Category Archives: Fifth Amendment

LOS ANGELES Los Angeles Dodgers pitcher Trevor Bauer intends to invoke his Fifth Amendment right against self-incrimination and will answer no questions in the case of a woman seeking a five-year restraining order against him, his attorney said in court Wednesday.

Bauers lawyer Shawn Holley told a judge the only questions he will answer are his name and what he does for a living, and cited a pending criminal investigation by police in Pasadena, California.

The legal team seeking the order for a woman who says Bauer choked her into unconsciousness and punched her in two sexual encounters said that Bauer was the last remaining witness they intended to call at the hearing.

Holley asked Los Angeles Superior Court Judge Dianna Gould-Saltman to allow Bauer to avoid taking the stand entirely, as defendants in criminal cases do.

Normally in civil matters, a witness would invoke the Fifth Amendment on a question-by-question basis.

Gould-Saltman adjourned the hearing for the day, saying she would read legal precedents provided by Holley and issue a decision Thursday morning. The judge might also issue her decision on the domestic violence restraining order Thursday, after hearing final arguments from the two sides.

Bauer, who is fighting the order and has said through representatives that everything that happened between him and the 27-year-old San Diego woman was consensual, has attended all three days of the hearing and had been expected to take the stand.

Most of the hearing has consisted of testimony from the woman herself, along with brief appearances on the stand from the nurse who gave her a sexual assault exam after the second encounter, a doctor called by Bauers team to analyze those findings and the womans best friend.

Major League Baseball put Bauer, 30, on paid administrative leave July 2, a few days after the woman was given a temporary restraining order until evidence could be heard, as is common in such matters.

In her third day on the witness stand Wednesday, the woman said that the satisfaction she expressed to friends when the case first went public was a reaction to her treatment by the media, not happiness that she was taking down the Dodgers pitcher.

It felt good to not see me slut-shamed right off the bat, the woman said under cross-examination from Holley, who read from her text messages sent at the time.

Media is freaking out. On my side, one of the womans texts read. Its the best thing I could have hoped for.

Holley asked, What does the media freaking out have to do with your safety?

The woman replied that she had felt Bauers representatives had shamed her with a statement saying the nights the two spent were wholly consensual, and she was happy to see that the media, and the public on social media, were not attacking her.

Holley asked the woman why she felt she needed protection from Bauer when he had made no contact with her in nearly a month when she filed for the order.

That was what worried me, the woman replied, saying Bauers silence after constantly checking on her in the days following the second incident made her fear he was planning something and might seek her out in San Diego.

Did you have some reason to believe he was going to come to your house 130 miles away? Holley asked.

Yes, I did, she said.

Holley also pointed out lies that the woman acknowledged telling her closest friends in texts about when and where the meetings with Bauer happened.

The woman said that one friend had warned her not to go to Bauers home in Pasadena, so she told her the first encounter happened in San Diego. Another friend was one of her bosses, the woman said, and she had to lie about the timing of the second Bauer night because she had called in sick.

Holley also asked the woman why she had acknowledged in messages that she was watching Bauers games despite saying she wanted nothing to do with him.

You have testified previously that you had to delete all your communications with him, Holley asked, but you still wanted to watch him pitch, right?

Possibly, the woman answered.

The Associated Press does not typically identify people who say they have been victims of sexual assault.

Bauer agreed to a $102 million, three-year contract to join his hometown Dodgers earlier this year after winning his first Cy Young with the Cincinnati Reds last season.

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Attorney: Bauer plans to invoke Fifth Amendment - The Dispatch - The Commercial Dispatch

Content warning: This story includes allegations of sexual assault that may be difficult to read and emotionally upsetting.

The attorney for Los Angeles Dodgers pitcher Trevor Bauer told the Los Angeles Superior Court judge that Bauer will take the Fifth Amendment when he takes the stand Thursday in the hearing of a woman seeking a five-year restraining order against him.

Bauers attorney, Shawn Holley, told Judge Dianna Gould-Saltman on Wednesday that Bauer will only say his name and what he does for a living, citing a pending criminal investigation by police in Pasadena, Calif. The Fifth Amendment of the U.S. Constitution protects against self-incrimination. There are still ongoing investigations by the Pasadena Police Department and MLB into allegations of sexual assault, but Bauer has yet to be formally charged with a crime.

The 27-year-old San Diego woman accusing Bauer of sexual assault concluded her three days of testimony Wednesday. Bauer, who is currently on paid administrative leave which has been extended to Friday, has been present in court during the womans testimony. Bauer's representatives have repeatedly said everything that occurred during the two encounters was consensual.

Holley continued a second day of cross-examination of the woman by reading from text messages the woman sent friends when court documents were first filed in June. Holleys questioning suggested the woman was not seeking protection by filing those documents, but was trying to hurt Bauer.

Holley read texts from the woman which included statements such as Media is freaking out. On my side, and Its the best thing I could have hoped for, to which the woman clarified by saying she was happy to see the media and the public on social media were not attacking her.

The woman alleges that Bauer punched her, choked her with her own hair until she lost consciousness, then had anal sex with her, which she had not consented to. On Tuesday, the woman testified that she was just as afraid of the social consequences as the physical ones of coming forward about her meetings with Bauer. She then described the physical pain and trauma she suffered following a second meeting with Bauer, and the subsequent hours-long sexual assault exam.

The woman was granted a temporary restraining order until a hearing could be held and evidence presented for a long-term order. Holley asked the woman why she felt she needed protection from Bauer when he made no contact with her in nearly a month when she filed the order.

That was what worried me, the woman replied, saying Bauers silence after constantly checking on her in the days following the second incident made her fear he was planning something and may seek her out in San Diego.

Did you have some reason to believe he was going to come to your house 130 miles away? Holley asked.

Yes, I did, she said.

The Washington Post reported on Saturday that Bauer had a temporary order of protection placed against him in June 2020, after an Ohio woman accused him of physical abuse and threatening her.

The legal team seeking the order for the woman said that Bauer was the last remaining witness they intended to call at the hearing. Holley asked Gould-Saltman to allow Bauer to avoid taking the stand entirely.

Most of the hearing has consisted of testimony from the woman herself, along with brief appearances on the stand from the nurse who gave her a sexual assault exam after the second encounter, a doctor called by Bauers team to analyze those findings, and the womans best friend.

Information from the Associated Press was used in this report.

(Photo: Meg Oliphant / Getty Images)

Read more here:
Dodgers Trevor Bauer to take Fifth Amendment in court hearing Thursday - The Athletic

R. Kelly's former tour manager Demetrius Smith points out Kelly after asking him to take off his mask during Kelly's sex abuse trial at Brooklyn's Federal District Court in New York, U.S., August 20, 2021 in a courtroom sketch. REUTERS/Jane Rosenberg

R. Kelly's former tour manager was forced to testify about the night R. Kelly learned 15-year-old Aaliyah was pregnant.

The manager said he bribed an official for a fake ID so Kelly could marry the teen.

Demetrius Smith tried to plead the fifth, but was ordered to take the stand.

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Demetrius Smith, R. Kelly's former tour manager, was ordered to take the stand Friday to tell jurors about the night the singer learned he had gotten 15-year-old Aaliyah pregnant.

Smith, who started working with Kelly in the '80s when he was performing at talent shows and in subway stations, tried to assert his Fifth Amendment privilege not to self-incriminate, but was granted immunity from prosecution and ordered on Friday to testify against the singer.

Kelly is on trial for a long list of alleged crimes, including charges related to bribing a government official to obtain a fake ID so he could take Aaliyah as his child bride. Smith reluctantly admitted that he was the man who found and paid the official - a welfare office employee - for the ID so Kelly could marry Aaliyah and avoid prosecution for having sex with a minor.

Kelly denies any wrongdoing.

Throughout his time on the stand, Smith pushed back at the prosecution's questioning. He said he didn't want to be there and that he was "uncomfortable" talking about Aaliyah without her parents there.

"I feel like I'm on trial for Aaliyah. Shit," he said, at one point.

Judge Ann Donnelly insisted he answer, and Smith shared details about the illegal relationship between young Aaliyah and Kelly. It is illegal for an adult to have sex with a 15-year-old in Michigan and Illinois.

Smith said he and Kelly met the Aaliyah through her uncle, Barry Hankerson, who was also Kelly's manager.

Kelly and Smith flew to Aaliyah's home in Detroit in 1992 to listen to her sing - at her uncle's request. The meeting went well, Smith said, describing Aaliyah's voice as "angelic." Kelly then began writing and producing her music.

Story continues

Smith first told the court Friday that Kelly's time with Aaliyah, including when Kelly asked to be alone with her, was all about her music, but then the prosecution pressed him on the issue, showing him his prior Grand Jury testimony.

Eventually, Smith admitted that he had confronted Kelly at least once about his relationship with Aaliyah after feeling they were "too playful." He recalled at one point asking Kelly if he was "messing around" with her.

Smith said he believed Kelly when he denied that was the case, but then one night in the middle of a performance in Orlando in August of 1994, Kelly made him immediately arrange for travel back to his home in Chicago.

"Aaliyah's in trouble, man. We need to get home," Smith testified that Kelly told him that night.

Cook County clerk Carolyn Harris testifies about the 1994 marriage between R. Kelly and Aaliyah during Kelly's sex abuse trial at Brooklyn's Federal District Court in New York, U.S., August 20, 2021 in a courtroom sketch. REUTERS/Jane Rosenberg

Smith testified at first, Kelly didn't share any details about what was wrong with Aaliyah, but ordered him to book a round-trip flight.

Smith said he wanted to call Hankerson to see what was going on with Aaliyah, but was told not to. After the show, Kelly, Smith, and other employees boarded a plane to Chicago and the singer "cried a lot," admitting to Smith that Aaliyah was pregnant, he testified.

"That was a shock," Smith told the court.

Kelly told Smith that his other manager, Derrel McDavid, was making arrangements for the singer to marry the teenager, "to protect himself, to protect Aaliyah," Smith testified.

When asked what Kelly would be protecting himself against, Smith responded: "Shit. Jail, I guess."

When the plane landed in Chicago, Smith said he urged Kelly not to try and marry the teenager.

"She was too young. He was confused," Smith recalled.

But then Kelly started asking Smith whose "side" he was on, and the tour manager started to feel like he was being pushed out of the singer's life.

To avoid losing his place in Kelly's inner circle, Smith told the singer, McDavid, and Aaliyah that he knew how to get the teenager a fake ID that made her look old enough to legally marry the singer.

He then went to a local welfare office and offered a woman $500 to make her an ID. The group then went to a nearby FedEx or similar shipping store and had an associate make the teen a fake employment ID as backup, before Kelly and Aaliyah went to the Cook County clerk's office to apply for a marriage license.

The clerk accepted the IDs, and the group went back to the hotel suite where a minister performed a ceremony to marry them, Smith said.

A marriage license shown to the jury Friday indicated they were wed on August 31, 1994. Aaliyah's age was listed as 18 - three years older than her actual age.

Aaliyah's underage marriage to Kelly was annulledin February 1995 by her parents. She died six years later, at 22, in a plane crash off the Bahamas.

Court went into recess for the weekend at 5:30 p.m. and the prosecution plans to continue questioning Smith Monday morning.

Kelly's trial is expected to last four weeks.

Read the original article on Insider

Excerpt from:
R. Kelly's former tour manager was forced to testify, said the singer got 15-year-old Aaliyah pregnant - Yahoo! Voices

Bill Cosby may have been released from prison in June, but the 84-year-old is still the target of a civil lawsuit in Los Angeles. In 2014, Judy Huth sued Cosby and claimed he sexually assaulted her at the Playboy Mansion in 1974, when she was 15 years old. At the time, Cosby refused to answer questions for the deposition and the case soon took a backseat to Andrea Constands criminal case against him, which ended in his conviction.

Now that Pennsylvanias highest court has overturned Cosbys conviction, the comedian has been given another opportunity to testify in Huths civil suit. However, this week Cosbys lawyers addressed a judge for the first time since his prison release and said he will again decline to speak on the sexual assault allegations, exercising his Fifth Amendment right.

[Cosby] does not agree that merely because the Pennsylvania Supreme Court vacated [his] criminal conviction for a single offense, allegedly arising from an incident that occurred in 2004, [he] no longer enjoys a Fifth Amendment right to remain silent, Cosbys attorney Michael Freedman told the judge ahead of his Friday hearing (Aug. 13).

This is particularly so where numerous states have no criminal statutes of limitations for sex crimes, he continued. It is well-settled that the Fifth Amendment protects both the innocent and the guilty. Having already been forced to face a malicious criminal prosecution that resulted in an unlawful three-year incarceration, [Cosby] is not confident that such a risk does not still exist in this jurisdiction and others.

Freedman added, Indeed, prior to a stay being entered in this case, LAPD claimed that the Huth matter is an open criminal investigation. Thus, [Cosby] anticipates that if he is forced to sit for a deposition, he will exercise his Fifth Amendment guarantees absent a court order ruling that he has no Fifth Amendment right in this jurisdiction or any others.

A California law previously extended the statute of limitations involving claims of childhood sexual assault. During his hearing today, Freedman said Cosby plans to lodge a number of constitutional challenges and urge the court to consider lifting the stay on Huths suit against him.

Read more:
Bill Cosby to invoke Fifth Amendment in civil lawsuit - REVOLT TV

Real Housewives of Beverly Hills star Erika Jaynes husband Thomas Girardi has officially invoked his fifth amendment right not to testify.

According to court documents obtained by Radar, the once-respected lawyer notified a federal court judge he had no intention of talking about millions that were meant for orphans and widows.

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Source: Northern District of Illinois: US District Court

He signed a declaration reading, I, Thomas Girardi hereby state under penalty of perjury that, if called as a witness in pending contempt proceedings I will follow the advice of my counsel and invoke my constitutional rights to remain silent.

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Girardi, before he had his law license suspended, represented family members who lost their loved ones in a plane crash. He hashed out a multi-million-dollar settlement, but his former clients claim they never received the full amount.

In court, Girardi and Jayne are accused of embezzling the money to help pay for their lavish lifestyle.

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The judge found Jaynes husband in contempt of court along with two partners at his firm. One of the men included his former bookkeeper David Lira.

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Recently, Girardis lawyer said his client planned to invoke his Fifth Amendment right against self-incrimination. The attorney pointed out 82-year-old Girardi was dealing with health issues and couldnt testify. She claimed, "He does not recall one of my conversations with him between conversations.

For his part, Lira claims he has no idea where the millions went. The fight to find the money continues. As Radar previously reported, earlier this year, Girardi was forced into Chapter 7 bankruptcy by his creditors.

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The court appointed a trustee to take over control of Girardis finances. He is currently trying to sell off assets to pay off his debts. He placed his Pasadena mansion up for sale and is selling off his prized possessions at auction.

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The Bravo star has publicly denied knowing anything about her husbands finances. She has yet to respond in court. Last year, as Girardis world was falling apart Jayne slapped him with divorce papers after 21 years of marriage.

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She is demanding spousal support but the case was put on hold due to the bankruptcy.

The rest is here:
'RHOBH' Star Erika Jayne's Husband Thomas Girardi Pleads The Fifth Over Questions About Orphan's Missing Money - Radar Online

Bill Cosby is out of prison but not clear of trouble. For the first time since June, when he was released from a Pennsylvania jail, his lawyers have addressed a judge. Specifically, a judge serving the Los Angeles Superior Court, where Cosby currently faces a civil suit brought by Judy Huth, who alleges being sexually assaulted by him at the Playboy Mansion in 1974.

The Huth case, originally filed in 2014, has been on hold for years. At one point, Cosby was ordered to sit for a deposition, and he did, but refused to answer questions. The litigation then took a back seat to Cosbys criminal problems. Now that Cosbys conviction for assaulting Andrea Constand has been overturned by the Pennsylvanias highest court because of an old non-prosecution agreement in that jurisdiction, Cosby is free, at least in theory, to testify in civil cases. (Recall, for example, how O.J. Simpson had to take the witness stand in a wrongful death suit he eventually lost after he beat a criminal case for the murders of his ex-wife and Ron Goldman.)

But although he may be contemplating going back on tour, Cosby, through his attorney Michael Freedman, tells a Los Angeles judge that he will continue to resist speaking about his alleged assaults.

Defendant does not agree that merely because the Pennsylvania Supreme Court vacated Defendants criminal conviction for a single offense, allegedly arising from an incident that occurred in 2004, Defendant no longer enjoys a Fifth Amendment right to remain silent, states a status conference report made public Wednesday. This is particularly so where numerous states have no criminal statutes of limitations for sex crimes. It is well-settled that the Fifth Amendment protects both the innocent and the guilty. Having already been forced to face a malicious criminal prosecution that resulted in an unlawful three-year incarceration, Defendant is not confident that such a risk does not still exist in this jurisdiction and others.

Cosbys lawyer even points to the potential for prosecution in Los Angeles.

Indeed, prior to a stay being entered in this case, LAPD claimed that the Huth matter is an open criminal investigation, continues Freedman. Thus, Defendant anticipates that if he is forced to sit for a deposition, he will exercise his Fifth Amendment guarantees absent a court order ruling that he has no Fifth Amendment right in this jurisdiction or any others.

(A Cosby spokesperson did later note to The Hollywood Reporter that theres documentation how that LAPD investigation had concluded.)

The status report also highlights another coming development in this case involving Huth, who is represented by Gloria Allred.

At the beginning of 2020, California civil law was amended to allow victims of childhood sex abuse to sue over very old events. Specifically, the amended law allows such a plaintiff to sue upon becoming an adult within five years of discovering a psychological injury caused by the sexual assault.

Huth says she was 15 years old at the time of the alleged assault (Cosby is disputing her age) so this amended law opens the door to a potentially viable case. Cosbys attorney appears to agree that the look-back provision, which largely abolished the statute of limitations, applies in cases like the Huth suit, not litigated to finality.

But in the face of this change in law (plus others, as in New York, which has similarly gotten rid of the statute of limitations for childhood sexual assaults), Cosby wishes to make a constitutional challenge. A judge is told that neither the California Supreme Court nor the United States Supreme Court has addressed the constitutionality of such an amended law presumably whether it violates due process. With respect to a nearly five-decade-old occurrence, Cosbys attorney anticipates making the argument its legally out of bounds.

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Bill Cosby to Invoke Fifth Amendment Due to Fear of New Prosecution - Hollywood Reporter

Defenders of the often-overlooked Third Amendment to the U.S. Constitution are springing into action to defeat what is arguably the biggest threat to their cause in decades: the federal government's eviction moratorium.

Last week, the Centers for Disease Control and Prevention (CDC) issued a ban on evicting non-paying tenants living in counties with a substantial number of COVID-19 cases provided that those tenants sign financial hardship declarations.

In response, the Alabama Association of Realtors and the Georgia Association of Realtorswho already sued over the previous, nearly identical CDC eviction ban that expired on July 31filed an emergency petition last week in the U.S. District Court for the District of Columbia asking that the new moratorium be set aside.

Rallying to the side of the realtors was the normally idle Third Amendment Lawyers Association (ALA), which filed an amicus brief in the case on Friday.

"Ordinarily, the eviction process would play out in the courts. The CDC eviction moratorium prevents this," wrote the ALA. "Plaintiffs are being forced to house individuals, i.e. quarter them, without their consent. Given the size of the population at issue, some of these tenants are bound to be soldiers."

That, the group argues, violates the Third Amendment's express prohibition on quartering soldiers in private homes in times of peace without the consent of the owner.

This is a novel claim, to say the least. The Third Amendment, as ALA notes in its brief, is the "runt piglet" of the Bill of Rights and is rarely invoked in normal litigation.

That's certainly true for the legal challenges to the CDC's eviction moratorium. Plaintiffs have generally stuck to more common legal arguments, including that the agency's order goes beyond the powers given to the CDC by Congress, and/or that it violates the Fifth Amendment's prohibition on taking property without just compensation.

Despite the creativity of ALA's argument, there's reason to doubt that the CDC's eviction order will fall on Third Amendment grounds.

"My first-glance interpretation of 'quartering' is that it refers to the government placing a soldier in some house, not some house being rented, in his private capacity, by someone who happens to be a soldier," Eugene Volokh, a law professor at the University of California, Los Angeles, wrote at The Volokh Conspiracy. "So if my tenant happens to be a soldier, and he forfeits my initial consent by failing to pay his rent (and thus breaching the lease agreement), his continuing to live in my 'house' doesn't involve his 'be[ing] quartered.'"

Whether or not ALA's argument sways any judges, its brief is a reminder of just how many different ways the Constitution protects the rights of property owners. Among those protections is the right to exclude people from your property, be they delinquent renters or unwelcome redcoats.

Link:
Is the CDC's Eviction Moratorium a Third Amendment Violation? - Reason

Thomas L. Knapp| Guest Columnist

As the U.S. Centers for Disease Control moves to extend a federal eviction moratorium that (including its original CARES Act version) has now been in place for most of 18 months and that President Joe Biden himself concedes is "not likely to pass constitutional muster," most of the public rhetoric and advocacy boils down to "what about the tenants?"

That's understandable. Nobody at least nobody who's ever faced the prospect of homelessness and has any heart at all wants to see tenants kicked to the curb with nowhere to go, especially tenants who, through no fault of their own, have been pushed into a financial corner by nearly a year-and-a-half of lockdowns, business closures, and other fallout from the COVID-19 pandemic.

Much less often asked, though, is the question "what about the landlords?" When that question does come up (and it's coming up in the courts again as the National Apartment Association and other landlord groups sue for compensation pursuant to the Fifth Amendment's "takings" clause) one can almost literally hear the world's smallest violin tuning up in the background.

I'm aware of, and reasonably well versed in, the centuries-long arguments over the ethics of rent and of property in land. I don't aim to settle those arguments here.

More: End of eviction moratorium likely will put pressure on Brevard renters

Given the long history of land ownership and home/apartment rental in the United States, though, it seems to me that the plaintiffs have a good case, and that the American "landlord class" deserves a far more sympathetic ear than it's had lately.

I've been a renter for most of my adult life, including times when I could have swung a down payment and qualified for a mortgage to own instead of rent. Renting made more sense for various reasons, including my somewhat itinerant lifestyle following jobs, following love, etc.

Most of my landlords haven't been giant corporations with deep pockets. They've been regular people who worked hard, put their money into real estate down payments, and tried to keep that real estate occupied by paying tenants until the property was paid off and might perhaps turn a profit or be sold. And even the giant corporations with deep pockets are providing a service to willing customers. They're not charities and shouldn't be expected to act like charities.

More: Torres: Lousy jobs for lousy pay + outrageous housing costs = employee shortage

During the eviction moratoria, landlords haven't shed themselves of responsibility for keeping the water running, keeping the heat and air conditioning in working order, and making mortgage payments. They're still paying, or trying to pay, those costs. But they're not getting the rent that tenants freely agreed to pay before moving in.

If you're looking for a solution that pleases and protects everyone, I'm sorry to say you're reading the wrong column. I have no such solution to offer.

However, given that the government's solution to every COVID-19 problem so far has been to kick the printing presses into high gear and mail out checks, it seems to me that America's landlords have a better case than most in suing for checks of their own.

Thomas L.Knapp(Twitter: @thomaslknapp) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.

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In Defense of landlords during the eviction moratorium | Opinion - Florida Today

Listen to SocioEconomic Research Prof. Oren M. Levin-Waldmans discussion of his most recent essay, Violating the Constitution Does Not Protect Our Democracy this Wednesday, August 11, 2021. He can be heard every second Wednesday morning from 10-11am EST on the Westchester On the Level broadcast. The broadcast is heard Live or On Demand by clicking onto the hyperlink noted http://tobtr.com/s/11980446. Please note that the hyperlink changes every second week and is specific to the essay discussed. Listeners are welcome to share their inquiry with respect to the topic of the subject discussed. The call-in number to the broadcast is 1-347-205-9201.

NEWARK, NJ August 10, 2021 It is ironic that those who claim that our democracy is threatened, first by the election of Donald Trump and then the events of January 6th 2021, appear to support violating the constitutional separation of powers when it suits them. If not ironic, then it is sheer hypocrisy. Lets state this up front, in a time of crisis, like the current pandemic, the government should provide renters with the means to pay their rent. If a moratorium on evictions is to be passed by the legislative branch, then landlords need to be compensated.

To simply extend the moratorium through executive order not only violates the separation of powers, but it violates the contract clause of the Constitution, and Fifth Amendments taking clause. First, lets talk about the separation of powers. Article one of the constitution vests authority to spend money with Congress. If this moratorium involves the expenditure of money, either to renters or landlords, then the president on his own has no authority to spend it. Rather Congress has to appropriate money, which means that Congress has to act.

Article I, section ten of the Constitution, otherwise known as the contract clause, says that no state may pass a law impairing the obligation of contracts. A law could be a statute or an administrative rule. From this, we could infer, on the assumption that leases between tenants and landlords is a contract, states would have no real authority to pass their own moratoria on evictions. Arguably since it does not mention the federal government, then Congress could act? And yet, since tenant leases are state and local matters, it most likely was never contemplated that the federal government would have reason to interfere with contracts.

It is really the Fifth Amendment that is challenged here. It says: nor shall private property be taken for public use without just compensation. This is the final line of a larger clause which deals with the concept of due process. If through executive order the moratorium on evictions is being extended, that might be tantamount to a taking without just compensation. In effect, it is confiscation of private property. Progressives no doubt justify this with the claim that landlords are wealthy and can afford it. After all, isnt enabling out of work tenants the right to remain in their apartments without paying rent a compelling public purpose?

The laws of eminent domain posit that property may be seized for a public purpose, so long as the owners receive just compensation. In the absence of funds to landlords to cover rents that are in the arrears, there has been no just compensation. Moreover, no procedures have been put in place to allow landlords to challenge this moratorium which is nothing more than an administrative rule from the CDC.

The reason why the takings clause is part of the larger amendment dealing with due process is that the procedures that need to be in place allowing property owners to challenge such actions is to protect individuals from the arbitrary exercise of power and authority. Otherwise, in the absence of due process, the state could simply throw somebody in jail without charges or trial. In other words, it would be a return to Henry VIIIs use of the laws of attainder. If he wanted somebodys property because he coveted it, he simply seized it. If you had a problem with that, why not have a secret trial prior to your arrest? The reason for this provision is to make it sufficiently costly to exercise the laws of eminent domain that the sovereign will have to be absolutely certain it is for a public purpose.

Granted, renters may need relief, but so too do landlords. Not all are wealthy billionaires. Rather many may be individuals and/or families who made an investment whereby the rent was needed to cover mortgage and maintenance. The calculation, in addition to appreciation of value, might have been that in retirement after mortgages were paid off, rental income would subsidize retirement savings and Social Security. Under the current moratorium, owners of property cannot even sell their property because their tenants effectively have the right to stay.

A free market economy relies on private property to function, and property cannot be protected if contracts can be interfered with. Why is property so central to a free market economy? Because one cannot sell in the marketplace what one does not own. Without property, the market falls apart.

Lets start from the premise that the Constitution is about protecting individual rights. Because the separation of powers requires consensus to get anything done, the system is so robust that it protects rights by default because it can only act in incremental steps. Then again, what is a right? A right is a zone of protection society places around an interest. Basic human agency allows for us to pursue our interests as an expression of that agency. In a rights based society, government is obligated to respect that agency. A right that is elevated to a property right is effectively receiving an extra layer of protection. Again, the purpose of the Fifth Amendment is to protect against the exercise of arbitrary power and authority.

The extension of the moratorium on evictions may be arbitrary because it bypassed the legislative process. Because laws of eminent domain typically trigger procedures to challenge the decision, due process has effectively been given. The same cannot be said about this moratorium, especially given that it lacks transparency. Progressive members of Congress like executive actions for the same reason they want the Supreme Court to protect a womans right to choose. They want to be absolved of any responsibility for actually doing their jobs of legislating properly. Of course, there is nothing new here; it has been going on for years. But if they want to be absolved of responsibility, then how can they complain about threats to our democracy? Democracy requires adherence to procedure. The threat to our democracy is an overreaching executive branch that hides under the cover of a pandemic.

There is still a problem here. First, the Supreme Court has already said the president has no authority to extend the moratorium. Second, and more importantly, even if the pandemic rises to the level of national emergency, only Congress has the power to declare a national emergency; not the president.

In some ways, this issue is similar to DACA which Trump ended and attempted to send back to Congress where it rightfully belongs. Emergency legislation to prevent people from being thrown into the streets also belongs with Congress. The truth is that both issues are hot potatoes for Congress to seriously address. But please dont insult our intelligence by telling us how concerned you are about the integrity of our democracy.

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Author of Restoring the Middle Class Through Wage Policy: Arguments for a Middle Class

https://www.palgrave.com/gp/book/9783319744476;

Understanding Public Policy in the United.States.

https://tophat.com/marketplace/social-science/political-science/textbooks/understanding-public-policy-in-the-united-states-oren-levin-waldman/3473

The Minimum Wage: A Reference Handbook

https://www.abc-clio.com/ABC-CLIOCorporate/SearchResults.aspx?type=a

Wage Policy, Income Distribution and Democratic Theory

.http://www.routledge.com/books/details/9780415779715/#reviews

The Case of the Minimum Wage: Competing Policy Models

https://www.sunypress.edu/Searchadv.aspx?=Oren+M.+Levin-Waldman&txtISBNSearch=&txtKeyword_summary_or_toc=&txtKeyword_subject=

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BIOGRAPHY

Oren M. Levin-Waldman is faculty member in the School of Public Affairs and Administration at Rutgers University-Newark, and Socioeconomic Research Scholar at Global Institute for Sustainable Prosperity Research.

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Learn more at the professors Website: https://www.econlabor.com/. Direct email to olevinwaldman@gmail.com

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Oren M. Levin-Waldman, Ph.D

https://www.econlabor.com/

Office: (914) 629-6351

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Violating the Constitution Does Not Protect Our Democracy By Oren M. Levin-Waldman - Yonkers Tribune.

PHILADELPHIA A Philadelphia grand jury has recommended criminal charges against three former longtime city homicide detectives for perjury in a landmark murder case, accusing them of lying on the witness stand.

The allegations, unveiled in a presentment filed by the district attorneys office on Friday and obtained by The Philadelphia Inquirer, represent an extraordinary development in a city that has seen dozens of old homicide convictions overturned in recent years but no significant legal repercussions for the police or prosecutors involved in building those cases. Many of them have since been accused of misconduct in court documents filed by District Attorney Larry Krasner.

The grand jury presentment marks a stunning turnabout for Martin Devlin, Manuel Santiago, and Frank Jastrzembski, who each served more than 25 years in the Philadelphia Police Department. Devlin for years was viewed as a star investigator in one of the nations most violent cities, specializing in cold cases and complex investigations that no one else could crack.

But in recent years, questions have emerged about the detectives investigative practices. Krasners Conviction Integrity Unit has helped overturn at least four cases they worked on, contending that the convictions were marred by coerced confessions, fabricated or hidden evidence, or secret deals with key witnesses.

These charges are an indication that a Philadelphia jury, in this case a grand jury, can carefully look at evidence and can understand that the law must apply equally to people, whether they are in law enforcement, (or) supposed to be served by law enforcement, Krasner said during a news conference Friday.

The detectives, who face charges of perjury and false swearing, have consistently denied wrongdoing. They turned themselves in at a Northeast Philadelphia police district Friday afternoon. It was not clear when they might be arraigned.

Their attorney, Brian McMongale, said his clients were innocent of these charges, adding: These three good men dedicated their lives to seeking justice for victims of crime. In this case they sought justice for a woman who was brutally raped and murdered.

Pejury, a third-degree felony, is punishable by up to seven years in prison upon conviction.

Questions about the detectives investigations surfaced during the 2016 retrial of Anthony Wright, who was convicted in 1993 of the rape and murder of 77-year-old Louise Talley in Nicetown. Wrights appellate attorneys later discovered DNA evidence that proved he had not raped Talley. Wrights conviction was overturned, but then-District Attorney Seth Williams office sought to convict him again, saying the results did not preclude him from being an accomplice to the crime.

He was quickly acquitted in August 2016, and afterward some jurors took the remarkable step of standing beside Wright and publicly criticizing prosecutors for continuing to pursue what they called a weak case.

Williams said Friday that he did not recall the case and could not comment.

There are many (cases) that I remember very specific details, he said. This is not one of them.

The felony perjury charges, and misdemeanor charges for false swearing, relate to the detectives testimony in that retrial as well as their testimony in a 2017 civil deposition. The charges were filed mere days before the expiration of the five-year statute of limitations.

Wright, who served 25 years of wrongful imprisonment, has long alleged that detectives fabricated evidence and subjected him to a brutal, physically abusive interrogation before forcing him to sign a false confession.

He settled a civil lawsuit against the city for $9.8 million, but said its now time for those who framed him to face justice.

This will mean everything to me if those guys individually can be held accountable for what they did to me. And their name is on so many peoples paperwork that were wronged, he said, adding that the losses accrued over 25 years are hard to calculate. He missed his mothers funeral, and watching his son grow up. The harm that was done we need to let people know this cannot be tolerated.

At Wrights retrial in 2016, Devlin testified that he had never threatened an interview subject, and that he had transcribed Wrights confession verbatim. Then, he agreed to a challenge by lawyer Samuel Silver: to transcribe the confession again in real time as Silver read it aloud. He got just six or seven words down on the page though, before it became clear he could not keep up.

There were also allegations of perjury involving Santiago and Jastrzembski, raised in the form of a disciplinary complaint filed by the Innocence Project in 2018 against Assistant District Attorney Bridget Kirn. (No action was taken publicly against Kirn by the Disciplinary Board of the Supreme Court of Pennsylvania.)

The complaint alleged that Kirn failed in her duty to correct false testimony by Santiago and Jastrzembski when they told jurors they had not been briefed on the damning DNA tests conducted after Wrights first conviction. The tests showed that semen taken from the victims body matched Ronnie Byrd, a Nicetown crack user not Wright.

It also showed that wearer DNA on bloody clothing Jastrzembski said he had recovered from Wrights home, an aspect of his supposed confession, was a match for the victim, and not for Wright.

The complaint noted that a year after the retrial, during depositions for Wrights civil lawsuit, both detectives acknowledged that the district attorneys office had informed them of the test results in pretrial briefings. Kirn and other detectives confirmed that in their depositions.

All of them perjured themselves during their testimony at the retrial, said Peter Neufeld, co-founder of The Innocence Project and one of Wrights lawyers. They perjured themselves on all kinds of things. Jastrzembski perjured himself when he said he found clothing he didnt find, and Santiago and Devlin both perjured themselves about the way the interrogation went down. They all lied.

The grand jury said it believed charges were necessary to correct the historical record and hold the three former detectives Santiago, Devlin, and Jastrzembski accountable for lying under oath to condemn an innocent man and cover up their wrongdoing, and for perverting the integrity of the law.

The detectives have been the subject of mounting criticism as cases they investigated were revealed to be some of the most shocking wrongful convictions in Philadelphia history.

Media coverage over the years portrayed Devlin as a brilliant eccentric Detective Perfect who wore a loud shirt and carried a shotgun when he allowed a reporter to ride along as he chased a suspect in North Philadelphia. He retired in 1995 and had a storied second act as a detective for the Camden County prosecutors office. An Inquirer profile, written after he helped win the high-profile conviction of Cherry Hill Rabbi Fred Neulander for hiring a hit man to kill his wife, called Devlin street smart and feisty, with intense green eyes that display both the joy and seriousness he brings to the job.

He has been accused of participating in violent interrogations that ended with forced, false statements in at least five different murder cases. In one, Devlin was accused of coercing a false confession from Willie Veasy, while Jastrzembski, the lead detective, allegedly hid evidence that cast doubt on Veasys involvement, in violation of the Constitution.

Veasy spent 27 years in prison but was exonerated in 2019. He settled a civil lawsuit against the city for $5 million earlier this week.

Jastrzembski and Santiago were among three detectives who refused to testify in a 1994 court proceeding about a murder case they investigated, instead invoking their Fifth Amendment right to avoid incriminating themselves. In that case, Commonweath v. Percy St. George, there were also suggestions of perjury as the detectives had testified to taking statements that witnesses said were fabricated or coerced.

Marc Bookman, then a public defender on the case and now the executive director of the Atlantic Center for Capital Representation, said that case should have led to punishment decades ago.

The fact that all these cops were guilty of misconduct was not a secret, Bookman said. It all took place in open court. In a real criminal justice system, the DAs office would have done a full investigation and probably ended up prosecuting the police. But Philadelphia during those years was a rigged town there was no oversight.

The two detectives also built the case against Jimmy Dennis, whose murder conviction was vacated after he spent 25 years on death row. Like Veasy, Dennis had compelling alibi evidence that was in the possession of police or prosecutors but was not disclosed at his trial. Santiago and Jastrzembski retired in the late 1990s and continue to collect pensions from the city.

The detectives arrest was welcome news to Walter Ogrod, who spent 23 years on death row for the murder of 4-year-old Barbara Jean Horn based in part on a confession taken by Devlin and his then-partner Detective Paul Worrell one Krasners office now contends was false and coerced. Ogrod was exonerated last year.

In his view, perjury charges would be a fair starting point.

Whats the statute of limitations for attempted murder? he said. (Its five years in Pennsylvania.) Im an innocent man and what did they go for? Death. They wanted to kill an innocent man.

2021 The Philadelphia Inquirer. Visit inquirer.com. Distributed by Tribune Content Agency, LLC.

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3 former Philly homicide detectives accused of perjury in the retrial of an innocent man - The Bakersfield Californian