollars and not only responsible to the citizens of the school district, but in charge of the district.

Yet again, we have a case where elected officials, acting on the public's behalf, refuse to tell the public the reason for their actions. Such cases are happening too frequently.

The public has limited, but powerful, recourse. It can decide not to renew the employment "contracts" of school board members.

Some argue that they are elected to represent the public, which needs to just trust their judgment. But without knowing their reasoning for such important decisions as the hiring or firing of key personnel, how is that judgment to be assessed?

To his credit, board member John York, one of the two board members who opposed not renewing the contract, said it was more personality than anything else.

Supt. Brian Cochrane also spoke out to the Union Leader. And the world, surprise, didn't end.

The public doesn't need great specificity or gory details in such cases. But officials like Miller who won't explain their actions either don't care to take the time to do so or they really don't have a strong case in the first place.

Continued here:
Public be damned Litchfield latest example

Invoking your Fifth Amendment rights is a sign of guilt, according to one Florida police officer.

TechDirt.com reports that one of its readers recently sent the website a video (below) of two people filming an area where prisoners are taken in and out of the Duval County courthouse in Jacksonville, Florida.

This area is known as a "sally port," and is in full view of a public sidewalk where the cameramen were filming from.

However, two officers from the Jacksonville Sheriffs Office recently tried to stop the men from filming.

In the video, one of the officers tells the cameramen this is a "secure area" and asks why they are filming.

One cameraman says, "I am filming in a public space.

The officer then wants to know the cameraman's name and why he refuses to tell him (the officer) why he is filming.

According to TheFreeThoughtProject.com, when the cameraman says he wants to "remain silent," the police officer appears to laugh and says, "You must be doing something wrong if you invoke your rights."

The officer then doubles down on his bizarre claim and refuses to show the cameraman the statute that bans people from filming prisoners entering and leaving the sally port.

Eventually, the officers leave the scene and allow the men to film.

Read the original here:
Cop Says 'You Must Be Doing Something Wrong if You Invoke Your Rights' (Video)

September 9, 2014 4:45 PM Share with others:

By Torsten Ove / Pittsburgh Post-Gazette

A federal appeals court today overturned the conviction of a Texas man on drug charges, saying the government violated his Fifth Amendment right against self-incrimination during his trial here.

Gathon Shannon, 48, of Houston, described by the U.S. Drug Enforcement Administration as a courier in a Texas-to-Beaver County cocaine ring, was convicted by a federal jury and sentenced in 2013 to 20 years.

But a three-judge panel of the U.S. 3rd Circuit Court of Appeals today ruled that the prosecution violated his rights in cross-examining him about his silence following his arrest in 2011.

The circuit judges vacated the sentence imposed by U.S. District Judge Alan Bloch and ordered that Mr. Shannon receive a new trial.

Mr. Shannon was among a group of accused conspirators targeted by the U.S. attorney's Organized Crime and Drug Enforcement Task Force, which said the ring supplied much of Beaver County's cocaine demand from 2009 to 2011.

Continued here:
Texas man's conviction overturned because of Fifth Amendment violation

The Kansas Supreme Court has upheld a Wyandotte County district court's dismissal of indictments against an attorney for the Board of Public Utilities of Kansas City, Kan.

The high court overturned a Court of Appeals reversal, agreeing with the district court that Robert Turner's constitutional right against self-incrimination had been violated during the grand jury proceedings.

A citizen-called grand jury in 2008 indicted Turner on two counts of theft and 55 counts of presenting a false claim, which was based on nonitemized vouchers totaling about $400,000 he submitted for work he did for BPU.

The grand jury had been called to look into allegations of misappropriation of public funds by directors of BPU, an arm of the Unified Government of Wyandotte County.

It was during testimony before the grand jury that William Delaney a special agent of the Kansas Bureau of Investigation who was assigned to serve as the investigator for the grand jury made repeated suggestions that Turner was somehow involved in the 1989 unsolved murder of Chuck Thompson, a Kansas City, Kan., politician and lawyer.

Delaney told jurors he had been investigating the case for years, and that he would be asking questions of people he thought were involved during the BPU probe.

The grand jury subpoenaed Turner, who gave notice in advance that he would invoke his Fifth Amendment right against self-incrimination. Delaney questioned him anyway, asking questions related not just to the BPU probe but also the Thompson murder. Turner, court records show, addressed about 100 or more questions by invoking his right against self-incrimination.

The district court, on appeal, ruled that Delaney's continual leading questioning and remarks to jurors suggesting that Turner's silence meant he had something to hide were prejudicial to Turner, and dismissed the indictments.

The Court of Appeals overturned the decision, saying a person can be compelled to appear before a grand jury and be asked questions to which he can invoke constitutional protections on a question-by-question basis. The appeals court said Turner had not demonstrated that he was prejudiced by Delaney's methods.

The Supreme Court disagreed.

Go here to read the rest:
Kansas Supreme Court: Grand jury violated man's Fifth Amendment rights