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Trenton, New JerseyOn Tuesday, January 21, at 1 pm, EFF Senior Staff Attorney Andrew Crocker will ask the New Jersey Supreme Court to rule that the state cant force a defendant to turn over the passcode for his encrypted iPhone under the Fifth Amendment, which protects Americans rights against self-incrimination.

The Fifth Amendment states that people cannot be forced to incriminate themselves, and its well settled that this privilege against self-incrimination covers compelled testimonial communications, including physical acts. However, courts have split over how to apply the Fifth Amendment to compelled decryption of encrypted devices.

EFF, ACLU, and ACLU of New Jersey filed a brief in the case State v. Andrews arguing that the state cant compel a suspect to recall and use information that exists only in his memory to aid law enforcements prosecution of him.

At Tuesdays hearing, Crocker will tell the court that reciting, writing, typing or otherwise reproducing a password from memory is testimony protected by the Fifth Amendment.

Read theamicus brief EFF filed in the Andrews case:https://www.eff.org/document/effaclu-amicus-us-v-andrews

WHO: EFF Senior Staff Attorney Andrew Crocker

WHAT: New Jersey v. Andrews

WHERE:Supreme Court of New Jersey 25 Market St.Trenton, NJ 08611The argument will also be live-streamed.

WHEN:TuesdayJanuary 211 pm

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Tuesday Hearing: EFF Argues in New Jersey Supreme Court That Defendant Can't Be Forced to Turn Over Password to Encrypted iPhone - EFF

MICHIGAN CITY Its been nearly a month since a mistrial was declared in the murder case against Hakim Zamir Lamar Qualls.

And although his new trial is set to begin Jan. 27, Qualls who was released on GPS monitoring upon mistrial will return to La Porte Superior Court 1 on Thursday to ask whether his case should be dismissed entirely.

The defense filed a motion Friday asserting that Qualls case should be dismissed on the basis that to try it again would violate the double jeopardy clause of the Fifth Amendment.

Defense attorney Elizabeth Flynn also contends in a memorandum of law filed last week that prosecutors and their professional witness acted in concert to goad Qualls into requesting a mistrial to subvert the protects afforded by the Double Jeopardy Clause.

The mistrial was declared after state witness Jillian Ashley now assistant chief of the Michigan City Police Department, but a detective when she investigated the alleged murder divulged information to the jury that the judge had previously deemed inadmissible.

Specifically, she testified that Qualls had not provided a statement to police upon his arrest, despite having made a claim of self-defense in relation to the Dec. 18, 2018, fatal shooting of 18-year-old Dareon Brown.

Her doing so prompted the defense to request a mistrial, which was granted on Dec. 17, 2019.

The same day, prosecutors filed a motion to add two additional charges attempted murder and aggravated battery to the counts of murder and dangerous possession of a firearm that Qualls already faced.

In their request that new charges be added, prosecutors cite information they admittedly gleaned from the defenses opening statement and witness testimony at the first trial:

a. Defense indicated the victim Dareon Brown's gun 'clattered away,' the Defendant picked it up and fled the area."

b. Physical evidence shows that Dareon Brown was shot with his own gun twice.

"Under Indiana law, retrial following a defendant's successful mistrial motion is only barred where the government's conduct is responsible for the mistrial motion, Flynn writes in her memorandum.

And she notes it was Ashley, acting in her capacity as a professional witness for the state, who caused the mistrial.

"The State did not object to this Court's decision to grant a mistrial, Flynn states. The State immediately, on the same date that the mistrial was rendered, filed a Motion to Amend the Information to add new charges of Attempted Murder and Aggravated Battery. The State has further engaged in additional investigation for what appears to be for the purposes of discrediting the Defendant's version of events which was shared during the Defendant's opening statement. The State is attempting to benefit from its own misconduct and the egregious misconduct of its witness."

Flynn also takes issue with having allowed Ashley to investigate a case in which the alleged victim was her nephew. The defense contends that it provides Ashley with a personal stake in the outcome of the case.

Judge Michael Bergerson will conduct a hearing on the defenses motion to dismiss and the states request that Qualls be charged with attempted murder and aggravated battery on Thursday during criminal call, which begins at 8:30 a.m. in Superior Court 1.

Follow this link:
Qualls asks to have murder case dropped - The Herald Argus

The House of Representatives has chosen members toparticipate in the Senate impeachment trial of President Donald Trump, and theyhave presented the articles of impeachment to the Senate.

This is only the third impeachment trial of a presidentin our nations history, with the others occurring in 1868 for Andrew Johnsonand 1999 for Bill Clinton.

Here are eight things you need to know as the Senate prepares to begin Trumps impeachment trial.

Senate President Pro Tempore Charles Grassley, R-Iowa, administered the oath Thursday to Chief Justice John Roberts, who will preside over the trial.

Roberts, in turn, administered the oath to all senators. Senate Majority Leader Mitch McConnell, R-Ky., announced that the trial itself will begin at 1 p.m. Tuesday.

The Clinton impeachment took five weeks, and Johnsons lasted 11 weeks. The Senates impeachment trial rules, adopted in 1986, mandate that the trial should begin at noon and last until the Senate decides to adjourn, Monday through Saturday, until final judgment shall be rendered.

Animpeachment trial is not like a run-of-the-mill trial, but it does have somesimilarities. House managers will act as the prosecution, presenting the casefor impeachment to the senators, whose role is a combination of judge and jury.

House Speaker Nancy Pelosi, D-Calif., announced the seven members of the House who will serve as the managers, including Intelligence Chairman Adam Schiff, D-Calif., and Judiciary Chairman Jerry Nadler, D-N.Y.

A team of lawyers will put on the presidents defense, including White House counsel Pat Cipollone; Trumps personal attorney, Jay Sekulow; and former independent counsel Ken Starr, whose investigation into the Whitewater controversy led to Clintons impeachment.

Roberts will preside over the trial, consistent with Article 3, Section 6 of the Constitution, although it is mostly a ceremonial role.

After presiding over Clintons impeachment trial, then-Chief Justice William Rehnquist said, I took a leaf out of [Gilbert and Sullivans comic opera] Iolanthe I did nothing in particular, and did it very well.

When the trial begins, the Senate will adopt a resolution establishing the specific timetable, including the time allotted for each side to present its case, senators to ask questions, and the Senate to consider motions.

At thatpoint, if the Senate follows the general pattern of the Clinton trial, theSenate will vote on a motion to dismiss the impeachment and, if that motionfails, on whether additional witnesses or evidence should be considered.

DuringJohnsons impeachment trial, the prosecution and defense called a total of 41witnesses. During the Clinton trial, three witnesses provided videotaped testimony.

McConnell and several other Senate Republicans have indicated they think the Senate should rely on transcripts of the testimony of witnesses who appeared before the House, while Minority Leader Chuck Schumer, D-N.Y., and several other Democrats have demanded that witnesses be called to testify.

No. Whilethe Senate does issue a summons to the individual being tried, its impeachmenttrial rules allow for an appearance by the defendant or by his attorney.

TheSenate tried, unsuccessfully, to force Johnson to appear for his impeachmenttrial. The New York Times publishedan account of how Chief Justice Salmon Chase asked the Senate sergeant-at-armsto summon the president.

In aloud voice, and amid the stillness of the whole chamber, he called three times,Andrew Johnson, Andrew Johnson, Andrew Johnson! but instead the presidentslegal team, including Attorney General Henry Stanbery (whoresigned the day before) and former Supreme Court Justice Benjamin Curtis,arrived.

Clinton likewise did not appear before the Senate during his trial.

Trump previously indicated he would strongly consider testifying or providing a written statement to the House during its impeachment inquiry, but that didnt happen. Odds are, Trump wont be present at the Senate trial.

Senators are not required to employ a specific standard of proof. During the 1986 impeachment trial of U.S. District Judge Harry E. Claiborne, he made a motion to designate beyond a reasonable doubtthe standard in criminal trialsas the standard for his trial.

Afterthe presiding officer ruled that the question of standard of evidence is foreach senator to decide individually, the Senate voted 75 to 17 againstestablishing a mandatory standard.

Similarly, the rules of evidence used in criminal trials do not apply in an impeachment trial. The Senates impeachment trial rules state that the Senates presiding officer has the authority to rule on questions of evidence.

Any senator, however, may ask that the full Senate vote on such matters. That reflects the Constitutions assignment to the Senate of the sole Power to try all Impeachments.

Senatorshave taken an oath to do impartial justice, according to the Constitution andlaws in all things pertaining to the impeachment trial.

Sen.Dick Durbin, D-Ill., the minority whip, arguedthat some senators have already failed to meet the independent and dignifiedstandard the Constitution envisioned.

Therehave alreadybeen calls for the House managers to move to disqualify senators whoseimpartiality is in question. There is no basis in the Constitution, Senaterules, or history for such an attempt.

The only qualification for participating in a Senate impeachment trial is to be a senator.

Whilethe trial itself will be open to the public, the Senates deliberations afterits conclusion will not be.

The Senate will then come back into public session to vote on each article of impeachment. Senate impeachment trial rules say that the Senate must vote on each article in its entirety, and the Constitution requires the vote of two-thirds of the [senators] present for conviction.

Removalfrom office is automatic upon conviction, and the Senate may vote separatelywhether to disqualify the defendant from serving in any other federal office.

The Constitution explicitly provides, however, that these consequences by the Senate do not, if the defendants conduct is also criminal, prevent Indictment, Trial, Judgment and Punishment, according to Law.

In theory, he likely could be retried in the future.Although neither the Constitution nor Senate rules address this issue, and no precedent exists for it, a few legal scholars, such as former Obama administration official Neal Katyal, have pointed out that the Fifth Amendment Double Jeopardy Clause does not apply to impeachment proceedings.

A retrial on the same charges, however, would seem highly unlikely, and such a retrial would certainly run counter to the general principle of double jeopardy that someone cannot be tried twice for the same offense.

What is more plausible and likely is that the House would introduce new articles of impeachment, which it could do.

Senate committees may hold hearings in the morning ofeach trial day, but doing any business such as sending bills, nominations, orother matters to the full Senate would require the consent of all senators.

The Senate impeachment rules provide that the chambermust suspend its legislative and executive business while the trial is underway.

The trial should not affect the Supreme Courts oral argument schedule. The court has arguments scheduled Tuesday and Wednesday, but those will conclude by 11 a.m.

Thecourt wont meet again for arguments until Feb. 24. Aside from taking up someof Roberts time in the afternoon, the trial is unlikely to otherwise affect thecourt.

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The Senate Impeachment Trial: 8 Things You Need to Know - Daily Signal

Its January, so most state legislatures are kicking off their sessions. Across state capitols, one issue to monitor is the fallout from the Supreme Courts 2019 landmark decision inKnick v. Township of Scott, a holding which may compel many local governments to rethink how they regulate private property.

Professor Ilya Somin coauthored anamicus briefto theKnickCourt on behalf of the Cato Institute and other organizations, and hesummarizedthe controversy as follows:

The main point at issue inKnickis whether the Court should overrule or limitWilliamson County Regional Planning Commission v. Hamilton Bank, a 1985 decision that makes it virtually impossible to bring many types of takings cases in federal court. Under Williamson County, a property owner who contends that the government has taken his property and therefore owes "just compensation" under the Fifth Amendment, cannot file a case in federal court until he or she has first secured a "final decision" from the relevant state regulatory agency and has "exhausted" all possible remedies in state court. At that point, it is still often impossible to bring a federal claim, because various procedural rules preclude federal courts from reviewing state court decisions in cases where the case was initially brought in state court.

Property owners prevailed last Summer, as explained by my colleague Ilya Shapiro:

[Today] the Supreme Court inKnick v. Township of Scottruled 5-4that a government violates the Fifth Amendment's Takings Clause when it takes property without compensation, and a property owner may bring a claim to that effect in federal court at any time . . .Knickrepresents the culmination of many years of challenges toWilliamson County, and years of effort to put property rights (and takings claims specifically) on the same procedural footing as other rights enumerated in the Bill of Rights.

No longer will courts relegate the Takings Clause to second-class status among our rights. Of course, theKnickholding is only the start. Now, states must deal with the constitutional consequences.

As Justice Elena Kagan noted in her dissenting opinion, There are a nearly infinite variety of ways for regulations to affect property interests. One such "way"increasingly popular of lateinvolves local laws that obstruct mineral extraction on private property. Obviously, these measures would result in property owners losing some or all of the value of their subsurface mineral rights.

AfterKnick, affected property owners are much more likely to get their day in federal court to seek just compensation from the government. This access to courts, in turn, changes the dynamic between local governments and regulated entities. Most localities have insufficient resources to either litigate these challenges or provide just compensation (if they lost in court). The upshot is thatKnickgives local governments a strong incentive to revisit recently passed roadblocks to oil and gas production.

Which brings us to Colorado, among the biggest beneficiaries of the recent revolution in American oil and gas production ushered in by technological breakthroughs in directional drilling and hydraulic fracturing. At present, the industryannually createsmore than $30 billion in wealth for the state.

A mere months before the Supreme Courts decision inKnick, Colorado Governor Jared Polis signed SB19-181, a massive overhaul to the states oil and gas regulatory regime. Among other measures, the law provides local governments with increased authority to limit subsurface property rights.

InKnicks wake, some Colorado officials are asking hard questions about SB19-181. One of them is Sen. Kevin Lundberg. Almost a decade ago, I worked with Sen. Lundberg on the states implementation of the Clean Air Act, and I know hes a serious lawmaker.

Last month, Lundberg led the Republican Study Committee of Colorado in a series of hearings on how SB19-181 will function in a post-Knickworld. His findings are sobering: Potentially, thousands of Colorado citizens who are mineral interest owners can have their day in Federal court and seek literally trillions of dollars.

In hiswriteupof the hearings, Sen. Lundberg correctly observed that Something has to give . . . If [state] policy makers are smart, they will unwind SB19-181 before it becomes a crisis for the entire state.

During the new legislative session, Sen. Lundberg promised more hearings on the matter. Coloradans should hope his colleagues give this matter the attention it deserves. Even if the state lawmakers dont act, I suspect that municipal and county governments in Colorado will think twice before they exercise their SB19-181 authority to constrain property rights.

This article by William Yeatman first appeared at the Cato Institute.

Image: Reuters.

Read this article:
Local Governments May Soon Be Forced To Rethink How They Use Private Property - The National Interest Online

I watched the TV piece on Joe McCarthy with great interest the other night. I had reason to. Of all the hundreds of articles I have written over the past 70 years for the T&G and other periodicals, none stirred such a response as one I wrote in 1953 about McCarthy.

It was titled MCCARTHY SHOULD BE EXPELLED. Today that doesnt surprise, given what we know now about McCarthy and his slimy sidekick, Roy Cohn. But 75 years ago it dealt with an issue of astonishing destructive power. In the space of less than three years, McCarthy and Cohn divided the nation dangerously, crippled the U.S. Senate, destroyed important careers in the State Department and made the U.S. Army look ridiculous. All done with a series of blatant lies lies easily refuted but strangely persuasive to millions of Americans.

Joe McCarthy proved one thing: you dont have to be in the White House to rip the country apart. You can do it with a megaphone if you understand the target and the timing. His target in 1951-54 was communism. He was only a junior senator from Wisconsin, but he was eerily able to sell the notion to the nation that the United States was imperiled by a massive Communist conspiracy centered in the State Department and the Treasury. The facts, amply proven many times in the ensuing years, is that the leftist influence in the government was limited to a handful of individuals. Unfortunately, a few of those, such as Alger Hiss and the Rosenbergs, were prominent and made for scary headlines.

The McCarthy piece on TV did a good job with the history of the time. But it didnt quite convey the chilling atmosphere that pervaded the land the feeling.that something ominous was imminent. For McCarthys true believers it was the insidious threat of communism, ready to subvert the nation from within. For those opposed, it was the destructive, malign McCarthy-Cohn crusade itself that posed the greatest peril. The nation watched in fascination as prominent public figures went up on television to the various hearings.

Are you or have you ever belonged to a Communist organization was the routine question posed by McCarthy to any number of individuals. Not all could answer in the negative, a fact duly exploited by the far-right press. Those who called on the Fifth Amendment or the rule of law got little support or sympathy from McCarthy and Cohn.

McCarthy was a toxic subject for many of the nations newspapers. My own piece caused a stir at 20 Franklin St., where the T&G was then housed.

I had decided, after months of McCarthys outrages, that the paper should declare itself on the issue. I wrote it without consulting the higher-ups, which in those days meant George F. Booth, editor, publisher and part owner of the newspapers. Booth and his fellow colleagues apparently were not yet ready to condemn McCarthy, and my piece floated in the wind for a week or two. Then, finally, Mr. Booth sent word that it could be published, but not as an editorial. So it came out as an article with my byline. As I noted earlier, never before or since have I experienced such a reaction both pro and anti McCarthy. You had to be there to appreciate it.

I dug out that old article to refresh my memory. It was hardly the firebrand grenade of 1953, but just a summary of the main charges against him familiar enough today. What seems amazing even now is the depth of the division in the country. People on both sides could not understand how their friends and relatives could possibly hold such views. Many a family meal was broken up in acrimony.

I listed some of the misdeeds committed by McCarthy his arrogant handling of his investigating committee with his one-man hearings, his brow-beating of witnesses and his fantastic and false claims.. . Joe McCarthy stands up in the Senate and has the gall to claim that the nations fate is his own ... that he and he alone knows what is good for America.

Particularly disappointing was the craven way the U.S. Senate responded to McCarthy. Only one senator Margaret Chase Smith of Maine had the guts to condemn him on the floor of the Senate. I remember cornering Sen. Leverett Saltonstall and plying him with questions. Didnt he see the damage McCarthy was doing to the Senate and the country and the Constitution? But Saltonstall, no crusader, refused to follow Senator Smiths lead. He thought the thing would play out in time.

Eventually, of course, it did play out and the Senate eventually voted, 67 to 22, to censure him. And with that, McCarthy reign of terror was over. But he left a lasting impression. Populist movements can pose a danger to constitutional government.

More here:
Al Southwick: Joe McCarthy and me - News - Worcester Telegram