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Next week, the Supreme Court will hear argument in Vega v. Tekoh, a case about Miranda rights. I flagged a super-interesting historian's amicus brief in the case last week, and I wanted to offer some broader thoughts. I plan to break down my thoughts into a few posts. In this post, I wanted to start with the first question in Tekoh as a matter of precedent. If you take the Court's seriously, which way do the cases take you?

You'll recall, from my prior post, that this is the case asking if a plaintiff has a civil remedy against an officer under 42 U.S.C. 1983 for obtaining a statement inadmissible under Miranda that was later admitted. The case raises two issues. First, is a civil remedy available in such circumstances? Second, who can be sued if this happens?

In this post, I want to explain why I think that, as a matter of precedent, the Ninth Circuit got it right. Under the Court's caselaw, the wrongful admission of a statement made in violation of Miranda violates a person's Fifth Amendment rights and should be actionable under 42 U.S.C. 1983. In future posts, I hope to take on other aspects of the case, such as the causation question.

On to the analysis. As a matter of precedent, it seems to me that the first question has a clear answer that was provided correctly in Judge Eric Miller's typically excellent opinion for the Ninth Circuit below. The logical chain runs like this:

Put those three steps together, and there's a constitutional cause of action for a wrongful admission of a statement.

As I understand the officer's argument, especially in the newly-filed reply brief, the main counter is to challenge point 2, that Miranda is a constitutional rule. At least, sort of. Vega treats Miranda as both a constitutional decision and not part of the constitution at all. Miranda is a constitutional decision in the sense that Dickerson said it was, and it applied in Dickerson, which involved a motion to suppress. But Miranda is not part of the constitution at all other than that, in the officer's view, because there are a lot of decisions, especially pre-Dickerson, calling Miranda "prophylactic."

In Vega's view, a "prophylactic" rule is assumed to be a rule that isn't actually part of the constitution at all, as compared to a rule required by the constitution to protect the underlying constitutional right. So you end up, in Vega's telling, with Miranda being both a constitutional decision and not part of the constitution at the same time. Miranda ends up as a rule of evidence for constitutional purposes, but not something that can support a civil suit for constitutional purposes.

To me this seems a pretty odd position. It's constitutional law as quantum physics: Miranda becomes like light, which is both a wave and a particle. Of course, I get the subtext. If the current Supreme Court had decided Dickerson anew, a majority of the current Court very well might have gone the other way and said Miranda was merely a supervisory powers case that can be nullified by legislation. As a tactical matter, then, an argument that doesn't make much sense here might very well work: If you don't think Miranda was on solid ground, then maybe a weird argument that limits it is more appealing than a good argument that doesn't. So I get that.

But as a matter of precedent, it seems to me that Dickerson said what Dickerson said. Unless you want to overturn Dickerson, which Vega isn't asking the Court to do, you have to treat it as the constitutional decision it said it was. And it seems to me that Dickerson ultimately rejected the underlying premises of Vega's argument, and a lot of what Vega is arguing was settled the other way by Dickerson.

Vega presents a different picture, of course. Vega tries to make post-Dickerson caselaw look inconsistent with the natural reading of Dickerson. For example, Vega suggests that the Court treated Miranda as "prophylactic" even after Dickerson in cases like Chavez and Patane. Putting aside the debate over just what "prophylactic" means (and here's a very good article by David Strauss on how useless a term that is), I don't think it's right to suggest that the Court treated Miranda rules as not part of the Fifth Amendment after Dickerson.

Here's what happened, it seems to me. Following Dickerson, Justices Thomas and Scalia, the two Dickerson dissenters, continued writing Miranda opinions using the basic framing of their Dickerson dissent. In some of the cases, there were five votes for the results Justices Thomas and Scalia reached. Presumably, Chief Justice Rehnquist assigned Justice Thomas to try to write the majority opinion in those cases. But Justice Thomas didn't get a majority. So he ended up wring a plurality opinion in Patane, joined by Rehnquist and Scalia, as well as a judgment of the Court in Chavez joined in relevant part only by Rehnquist.

Vega's reply brief relies a lot on those Thomas opinions. They get treated as authoritative guides to the true meaning of Dickerson, and thus the true meaning of Miranda. But from the standpoint of precedent, it seems to me, they're just the views of three Justices that didn't command a majority of the Court. And given that their language often echoes the Dickerson dissent, they seem like puzzling guides to understand the majority opinion in Dickerson.

In his reply brief, Vega suggests that the fact that Chief Justice Rehnquist signed to to these opinions post-Dickerson is meaningful because, although Justices Scalia and Thomas dissented in Dickerson, Chief Justice Rehnquist wrote the Dickerson majority opinion."Any doubt about what the Court meant in Dickerson is resolved," Vega says, "by how its authorChief Justice Rehnquistsubsequently treated Miranda in Chavez." By joining the opinion in Chavez that said Miranda was prophylactic, Vega says, Rehnquist must have signaled the true meaning of Dickerson: "There is no reason to credit Tekoh's interpretation of Dickerson over Chief Justice Rehnquist's."

But c'mon. Majority opinions of the Supreme Court are not the property of their individual authors. They do not have secret meanings later uncovered by what their authors individually later said or signed on to. The opinions have to stand on their own. That's particularly relevant here given that claims have been made that Chief Justice Rehnquist didn't really mean what he said in Dickerson. I don't know if that accusation is true. But whether it is true or false, Rehnquist's later actions can't somehow undo what the Opinion of the Court he authored in Dickerson actually said or means.

If you take precedent seriously, it seems to me, Dickerson answered the first question of Tekoh in Tekoh's favor.

Full disclosure: I have previously discussed this case with counsel for Tekoh, although of course all views here are entirely my own.

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Thoughts on Vega v. Tekoh, the Pending Miranda Case Before SCOTUS: The Precedent Question - Reason

SHREVEPORT, La. (KTAL/KMSS) A former co-defendant of the two men on trial for second-degree murder and conspiracy to commit second-degree murder in the death of Shreveport Police Officer Chatri Payne refused to testify Thursday when called to the stand.

Lawrence Pierre, 24, was originally scheduled to go on trial with co-defendants, 29-year-old Travion Anderson and 41-year-old Glenn Frierson, but on the morning the trial was set to begin, he pleaded guilty. In exchange, the prosecution dismissed the conspiracy to commit murder charge.

Pierre was then taken to jail, and the trial for his former co-defendants began. Since the trial began, however, the prosecution has presented as much evidence against Pierre as it has against Anderson, who lived with Payne and their 2-year-old daughter in the home at 1633 Midway where Payne was shot and mortally wounded in January 2019.

Very little evidence has been presented against Frierson, Paynes cousin, who it is believed dropped off Pierre on a nearby street just before Payne was shot and picked up Pierre shortly after the shooting.

Pierre was subpoenaed by the state and by both defense attorneys, but it was not until Thursday Day 9 of the trial that he was called to testify.

Throughout the trial, defense attorneys have expressed a desire to question Frierson, and his non-presence in the proceedings has left a huge gap because, for more than three years, the prosecution has been building a case around three co-defendants.

Before the jury was brought in, Pierre, wearing the black and white stripes of a convicted murderer, leg irons, shackles, and handcuffs attached to a wide brown belt, shuffled in, accompanied by a CPSO deputy.

As Pierre took a seat in the witness chair between the jury box and Judge John Mosely. His former defense attorney in the murder case, Edward Mouton, stood between Pierre and Judge John Mosely on the bench.

Mouton announced to the court that, contrary to media reports, Pierre did not agree to testify and would take the Fifth Amendment if he was asked questions.

He will fight, he will not cooperate, Mouton said.

Prosecutor Ron Stamps disagreed and said he would dismiss any charges that might be pending against Pierre as a result of his testimony, adding that it was not Moutons place to answer for Pierre.

Mouton again argued in favor of the Fifth Amendment and again Stamps said, It is our position that he does not have the right to invoke the Fifth Amendment. At that point, Mosely agreed, telling Pierre and Mouton that the Court agrees, the defendant does not have Fifth Amendment rights.

Andersons attorney, John Bokenfohr, chimed in his agreement, calling Pierres refusal to cooperate outrageous.

After the jury was led in and Stamps began questioning Pierre, he was defiant, refusing to answer questions pulled from his own guilty plea, answering each time, I prefer not to answer, as Mouton stood by his side, watching.

And each time Pierre answered, I prefer not to answer, Mosely jumped in saying, You have no Fifth Amendment rights.

Still, Pierre repeated to the judge, I prefer not to answer.

After Stamps gave up and tendered Pierre to the defense attorneys, Pierre gave the same response to Bokenfohrs questions, which was followed by a reminder from the judge that he had no Fifth Amendment rights, to which Pierre again gave his I prefer not to answer response.

When Friersons attorney, Mary Harried, took the stand, she asked Pierre several questions regarding past statements by Pierre that Frierson, his cousin, had nothing to do with Paynes death; that Frierson did not know when he dropped off Pierre that he was going to the home where Payne was killed a few minutes later, nor was he aware what had happened when he picked up Pierre on another street after Payne was shot.

Again, to every question, Pierre answered, I prefer not to answer, and again Mosely told him he had no First Amendment rights.

Harried eventually grew weary of the situation and gave up.

Pierre was taken back to jail, where he is serving life in prison without the possibility of parole, or suspension of sentence, and court was adjourned until Monday morning.

See original here:
Former co-defendant defies judges orders to testify in cop slaying trial - KTALnews.com

Since the January 6 committee was formed last July to investigate the events surrounding the attack on the Capitol, a not-insignificant number of Donald Trumps allies have refused to cooperate, deciding theyd rather risk being charged with contempt of Congress than provide information that would undoubtedly cast the former president in a negative light. Two people who have surprisingly not followed that trend? His son-in-law and his daughter, the latter of whom spent a large chunk of time chatting with the committee last week.

Yes, following in Jared Kushners footsteps, Ivanka Trump reportedly spent nearly eight hours voluntarily testifying before the House select committee on Tuesday. While its unclear what the former first daughter told investigators, committee vice chair Liz Cheney said on Sunday that Ivankas testimony was helpful, during an interview in which the Wyoming representative, who has been castigated by her follow Republicans for speaking out against the 45th president, also said that it was absolutely clear that Trump knew his actions were unlawful but did it anyway. As The New Republic notes, eight hours is a lot of time for probing questions and answers, and Ivanka has unique insight into what her father was up to on January 6, as well as the days leading up to it. The committee presumably now knows what she was willing to share.

While Kushnerwho provided valuable information during his seven-plus hours of testimony late last month, according to committee member Elaine Luriawas traveling on the day of the actual attack, Ivanka was not only in the White House but reportedly pressed her father to stop the violence on at least two occasions. In a letter sent to the former first daughter in January, the committeewrotethat she was in the Oval Office during a phone call between her father and Mike Pence on the morning of January 6, when the then president reportedly accused his V.P. of not having the courage to block the certification of Bidens win. In testimony before the panel, Keith Kellogg, a retired lieutenant general who served as Pences national security adviser, said that after the president claimed Pence wasnt tough enough to overturn the results, Ivanka countered that Mike Pence is a good man. (For her part, Ivanka tweeted, the violence must stop, during the riot. She also initiallyaddressedthe people attacking the Capitol as American patriots, so there's that.)

Obviously, theres no reason to believe that Ivanka would give the committee the kind of information that could lead to her father, say, going to prison, but her and Kushners willingness to speak with the panel and not invoke their Fifth Amendment rights is notable. Theres also the matter of a CNN report from June alleging that a chilliness had developed between the couple and the ex-president, supposedly, in part, over the couples annoyance that he wouldnt shut up about the 2020 election. The other thing thats important to remember is that Jared and Ivankas go-to move while working in the administration was to literallyflee the sceneany time there was blowback over Trump doing something particularly bad, even for him, in the obvious hope people would forget they were senior advisers to the president. So if telling the committee what they knoweven if it hurt Ivankas dear old dadwould help them? Well that seems like something theyd be happy to do.

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Ivanka Trump Provided Helpful Testimony to the 1/6 Committee Investigating Her Father - Vanity Fair

WASHINGTON Newly revealed text messages published by CNN show a timely dialogue between Utah Sen. Mike Lee and former White House chief of staff Mark Meadows following President Bidens election victory in November 2020.

On November 7, the day Biden was officially declared the winner, Lee sent Meadows a message that he wanted former President Donald Trump to see:

Dear Mr. President, We the undersigned offer our unequivocal support for you to exhaust every legal and constitutional remedy at your disposal to restore Americans faith in our elections. This fight is about much more than just this election. This fight is about the fundamental fairness and integrity of our election system. The nation is depending upon your continued resolve. Stay strong and keep fighting Mr. President.

The statement was cosigned by several prominent conservative groups.

In separate messages that day, Lee said they were not issuing it as a press release but added use it however you deem appropriate.

In addition, he said, if its helpful to you for you to leak it, feel free to do so.

To which Meadows replied ??

Lee then began a lobbying effort to get attorney Sidney Powell in front of Trump. Lee called Powell a straight shooter.

Powell gained national prominence following a Nov. 19 press conference with other members of Trumps legal team, chiefly Rudy Giuliani.

Hours after the news conference, Lee texted Meadows saying he was worried about the Powell press conference. Adding that the potential defamation liability for the president is significant here and that the president should probably disassociate.

Meadows replied that he was also very concerned.

In late November, Lee then began a campaign to promote right-wing lawyer John Eastman, who had a plan that involved sending different electors in states that Biden won.

Lee previously told Washington Post veterans Bob Woodward and Robert Costa that he didnt know of the Eastman plan until January.

In a Dec. 8 text, he shot Meadows an idea:If a very small handful of states were to have their legislatures appoint alternative slates of delegates, there could be a plan.

Eastman recently invoked his Fifth Amendment rights when questioned about communications by the House committee investigating the Jan. 6 attack on the U.S. Capitol.

On Dec. 16, Lee appeared to ease on the idea of overturning the election results, saying in messages to Meadows:If you want senators to object, we need to hear from you on that ideally getting some guidance on what arguments to raise. I think were now passed the point where we can expect anyone will do it without some direction and a strong evidentiary argument.

On Jan 3., Lee said he had grave concerns about how aggressive Texas Sen. Ted Cruz was being in the fight over the results.

He told Meadows that Trump has a legit shot at 2024, and warned of the developments harming his future prospects.

At a rally on Jan. 4, Trump told the crowd that he was a little angry at Lee after the Utah senator officially came out against the efforts.

Lee later vented to Meadows:Ive been spending 14 hours a day for the last week trying to unravel this for him. To have him take a shot at me like that in such a public setting without even asking me about it is pretty discouraging.

Two days later:

See the original post:
New text messages reveal Mike Lees efforts to overturn the 2020 election in Trumps favor - TownLift

FORT WALTON BEACH, FL Our Crisis in Corrections series continues with the story of a former Florida prisoner who's now paralyzed after being beaten by corrections officers.

The I-Team learned that while the state has paid out $4.65 million tax dollars to settle the case, the officers believed to be responsible for having beaten Cheryl Weimer have yet to face criminal charges, nearly three years later.

We traveled more than 400 miles to visit Weimar in Ft. Walton Beach at one of the few facilities in Florida that can provide for her extensive needs and accepts convicted felons.

Weimar appreciates the little things, like a few minutes of fresh air in a park, away from her nursing home.

This is a blessing, Weimar said when we met her.

She hopes by speaking out, she may help prevent other incarcerated individuals from suffering at the hands of corrections officers.

'Its like someone took an ax and went right through me'

The day we met was our fourth planned interview. The others were canceled when the 53-year-olds fragile health failed. Shes been hospitalized seven times in six months.

But that day, she enjoyed her favorite meal, a Big Mac.

This hamburger is so delicious," Weimar said. "Do you see the cheese and the lettuce?

Her care manager, registered nurse, Gina Arsenault, fed her.

All she can do is lay in her bed, lay in her chair," Arsenault said. "Shes highly dependent for any task brushing her teeth, combing her hair, getting a shower."

Every waking moment shes in pain.

I can feel my bones," Weimar said. "Its like somebody took an ax and went right through me.

WFTS

Yet she believes Floridas prison system is far more broken than her body.

When I woke up in the ICU knowing that I was paralyzed from the neck down, I didnt see me making it, she said.

Cheryl Weimar

A troubled early life

She had one of the worst upbringings Ive ever seen of any of my clients, attorney Ryan Andrews said.

Andrews represented Weimar in her lawsuit against the Florida Department of Corrections. He said Weimar may look like the girl next door in photos he provided, but she was an abused child, ran away from home, turned to prostitution and began drinking and using drugs. By her early 20s, she was homeless.

She was living under a bridge after Hurricane Andrew and gave birth on all fours under an overpass, Andrews said.

Cheryl Weimar

Weimar was arrested for petty crimes over the next two decades. In 2014, her then-boyfriend Steven Horowitz was arrested for punching and kicking her in the ribs at a Broward County motel.

He beat her up," Andrews said. "He got out, came back. She was afraid, stabbed him, then she got arrested."

In 2015, Weimar was convicted of domestic violence for stabbing Horowitz with a steak knife and was sentenced to seven years at Lowell Correctional Institution in Ocala.

I had to fight, I had to do the best I could to get out of the situation, Weimar said. He nearly killed me.

Arsenault previously worked as a nurse at the prison and said the living conditions were terrible for inmates.

Court evidence photo

A brutal beating leads to a broken neck

On August 21, 2019, Weimar was assigned to clean toilets, but she said she was in pain from a hip injury.

I did about seven toilets and I realized I couldnt do anymore," she said. "So, I got down to the eighth one and I said 'I cant do it.'

Thats when she said correction officer Ryan Dionne and Lt. Keith Turner handcuffed her and then attacked her in front of more than a dozen witnesses.

The lieutenant came running up in the back with his steel-toed boots and put it right through my spine," Weimar recalled. "I mean, I went to my knees."

According to the lawsuit, while she was on the ground, "they brutally beat her with blows to her head, neck, and back."

The lawsuit alleges Weimar was elbowed and kneed in the back of her neck by at least one of her attackers, causing her to suffer a broken neck.

In one of the videos, her chin is touching her chest in a way thats physically impossible without a broken neck, her attorney, Ryan Andrews said.

Andrews said he could not share the disturbing videos due to a settlement agreement.

Her labored breathing, her attempts at crying; it was horrible," Andrews said. "Her begging. Saying she couldnt move her extremities. It was horrific."

Weimar was airlifted to a hospital, where she underwent multiple surgeries and months of treatment.

Corrections officers had questionable pasts

Initially, the guards accused of assaulting her remained on the job, despite their questionable pasts.

Everybody covers everybodys back, Arsenault said. You just sweep it under the rug and go about your business.

Both Dionne and Turner had records of violence toward women and girls.

According to the lawsuit, "Dionne was arrested in 2013 for beating his then-girlfriend as well as biting her neck and head area."

The charges were dropped when his victim refused to testify, allowing Dionne to qualify for employment by the Florida Department of Corrections.

The lawsuit also alleges Turner showed, "violent, threatening, and abusive conduct towards women based on dozens of inmate complaints against him."

A DOJ investigation into the mistreatment of prisoners at Lowell said Turner was accused repeatedly of sexually abusing multiple prisoners. However, he remained in his position until 2019, when he was arrested on charges of sexually molesting two girls.

They could have terminated one of the individuals for any of 10 different things that he had complaints against him for," Andrews said. "They didnt and that gave him the opportunity to be there and do what he did to Cheryl Weimar."

Transcripts show Dionne and Turner asserted their Fifth Amendment right more than 600 combined times during depositions.

In the affirmative defenses, Dionne and Turner filed in the lawsuit, they stated that their actions were not committed in "bad faith, with malicious purpose, or in a manner exhibiting wanton or willful disregard of human rights or safety."

Attempts to contact Dionne and Turner for comment were unsuccessful.

The Florida Department of Corrections settled the lawsuit in 2020 and paid $4.65 million.

Dionne resigned from his position several days later.

After nearly three years, no charges against officers

The Florida Department of Law Enforcement and the Department of Corrections spent more than two years investigating the beating.

Their findings were turned over to the Marion County State's Attorney in Nov. 2021, but nearly three years after the attack, neither officer has been charged.

They have everything they need to charge these guys, Andrews said.

When I did a crime, I had to pay for my crime," Weimar said. "I feel as though theyre not above the law. I feel as though they should have to pay for what theyve done to me and they havent."

If you have a story you think the I-Team should investigate, email us at adam@abcactionnews.com.

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Officers accused of inmate beating which left woman paralyzed not charged nearly 3 years later - ABC Action News Tampa Bay