Class 4: 5th Amendment, etc.

Continuing with Substantive Due Process

• Continued discussion from 15 September
• The Constitution appears to limit the government's power, but is this really so?
• US v. Gaudin 515 U.S. 506, 115 S. Ct. 2310, 132 L. Ed. 2d 444 (1995) suggests that the prosecutor must prove every element of a crime beyond a reasonable doubt before you can be punished for it, but see Morrissey from just the other day.
• "...nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb..."
  • But remember Blockburger: it's sort of an end-run around double-jeopardy. See, e.g., State v. Lasky 2002 WI App 126, 254 Wis. 2d 789, 646 N.W.2d 53 (Ct. App. 2002) (federal and state prosecution for the same bank robbery)
• Can the executive branch kill a US citizen without any trial? Amazingly, this is apparently open for debate.
• Can the government imprison you without a trial?
  • Jose Padilla was held for 3.5 years, without even being charged with the crime for which he was ostensibly being held.
  • Kevin Mitnick spent 4.5 years in prison (including 8 months in soltary) prior to trial
• Can the government charge you with a crime for violating your employer's computer use policy? (i.e., do private organizations have the power to make laws that govern their employees?
  • In Ohio, it would appear so... see State v. Wolf, 2009 Ohio 2018, 2009 Ohio App. LEXIS 1677.
  • Discussions are ongoing in the 9th circuit.
• What cases didn't even make it to the appellate stage?
• Thesis: the government, and the executive branch in particular, will always push the boundaries of its power. Given the scarcity of court resources, and their general distaste for letting criminals go free, courts are an unreliable vindicator of individual rights.

5th Amendment and Self-Incrimination

• "...nor shall be compelled in any criminal case to be a witness against himself..."
  • What is self-incrimination (i.e., how incriminating must a piece of testimony be in order to be protected, and in what context must it be incriminating)?
  • Which (if any) of the following is prohibited, because it is testimonial, and therefore can't be compelled?
    • An order that you be photographed
    • An order that you give an impression of your fingerprints
    • An order for a sample of your blood
    • An order that you write out a specific passage of text
    • An order that you speak a specific set of sentences aloud
    • An order to assume a particular stance, walk or make particular gestures
    • An order to reveal the password necessary to decrypt an encrypted laptop drive (United States v. Boucher; VT Dist. Ct.)
    • An order that you surrender the contents of the memory of your implantable defibrilator device
  • Which (if any) of the following is a severe enough degree of pressure that it is considered compulsion, so that testimony obtained this way would be a violation of the 5th Amendment?
    • Threatening a convict on extended supervision with revocation
    • Threatening to proceed with more serious charges
    • Threatening to withdraw a plea agreement
    • Threatening to prosecute a family member
    • Threatening to turn over evidence to the secret police in one's home country
    • Threatening termination of employment for failure to cooperate with an investigation Garrity v. New Jersey, 385 U.S. 493 (1967); Kalkines v. US 200 Ct. Cl. 570, 473 F.2d 1391 (1973)
    • A law that requires felons to register any firearms they own Haynes v. United States, 390 U.S. 85 (1968)
• What is it that is being protected here?
  • Originally, your right not to be tortured or presumed guilty (see the Levellers). Actually, this wasn't even so very long ago (Brown v. Mississippi, 297 U.S. 278, (1936))
  • Now, maybe your right to keep certain thoughts to yourself, at least once you're in custory.
  • Why do we need this protection?
• Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177, 124 S. Ct. 2451, 159 L. Ed. 2d 292 (2004). The law enforcement officer's request for identification did not implicate Hiibel's 5A right not to incriminate himself because Hiibel had no reasonable expectation that disclosing his name would be incriminating. This is paradoxical.
  • The court leaves open the question of what happens when disclosing your name is incriminating.
  • Does this mean that you can only invoke your 5A right if you have something to hide? See Griffin v. California 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965): 5A wouldn't give you any protection at all, if invoking it could be used against you (Note: opinion by Douglas, who dissented in both Morrissey and Grayned ""The Constitution is not neutral. It was designed to take the government off the backs of the people...."); but see the the notion of "Fifth Amendment Communists".
  • If not, what is the proper remedy when it turns out that you actually did have the right not to disclose your identity? You could argue that the evidence should be suppressed, and maybe testimony in support of that motion couldn't be used against you at trial. US v. Hollingsworth, 495 F.3d 795, 805 (7th Cir. 2007). But what about a trial to the court?
• Rick is charged with second degree sexual assault of a minor, contrary to § 948.02(2). He enters an Alford plea, is sentenced to eight years of confinement plus eight years of extended supervision, and serves his time. The terms of his extended supervision include completion of sex offender therapy, can he either maintain his innocence or remain silent in therapy, or must he profess guilt in order to avoid revocation? (State ex rel. Tate v. Schwartz, 2002 WI 127, 257 Wis. 2d 240, 654 N.W.2d 438).

  Would it be different if his sentence were the result of a plea agreement? (State v. Carrizales, 191 Wis.2d 85, 528 N.W.2d 29 (Ct. App. 1995)

Ethics and Professional Responsibility

• Frank comes to you and says, "I think I am going to need a lawyer. I shot someone last night. It was in self-defence, of course; there was a big fight, and I was afraid for my life. There were witnesses, and they might have gotten the wrong idea about what happened. The police haven't come for me yet, but I expect they will." You agree to the representation, and Frank pays your retainer. The next morning, you read in the paper that on the basis of eye-witness identification, Joe has been charged with second-degree intentional homicide, contrary to § 940.05(1)
  • Do you know that Joe is not guilty?
  • Do you know that Frank is guilty?
  • Can you say anything to Joe's attorney?
  • Can you say anything to the prosecutor?
  • Are you deceiving the court by remaining silent?
  • Does the situation change if Frank dies?
  • Does the penalty that Joe faces matter?
  • Alton Logan spent 26 years in prison despite being innocent, and two attorneys knew their client was guilty, but did not have permission to do anything about it until after he died. Had he faced the death penalty, they say they would have appealed to the governor, but it's not clear what they could have said.
  • Leo Frank was actually lynched in prison (motivated at least in part by anti-Jewish sentiment) despite the fact that a client of attorney Arthur Powell had confessed to him.
• If, as a prosecutor, you come to realize that the defendant might be innocent, how much knowledge do you need to have before you are obligated to drop the charges? What about just to inform the defense?
• Tough choice: maybe there are some things more important than a career as an attorney, but is the harm of disclosure even greater than the harm to the wrongly convicted party?