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by Jim McCarthy

Criminal justice at the local level in Virginia is the province of the 120 Commonwealths attorney offices funded primarily by the state, with some also receiving local supplement. Indigent defendants may avail themselves of the Sixth Amendment right to counsel through 28 public defender offices. Many other indigent defendants will be represented by court appointed counsel from lists and attorneys overseen by the Virginia Indigent Defense Commission (VIDC) which is the statutory organization for public defenders.

The genesis of the existence of public defenders arose in 1963, ten years before Roe v Wade, with the SCOTUS opinion in Gideon v Wainwright. The defendant, Clarence Earl Gideon, was sentenced to five years in prison after trial at which he requested the appointment of counsel to defend him. At the time, states were mandated to consider appointed counsel only in capital offense proceedings, not for lesser offences which might involve imprisonment. The unanimous court in Gideon concluded that the Sixth Amendment did not distinguish between capital and non-capital cases, finding that a defendant faces the danger of criminal conviction because he does not know how to establish his innocence.

This hallmark decision and its progeny later gave rise to the familiar Miranda warning (Miranda v Arizona, 1966), a required notification by police in a custodial setting:

You have the right to remain silent. Anything you say can be used against you in court. You have the right to talk to a lawyer for advice before we ask you any questions. You have the right to have a lawyer with you during questioning. If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish. If you decide to answer questions now without a lawyer present, you have the right to stop answering at any time.

Gideon and Miranda are derived from principles in the Fifth and Sixth Amendments to the Constitution which are reasonably inferred from those provisions and not literally expressed. This type of jurisprudential reasoning pervades virtually all court decisions in some manner and is a commonly held value or belief in fairness and equity. Its antithesis is characterized as originalism or textualism whereby judicial reasoning is deemed to require a textual or literal reference in the Constitution or legislation upon which to base a decision.

In criminal cases, the Fifth Amendment precludes an accused from being compelled to be a witness against himself or be deprived of liberty without due process of law. The Sixth Amendment guarantees that the criminal defendant have compulsory process for obtaining witnesses and to have the assistance of counsel for his defense. Neither provision contains language conferring a right to court-appointed counsel; nor a right to remain silent; nor to cease answering questions. Were these conclusions reached by the justices based upon personal views? Are they reasonable, lawful? Does reliance upon them for decades create a fundamental entitlement?

Apparently, originalist justices are not of the opinion that precedent or reasonable interpretation of the Constitution or legislation may issue in the absence of text or clear language of such decision. That view is the essence of the leaked draft opinion in the abortion controversy by five justices. The Roe decision, they declare, was egregiously wrong when decided nearly 50 years ago because there is no basis in the Constitution for the protection of privacy.

In Garza v Idaho (2019), Justices Thomas and Gorsuch, joined in part by Alito, argued for the overturn of Gideon asserting it was wrongly decided in failing to identify a textual basis for appointed right to counsel. Thus, despite a statement limiting the overturn of abortion rights to that issue alone, the draft opinions line of jurisprudence as can be seen in Garza involves a much larger universe of established rulings. Privacy in marriage with respect to the use of contraception decided in Griswold v Connecticut (1965) is vulnerable. In that case, the court adverted to a penumbra of privacy based upon a view of the Bill of Rights of the Constitution together with the Fifth and Fourteenth Amendments. Writing for the majority, Justice Douglas frankly acknowledged that the Constitution does not mention the term privacy.

The logic of reductio ad absurdum may encourage and drive the present cohort of justices to an ultimate end of Constitutional jurisprudence. The 1803 decision in Marbury v Madison arrogated to SCOTUS authority to declare a law to be invalid upon judicial review. Chief Justice John Marshall crafted the ruling determining that a provision of the Judiciary Act of 1789 was unconstitutional, conflicting with the supreme law of the land in Article VI. Neither judicial review nor a power to declare a law unconstitutional exists in legislation or the Constitution.

Conceivably therefore, in a contemporary case or controversy, the originalist majority would be bound to agree that SCOTUS has no power to declare a law of Congress or a states unconstitutional due to the absence of a textual anchor. Combined with the reservation of powers to the states (Ninth and Tenth Amendments) such conclusion is inevitable. As precedent is no barrier, the originalists on the Court would be consistent in dismissing judicial review itself as a nullity. It follows that Justice Scalias magnus opus in Heller, interpreting a right to firearms by one and all, is fallacious since the Constitutional reference to the right to bear arms applies only to militias not individuals. Moreover, Heller has been in place for only 14 years, a mere bagatelle of time in the eyes of originalists.

Circling back, Virginia, without public defenders, would be on a path to increase its prison population, ensuring innocent, mostly poor, defendants are jailed while police misconduct thrives in the absence of Miranda. A certain amount of chaos is expected as Constitutional clarity is exercised.

In the Old Testament, Gideon and his overmatched forces frightened the enemy into disbanding camp after surrounding it with blaring trumpets and flaming torches. Lord, what fools these mortals be, says Robin Goodfellow or Puck in Shakespeares Midsummer Nights Dream musing about human folly. Look for the Constitutional provision enumerating nine justices.

Related

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Silence of the Trumpets - Bacon's Rebellion

Title IX, passed in 1972, is an amendment to the Civil Rights Act of 1964 that focuses on sex-based discrimination in schools that receive public funding. On its surface, theres nothing wrong with this. Discrimination is bad and should not be allowed in public schools. In practice, however, that is not what this law is for.

A series of court decisions and eventually pressure from the Obama administration in the early 2010s clarified that sexual assault or harassment count as discrimination under this law. By allowing assault and harassment to go unchecked, the school is fostering discriminatory policies and they would lose federal funding. Therefore, schools are obligated to prevent harassment and assaults. Again, this may seem reasonable on the surface, but its not.

The problem is that when anybody is accused of wrongdoing by the government, they are constitutionally entitled to due process. This means that the accused must be presented with the evidence against them, be allowed to confront their accuser, and have an opportunity to provide evidence of their own for their defense. In practice, this does not happen. Schools actively prevent the accused from confronting their accuser, under the false guise of protecting victims. Tribunals are conducted behind closed doors without the accused even being allowed inside.

Schools have been sued countless times for violating peoples constitutional rights; despite schools continuously losing these suits, they keep doing this because they dare not risk losing federal funding.Even when the alleged victim says nothing happened, schools will still expel the accused.

Title IX has become synonymous with the Inquisition.

In 2015, Professor Laura Kipnis from Northwestern University wrote a letter in a newspaper criticizing the harassment policies so common in schools because they violate due process. In response, the university launched a Title IX investigation against her. She wasnt even accused of assault or harassing anyone. Students complained that because she dared to criticize school policy, her presence on campus created a chilling effect that prevented students from reporting when they are harassed. Criticism of Title IX is itself a Title IX violation.

Recently, three middle schoolers from the Kiel Area School District in Wisconsin are being accused of sexual harassment for refusing to use a self-described non-binary persons preferred pronouns. It is one thing to prevent slurs; it is entirely different to compel speech. This new standard, being pushed by the Biden administration, is untenable. This is not harassment, much less discrimination on the part of the school.

Modern Title IX law is so far corrupted from its original intent it is beyond saving. It violates peoples Fifth Amendment rights to due process, frequently kicking students (and staff) out of school with no chance to defend themselves, leaving them with tens of thousands of dollars in debt and no degree to show for it. It violates peoples First amendment right to free speech, both by prohibited speech people want to say, and compelling speech people do not want to say.

During the Trump administration, Education Secretary Betsy DeVos tried to institute much needed reforms, requiring due process. The ACLU (of all people) sued saying that due process is a bad thing. Now the Biden administration is undoing these reforms.

Peoples constitutional rights cannot depend on the whims of administrators. There are no reforms that can withstand partisan bickering. Title IX is fundamentally flawed and should be abolished.

William Smith lives in Fargo.

This letter does not necessarily reflect the opinion of The Forum's editorial board nor Forum ownership.

Originally posted here:
Letter: Abolish Title IX of the Civil Rights Act - INFORUM

Charter bus company North Fork Express, Tritec Real Estates planned Ronkonkoma Hub project and Tritecs Robert Coughlan (EverybodyWiki/Orenawong, Tritec Real Estate, iStock)

A developer may be forced to pump the brakes on a massive mixed-use project in Ronkonkoma, as a bus company owner is refusing to yield to an attempted seizure by eminent domain.

A depot operated by charter bus company North Fork Express stands in the way of the second phase of Tritec Real Estates $750 million Ronkonkoma Hub project, according to Newsday. Tritec has asked the Brookhaven Town Industrial Development Agency to condemn the depot, which sits on a 2.2-acre site on Hawkins Avenue near MacArthur Airport and Ronkonkomas Long Island Rail Road Station.

The IDA will hold a virtual public hearing on the issue Wednesday.

Municipalities use eminent domain when attempting to seize a property for a public purpose, such as parks or affordable housing. The Fifth Amendment requires municipalities to give owners just compensation for seized properties.

North Fork Express owner Greg Mensch said he could be willing to negotiate, but isnt happy with the offer hes received from Tritec.

They want to give you what they want to give you and thats it, Mensch told Newsday. Theyre taking private property and they, the town, want to give it to a private developer.

A spokesperson for Tritec said the firm prefers to negotiate.

Both sides have leverage. On the one hand, the town can seize the property and pay fair market value determined by an appraiser, which would result in Mensch losing the property, perhaps for less than hed want for it. But Mensch could mount a legal defense and drag out the eminent domain process, driving up the projects costs.

The initial phase of the Ronkonkoma Hub project wrapped up two years ago and the first tenants moved in three years ago. The second phase is expected to add 388 residential units, 74,000 square feet of retail, 17,000 square feet of offices and a village square for events.

Should it be completed, the development would contain 1,450 apartments, 195,000 square feet of retail and 360,000 square feet of offices.

In December, the IDA approved condemning more than a dozen properties, mostly small businesses, for the project. When the project was approved in 2014, the town and Tritec had said they had no plans to use eminent domain to acquire properties, according to Newsday.

[Newsday] Holden Walter-Warner

Contact Holden Walter-Warner

More:
Holdout threatens massive Long Island development - The Real Deal

Now may be a good time to max out your investments in airlines, car rental agencies and intercity bus companies. Travel has picked up as the pandemic has ebbed, but the Supreme Court could give it an extra boost by revoking the constitutional right to abortion.

If that happens, a lot of American women are going to find that "shop local" is a useless slogan when it comes to this type of commerce. The pro-choice Center for Reproductive Rights has predicted that with Roe gone, "abortion would remain legal in twenty-one states and likely would be prohibited in twenty-four states."

Vast swathes of the continent would become abortion-free zones free of legal abortions, anyway. But Americans have been traveling to get what they want since the Pilgrims arrived, and women with unwanted pregnancies are no exception.

In the days before Roe, when the procedure was illegal in most of America, places like New York and Washington state had lots of visitors who didn't come for recreation. Some 40% of all abortions were performed on patients outside their home state.

Already, liberal states are a destination for desperate abortion-seekers. Illinois, surrounded by states that have greatly restricted access, saw nearly 10,000 women come from out of state to get abortions in 2020, the Chicago Tribune reports. Planned Parenthood says that number may quadruple if Roe falls. We are on the verge of a wave of abortion refugees.

But anti-abortion advocates are not likely to accept this outcome as inevitable. A bill was introduced recently in the Missouri Legislature to bar its residents from getting abortions out of state.

Republican Rep. Mary Elizabeth Coleman told Politico: "If you believe as I do that every person deserves dignity and respect and protection whether they're born or unborn, then of course you want to protect your citizens, no matter where they are." Though her measure didn't pass, it will undoubtedly inspire other states to enact their own bans.

That would be a radical step, but "radical" is a term of endearment in the anti-abortion movement. It would be a terrible idea, though, and one at odds with our entire system of federalism.

One of our fundamental freedoms, long recognized by the Supreme Court, is the right to travel within the United States and be treated as an equal citizen from sea to shining sea. A state government can no more burden the freedom of its residents who venture out of state than it can burden the freedom of migrants from out of state.

In 1969, the court struck down a California law imposing a residency requirement for public assistance. It said the rule violated the right to travel and amounted to "an unconstitutional discrimination which violates the Due Process Clause of the Fifth Amendment."

For a state to assert its power over citizens beyond its borders would be an act of extreme presumption. Decades ago, when Nevada was the only state with legal casinos, everyone could go there and gamble without fear of bluenoses back home.

The same limits apply today. Utah can ban recreational cannabis, but its residents may drive to Colorado to get high. California may forbid the open carry of guns, but it can't stop Angelenos visiting Arizona from packing in public view.

As University of Pennsylvania law professor Seth Kreimer has written, one basic principle of American federalism is "that each citizen may take advantage of the liberties offered by any state." This arrangement also contributes to our national civic peace by accommodating a diversity of policies.

Anti-abortion advocates may argue that their cause is different because it involves life and death. Not so. A New Yorker who kills a fellow New Yorker in Atlanta and is acquitted under Georgia's "stand your ground" law cannot be convicted under New York's less lenient statutes.

Conservatives, who champion state sovereignty, should recognize that only one state can be sovereign within its borders. Otherwise, every state could extend its policies into the other 49 states.

The right should also beware of handing a new weapon to progressives. If a state can punish conduct that takes place in another state, Connecticut, which bans "assault weapons," could imprison a resident who uses one for target shooting in Maine. The possibilities for liberal mischief are endless.

If and when the enemies of Roe win their greatest victory, they will be tempted to seize every possible method of exploiting this success. But even the long reach of the law needs limits.

Here is the original post:
Column: The coming fight over out-of-state abortions - Tampa Bay Newspapers

from the looking-at-the-wrong-problem-and-it's-not-even-a-problem dept

More case law on compelled passcode production and the Fifth Amendment has been generated by a New Jersey appeals court. Unfortunately, it doesnt do anything to strengthen Fifth Amendment protections against compelled production.

And thats largely because this court cant. The states Supreme Court handed down a ruling in August 2020 that limited the foregone conclusion the government needed to reach before securing a court order demanding passcode production was limited to the device and the existence of a passcode, rather than offering supporting arguments about the presumed existence of criminal evidence on the device.

That case dealt with a crooked cop whose phones were seized during an investigation. After discussing some (still unaddressed) concerns about the Fifth Amendments inconsistent application in other cases that may protect people using passwords more than people using biometric features to unlock phones, the court said that, in this case, law enforcement knew what it needed to know to surmount the foregone conclusion barrier.

The States demonstration of the passcodes existence, Andrewss previous possession and operation of the cellphones, and the passcodes self-authenticating nature render the issue here one of surrender, not testimony, and the foregone conclusion exception to the Fifth Amendment privilege against self-incrimination thus applies. Therefore, the Fifth Amendment does not protect Andrews from compelled disclosure of the passcodes to his cellphones.

Its this case thats specifically cited in this appeals court decision [PDF]. The lower court refused to grant the governments motion to compel, citing its inability to prove the locked iPhone seized belonged to the suspect. It also said the search of the phone (which hasnt occurred yet) raised additional Fourth Amendment concerns.

Heres how everything started:

Det. Pancza and members of the Internet Crimes Against Children Task Force executed the three warrants at 6:00 a.m. on July 16, 2021, at defendants residence. Defendant was located in his locked bedroom. He was the only occupant of the room, and he refused to open the door. Ultimately, the officers forced entry into defendants bedroom.

During their search of defendants bedroom, officers located three electronic devices: a Samsung cell phone, an Asus laptop, and an Apple iPhone. The iPhone was found in a pull string bag hanging on the back of a computer chair.

In accordance with the search warrant, Detective Brian Migliorisi attempted to access the iPhone 7, but he was prevented from doing so because the iPhone was passcode protected. The only information Det. Migliorisi could retrieve from the iPhone was its association with the same iCloud email account from the cyber tips, the one containing defendants last name and first initial. Defendant was charged with third-degree endangering the welfare of children, N.J.S.A. 2C:24-4(b)(5)(b)(iii).

The lower court did not find these circumstances added up to proof of the defendants ownership of the iPhone.

The court denied the motion, concluding the State failed to establish defendants ownership of the iPhone and knowledge of the passcode. The court found that officers locating the iPhone in a backpack in a bedroom was insufficient to prove defendants ownership. The court also found that the phone immediately being in the vicinity of the defendant at the time of the search did not conclusively demonstrate that . . . defendant own[ed] the phone.

The appeals court disagrees. First, it points to the August 2020 Andrews decision, which limited the Fifth Amendment discussion to the government proving a passcode exists, the defendant operates or controls the device in question, and that entry of the passcode would allow investigators to access the devices contents. From what it sees here, the government has everything it needs to utilize the foregone conclusion exception.

Further, it says the Fourth Amendment concerns about the proposed search have no bearing on this discussion because the search hasnt been performed and the defendant never challenged the warrants utilized in this case. If the search is indeed determined to be overbroad, the defendant can challenge it then. But because no challenge to the probable cause basis was raised by the suspect, the lower court was wrong to bring Fourth Amendment analysis into a discussion dealing solely with compelled production.

The only standard being applied to compelled production was easily met here, the appeals court says.

The motion court found defendant was in the vicinity of the phone and concluded that this was insufficient to prove defendants ownership or operation of it. We disagree, as the court overlooked credible evidence in the record when making its findings. At the time of the search the phone was in defendants locked bedroom; he was the sole occupant and refused to let the police in. Significantly, the email address associated with the phones iCloud account incorporates defendants last name and first initial. These probative facts, which suggest that defendant owned and operated the iPhone, were omitted from the motion courts analysis.

Any further appeal efforts within the state will be foreclosed by the state Supreme Courts decision. To appeal this determination, the defendant will have to look to the top court in the land. That remains an option because this is a discussion about federal constitutional rights rather than limited to the protections granted by New Jerseys constitution. But odds are slim this will be examined by the US Supreme Court. The Andrews case that set state precedent has already had its appeal effort rejected by SCOTUS. For the time being, it will remain pretty easy for New Jersey law enforcement to bypass the Fifth Amendment.

Filed Under: 4th amendment, 5th amendment, compelled disclosure, compelled speech, new jersey, passwords, phone passcode

Go here to read the rest:
NJ Appeals Court: Lower Court Mixed Up 4th And 5th Amendment And Either Way, Phone Passcodes Can Be Compelled - Techdirt