Category Archives: Fifth Amendment

Section 446 of the California Code of Civil Procedure concerns the verification of pleadings. Subdivision (a) provides that an answer to a complaint generally must be verified in either of two following circumstances:

The first exception does seemingly applies to any party, including a party that is not an a natural person. In a recent case, however, the state argued that the exception did not apply to corporations because corporations have no privilege against self-incrimination under the Fifth Amendment to the U.S. Constitution. Braswell v. United States, 487 U.S. 99 (1988).

The Court of Appeal, however, rejected the state's argument:

"Section 446, subdivision (a) does not refer to a 'person' being compelled to be a witness against themselves. Instead it refers to a 'party' who might be subjected to a criminal prosecution. How the word person has been interpreted in the context of the constitutional privilege is immaterial."

Paul Blanco's Good Car Company Auto Group v. Superior Court,Cal. Ct. App. Case No. A159623 (Oct. 20, 2020). The Court made it clear that it was not extending the privilege against self-incrimination to corporations and that corporations will likely have to provide responses under oath in discovery.

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Court Holds That Corporation Need Not Verify Its Answer - JD Supra

WINCHESTER A driver is accused of leading police on a chase at speeds of up to 105 mph for four or five miles on Interstate 81 and Martinsburg Pike (U.S. 11) beginning at 11:25 p.m. on Saturday.

Deputy J.T. Fletcher wrote in a criminal complaint that the pursuit began he tried to stop a vehicle on the entrance ramp at I-81 north by Millwood Pike for an equipment violation. He said the driver, who he identified as Theodore Albert Ledwell, fled and exited the interstate at exit 317 onto Martinburg Pike, where he headed south.

Speeds reached 105 mph during the incident with Theodore going from lane to lane, he said. Deputies were eventually able to box the vehicle in and take Theodore into custody.

Fletcher said after Ledwell was advised of his Fifth Amendment Miranda right against self-incrimination, he admitted to drinking a shot of Fireball a cinnamon-flavored whiskey smoking marijuana and taking a pill of a substance unknown to him. Fletcher said Ledwell was nodding off, had trouble standing and had glassy eyes during the interrogation.

Ledwell was charged with eluding police, reckless driving, driving under the influence and disregarding a signal from a police officer. The 33-year-old Ledwells driving record includes multiple convictions for driving with a suspended or revoked license, driving without insurance, driving with an expired registration and driving with improper headlights.

Ledwell, of the 200 block of Cloud Street in Front Royal, was being held without bond at the Northwestern Regional Adult Detention Center on Monday night. He is due in Frederick General District Court at 1 p.m. on Feb. 22.

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Driver charged in high-speed chase - The Winchester Star

A prosecutor told a Johnson County judge on Tuesday that Garland Nelson, the man accused of killing two Wisconsin brothers, admitted to authorities that he disposed of their bodies but that Nelson still denies that he killed the pair.

Nelson appeared in person at a 9:30 a.m. hearing in front of Judge Michael Wagner at the Johnson County courthouse wearing an orange jumpsuit with a white face mask. His case has been moved from Caldwell County where he was charged last year.

He faces murder charges for allegedly killing Nicholas and Justin Diemel at his Braymer, Missouri, farm last July.

At Tuesdays hearing, Nelson was flanked by two defense attorneys, and a third-year law student also presented arguments to the court. Coronavirus precautions were taken as all parties were masked, and social-distancing signs were posted in the public seating area.

Patrick Berrigan, Nelsons primary public defender, told the judge that he couldnt set a trial date because the defense had not received all of the evidence from the state to review.

For the life of me, I dont understand what the problem is, Berrigan said. Seldom do we wait a full year before we have full discovery.

Stephen Sokoloff, a special prosecutor assigned to Nelsons case, said the contents of a computer hadnt been turned over, though 7,000 pages worth of police reports and all other evidence was available to the defense.

The majority of Tuesdays hearing focused on two charges Nelson faces for abandonment of a corpse.

The defense argues it would violate Nelsons Fifth Amendment rights for him to be required to report the bodies to local law enforcement because hes charged with more serious crimes like murder.

The state said Nelson couldve reported the bodies anonymously. The judge agreed, and the charges remain pending.

The judge also denied a motion by Nelsons attorneys to allow him to be uncuffed from his waist chains and to have at least one of his hands freed from handcuffs to write notes.

Sokoloff said uncuffing him could present security issues. Wagner said he would speak with his court security staff before making a ruling about shackles at future hearings.

A portion of the hearing also focused on media coverage, with the defense filing an objection to a request to allow a camera in the courtroom filed by News-Press NOW for Tuesdays hearing and all future hearings.

Wagner said its his policy not to allow video cameras for pretrial proceedings but that the issue would be revisited at trial. The Missouri Supreme Court has adopted a rule that permits cameras into the courtroom under a case-by-case basis and that prohibits a blanket prohibition of all media coverage.

Nelson will next appear in court on Tuesday, Dec. 1, when the court will hear testimony from the Caldwell County sheriff about jail procedures. Nelsons defense team has asked the judge to order contact visits because they will spend hours reviewing material.

Berrigan said current jail policy does not permit contact visits because of COVID-19.

The final motion argued was a defense request to allow Nelson to appear in person at all future hearings. Sokoloff said the state agrees in principle, but that stance may change because of the coronavirus pandemic. Wagner ordered that Nelson shall appear in person for now, but he reserved right to change his ruling.

Nelson must quarantine for 14 days each time he returns to the Caldwell County Jail, Sokoloff said.

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Prosecutor: Nelson admitted to disposing of brothers' bodies - News-Press Now

Kerrville Police Department officers have announced arrests in the death of 2-year-oldGideon Barideaux, whose death was ruled a homicide.

On Tuesday, October 20, 2020, Jennifer Denise Barideaux, 34, the mother of Gideon Barideaux, and her boyfriend, Tadeo Raymond Garces Jr., 37, were arrested and charged with Tampering with Physical Evidence, a third degree felony, KPD Sgt. Jonathan Lamb said.

Barideaux is being held in the Bexar County Jail in San Antonio pending a $15,000.00 bond. Garces is being held in the Kerr County Jail on a $45,000.00 bond.

The arrests are the result of an ongoing investigation of an Aug 6, 2020 incident in which KPD offers were responded to a call at approximately 9 p.m.., Lamb said.

"Kerrville Police Department officers were called to an apartment in the 3300 block of Legion Drive regarding a child with injuries. The childs mother, Jennifer Barideaux, reported that the injuries were the result of an accidental fall earlier in the day," Lamb said. "The child, Gideon Barideaux, 2 years of age, was transported to the Peterson Regional Medical Center by Kerrville EMS, and later transported by air ambulance to University Hospital in San Antonio."

According to Lamb, officers and investigators, as well as medical staff, recognized that Gideons injuries were not consistent with an accident. Investigators immediately began an investigation in order to determine how Gideon became injured, and to identify those responsible.

During the course of the investigation it was discovered that Tadeo Garces Jr. and Jennifer Barideaux were with Gideon when he sustained the injuries that led to his death. Garces and Barideaux were interviewed by KPD Criminal Investigations Unit investigators, and both maintained that the childs injuries were the result of an accidental fall, Lamb said.

Despite the best efforts of hospital staff, Gideon died on Aug. 9. On Aug. 14, the Bexar County Medical Examiners Office determined that Gideons manner of death was a homicide, according to Lamb.

"Forensic medical experts advised that the injuries could not have been caused in the manner Barideaux and Garces claimed," Lamb said.

Kerrville Police Department investigators, working closely with the 216th District Attorneys Office, multiple state and federal agencies, and the Kerr County Sheriffs Office, continued a painstakingly detailed investigation into Gideons death, Lamb said.

"During the course of the investigation, the cell phones belonging to Garces and Barideaux were seized as evidence. A forensic cellphone examination revealed that both suspects had deleted content from the phones related to this investigation," Lamb said. "As a result, KPD investigators obtained arrest warrants for Barideaux and Garces for Tampering with Physical Evidence."

On October 20, 2020, both Barideaux and Garces were arrested. Barideaux was taken into custody in San Antonio, Texas, with the assistance of the United States Marshals Fugitive Task Force. Barideaux has invoked her Fifth Amendment rights and continues to refuse to cooperate in this investigation, Lamb said.

Garces was already in custody at the Kerr County Jail for unrelated charges when he was served with his arrest warrant. His bond was set at $45,000.00 due to his extensive criminal history.

This case remains under investigation and anyone with information in this case is urged to contact the Kerrville Police Department or Kerr County Crime Stoppers at 830-896-8477, please reference Case # 2001577 when leaving a tip. Crime Stoppers will pay up to $5,000 for information leading to the arrest and charges filed on the person(s) responsible for the death of Gideon Barideaux.

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Arrests made in homicide of 2-year-old - Community journal

From Hunters Capital LLC v. City of Seattle, decided Friday by Judge Thomas S. Zilly:

[1.] Procedural Due Process ViolationFirst Cause of Action

Plaintiffs plausibly allege that they had a protected property interest in the full use and enjoyment of their property and that the City's affirmative actions in support of CHOP caused Plaintiffs to suffer a temporary deprivation of those interests.

Specifically, Plaintiffs allege that from June 8 to July 1, 2020, CHOP participants used City-provided barriers, with the City's approval, to block access from their properties to streets, sidewalks, and other public rights-of-way. Many of the Plaintiffs also allege that because of CHOP's existence, and the rampant crime and vandalism that ensued, they were deprived of all (or nearly all) economic use of their properties. At least one Plaintiff alleges that CHOP participants physically invaded its premises by setting up, without permission, a "makeshift medical tent," to which the City provided beds and medical equipment.

Those allegations are sufficient to support Plaintiffs' claim that they were deprived of state-created property interests. See Guimont v. Clarke (Wash. 1993), abrogated on other grounds by Yim v. City of Seattle (Wash. 2019) (holding that "a regulation that compels a property owner to suffer a 'physical invasion' or 'occupation' of his or her property is compensable no matter how weighty the public purpose behind it or how minute the intrusion" and regardless of whether the invasion was "temporary or permanent"); Keiffer v. King County (Wash. 1977) (concluding "[t]he right of access of an abutting property owner to a public right-of-way is a property right" under the Washington State Constitution).

Plaintiffs further allege that "the City provided Plaintiffs with no notice or opportunity to be heard before or after depriving Plaintiffs of the freedom of movement, the right to access their properties, the right to use their properties, and the right to exclude others from their properties." "[I]n the absence of a sufficient countervailing justification for the" City's actions, the Court concludes that Plaintiffs plausibly asserted a procedural due process violation.

[2.] Substantive Due Process ViolationSecond Cause of Action

"[A]s a general matter, a State's failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause." There are, however, certain exceptions to this general rule[, f]or example [if] (1) "[government] officers' affirmative actions created or exposed [plaintiff] to an actual, particularized danger that she would not otherwise have faced," (2) "the injury suffered was foreseeable," and (3) "the officers were deliberately indifferent to the known danger."

Plaintiffs plausibly allege that the City's actionsencouraging CHOP participants to wall off the area and agreeing to a "no response" zone within and near CHOP's bordersforeseeably placed Plaintiffs in a worse position than they would have been in absent any City intervention whatsoever. Their allegations are also sufficient to show that the City acted with deliberate indifference to that danger. See Hernandez v. City of San Jose (9th Cir. 2018) (allegations that officers "shepherded [plaintiffs] into a violent crowd of protestors and actively prevented them from reaching safety even though [the officers] knew the mob had attacked" others earlier, were sufficient to state a substantive due process claim).

[3.] Unlawful TakingThird Cause of Action

Under Washington law, "[t]he right of access of an abutting property owner to a public right-of-way is a property right which if taken or damaged for a public use requires compensation."

Plaintiffs allege that from June 8 to July 1, 2020, the City allowed and encouraged CHOP participants to block access from Plaintiffs' properties to streets and other public rights-of-way, resulting in the deprivation of all or nearly all economic use of their properties. Those allegations support Plaintiffs' assertion that the City's policies and practices related to CHOP deprived them of protected property interests, albeit temporarily, without just compensation. "[T]emporary takings are subject to the same categorical treatment as permanent takings where a regulation denies all use of the property."

The Court acknowledges that judgments about where and to what degree the police should be deployed in these types of emergency situations are best left to the City. Under Plaintiffs' theory of the case, however, the City is not liable under 1983 simply because its response to the creation of CHOP was "too little, too late," or because the City failed to prevent CHOP participants from physically invading their properties.

Rather, Plaintiffs plausibly assert that the City's endorsement of, and the provision of material support to, CHOP set in motion a series of acts by certain CHOP participants, who the City knew or reasonably should have known would deprive Plaintiffs of protected property interests. These allegations support the claim that the City's conduct was "causally related to [the] private misconduct" and it was "sufficiently direct and substantial to require compensation under the Fifth Amendment."

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Property Owners' Lawsuit Against Seattle Over Its Toleration of the "CHOP" Takeover Can Go Forward - Reason

A Brooklyn teacher invoked the Fifth Amendment against self-incrimination when asked by city school investigators about his relationship with a female student, records show.

David Lado, who taught physics at Medgar Evers Preparatory School in Crown Heights, engaged in an inappropriate relationship with a female student, the Special Commissioner of Investigation for city schools alleges.

The SCI began a probe after a school official reported receiving an anonymous complaint in an email on June 23, 2019, that Lado, 29, was engaged in sexual activities with a student.

In the presence of her father, the girl denied having a sexual relationship with Lado, saying she spoke with him only during school hours.

The girl also claimed her younger sister, who was mentioned in the anonymous email, denied telling anyone about the allegation. But the father would not let investigators question the sister, the report says.

SCI subpoenaed Google to determine who sent the anonymous email. The records show the account was opened on June 23, the date of the anonymous message. Possibly for the sole purpose of sending the email, the report stated. The person who opened the account did not provide a name or address.

SCI subpoenaed phone records showing that Lado and the girl were in phone contact 129 times. Lado placed 38 calls to her, she called him 88 times, and three text messages were exchanged. The calls were between May 1 and July 1 in 2019, continuing amid the investigation.

Through his lawyer, Lado declined to be interviewed by SCI,invoking the Fifth Amendment privilege against self-incrimination, the SCI states.

The SCI sent Chancellor Richard Carranza its findings on July 9 eight days after the Department of Education fired Lado for letting his state teaching license expire.

Because Lado was already terminated, the DOE could not file misconduct charges against him, a DOE spokeswoman said.

But Lado, who had taught at Medgar Evers since September 2015, is ineligible to work for city schools again, officials said.

According to his LinkedIn page, Lado is currently an MBA candidate at the Zicklin School of Business at Baruch College. He could not be reached for comment.

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NYC teacher suspected of sexual relationship with student invokes Fifth Amendment - New York Post

Critics of originalism sometimes claim that originalists focus only on the original 1787 Constitution, while ignoring the Reconstruction amendments, which transformed the Constitution after the Civil War. Sometimes, this criticism is combined with the argument that the neglect of the Reconstruction Amendments is intended to privilege white men over blacks and other racial minorities, whose rights those amendments were enacted to secure. Such arguments have gotten renewed prominence in the wake of the controversial nomination of Amy Coney Barrett to the Supreme Courtthanks in part to a New York Times op ed by Jamelle Bouie, arguing that originalists ignore the fact that "[t]he Americans who drafted, fought for and ratified the Thirteenth, Fourteenth and Fifteenth Amendments did nothing less than rewrite the Constitution with an eye toward a more free and equal country." He concludes that "The Reconstruction Constitution is a fundamentally different document than the Constitution of 1787. Yet our conversations around 'original meaning' rarely take account of this change."

A recent op ed by MSNBC contributor Hayes Brown similarly accuses originalists of ignoring "the fundamental constitutional shift that occurred after the passage of the 13th, 14th and 15th amendments." Such claims are not new. But they are badly wrong. Those who accuse originalists of ignoring the significance of the Reconstruction amendments are themselves of guilty of ignoring a vast originalist literature devoted to that very subject.

In reality, numerous prominent originalist legal scholars have written extensively about the Reconstruction amendments and their significance. Michael McConnell (a well-known originalist who was, for a time, also a federal judge) has authored prominent articles on the original meaning of the Fourteenth Amendment with respect to both racial discrimination and the meaning of due process of law. Steve Calabresi (another prominent originalist legal scholar, and co-founder of the Federalist Society), has coauthored prominent articles arguing that the original meaning of the Fourteenth Amendment provides broad protection against both racial discrimination and sex discrimination. Christina Mulligan has an important article outlining how we can and should take account of diverse perspectives (including those of women and racial minorities) in understanding the original meaning of the Constitution. Her work is of obvious relevance to interpretation of the Reconstruction amendments.

Co-blogger Randy Barnett ,Evan Bernick, and Kurt Lash, are among a number of originalist legal scholars who have written major works on the meaning of the Privileges or Immunities Clause, in some cases arguing that it provides broad protection for a wide range of rightsfar beyond what is protected by the courts today. Bernick also has a pathbreaking new article arguing for a broader interpretation of the Equal Protection Clause, contending that its original meaning imposes an affirmative duty of protection on the state, not merely a duty to avoid racial discrimination. Michael Rappaport, another leading originalist constitutional theorist, has written notable articles exploring the implications of the original meaning of the Fourteenth Amendment for affirmative action programs, and for regulatory takings.

In my book The Grasping Hand, I discuss the impact of the Fourteenth Amendment's "incorporation" of the Bill of Rights against state governments for "public use" constraints on government power to take private property. I argue that the Reconstruction-era understanding of public useas revealed in contemporary court decisions, debates over the abolition of slavery, and the framers' goal of protecting blacks and white Unionists against state governmentsprovides a stronger basis for enforcing tight limits on government's power to take private property than is evident in the original 1791 meaning of the Fifth Amendment.

Nor is originalist interest in the Reconstruction Amendments just a product of recent years. McConnell's work on race discrimination dates back to the 1990s. As far back as 1980, Bernard Siegan published Economic Liberties and the Constitution, which argues that the original meaning of the Fourteenth Amendment provides much broader protection for economic liberties than modern judicial doctrine is willing to recognize. Prominent early originalists such as Robert Bork and Raoul Berger also wrote about the original meaning of the Fourteenth Amendment in the 1960s and 70s, though most modern originalists (myself included) would today argue that Bork and Berger got many things wrong.

It's also worth noting that pretty much all of the above writers recognize that the Reconstruction amendments made major changes to the existing constitutional order. Few if any originalists claim that the original 1787 Constitution somehow remains in force with few or no significant changes.

There has been much less originalist analysis of the meanings of the Thirteenth and Fifteenth Amendments. But that is in large part because there is less controversy about these amendments than the Fourteenth. Nonetheless, there is a growing originalist literature on these amendments, as well. Notre Dame law Professor Jennifer Mason McAward, for example, has done important work pushing back on the newly popular idea that the Thirteenth Amendment gives Congress broad power to legislate against any injustices than can in some way be indirectly linked to slavery, though she also emphasizes that it does give broad power to suppress slavery and "involuntary servitude" themselves.

With the exception of Raoul Berger (an idiosyncratic liberal who was often associated with conservatives), the above-listed works are all by conservative or libertarian originalists. It is they who most often get accused of ignoring the Reconstruction amendments. But it is important to recognize that liberal originalists have also written major works on the Reconstruction Amendments. Akhil Amar, for example, has literally written the book on how those amendments should change interpretation of the Bill of Rights.

The works mentioned above are just a sample of the vast outpouring of writings on the Reconstruction Amendments produced by originalists over the last several decades. For reasons of space, I have had to omit a great many important books and articles on numerous issues.

It is fair to argue that prominent originalist judges haven't focused on the original meaning of the Reconstruction amendments nearly as much as academics have (though that is not true of several, like McConnell, who areor have beenboth scholars and judges). Still, originalist judges are far from simply ignoring those Amendments.

Clarence Thomas, for example, has written a well-known opinion arguing that the original meaning of the Fourteenth Amendment strengthens the case for "incorporating" the Second Amendment right to bear arms against the states. The drafters of the Amendment, he points out, believed this to be an important safeguard for blacks' rights against oppression by racist state and local governments. As far back as 1973, Justice William Rehnquist's dissent in Roe v. Wade was based in large part on arguments drawn from the original meaning of the Fourteenth Amendment. And these are far from the only examples of originalist judges grappling with the Reconstruction Amendments on a variety of issues.

Originalist judges can and should do a much better job of including the original meaning of the Reconstruction amendments in their jurisprudence than many have done so far. But it is wrong to claim that they have simply ignored the issue, or that they somehow] believe that the Constitution remains largely unchanged since 1787.

I do not expect columnists and other non-experts to be familiar with all of these writings. Indeed, the literature has grown so large that even most constitutional law scholars (myself included!) can't keep track of all of it. But, while it would be unreasonable to expect lay pundits and commentators, to study this literature in detail, they should at least consult relevant specialists before making sweeping claims about originalism.

Ironically, critics who claim originalists have ignored the Recontruction amendments are at odds with academic critics who argue that originalists take an overly optimistic view of their meaning (as Stephen Griffin contends in an important recent article), or that they disagree among themselves about that meaning so much, that the disagreement proves that originalism is indeterminate. I criticized the latter argument here. Such critiques of originalism would make little sense if originalists really had largely ignored the Reconstruction amendments. The accusation of excessive optimism is especially inconsistent with claims that originalists seek to minimize or ignore the extent to which the Reconstruction amendments altered the preexisting legal order.

None of the above proves that originalists have found the "right" possible interpretation of the Reconstruction amendments, or that originalism is superior to alternatives such as living constitutionalism. There are plenty of legitimate criticisms of both originalist takes on the Reconstruction amendments, and originalism as a more general theory of constitutional interpretation.

I myself have reservations about many versions of originalism, and defend the theory only on contingent "instrumental" grounds. I remain open to the possibility that some other approach to constitutional interpretation (perhaps one not yet fully developed) might turn out to be superior. But the public debate over originalism and constitutional theory is not advanced by false claims that its exponents have ignored the significance of amendments on which they have actually written extensively.

Originally posted here:
Do Originalists Ignore the Reconstruction Amendments? - Reason

This morning the U.S. Court of Appeals for the D.C. Circuit,inNorth American Butterfly Association v. Wolf,revived the North American Butterfly Association's Fifth Amendment Due Process claim against the Department of Homeland Security for intruding upon a wildlife sanctuary along the U.S.-Mexico border. Dismissal of the NABA's other claims, however, was affirmed.

Judge Pillard wrote for the court's majority, joined by Judge Tatel. Judge Millett dissented. Judge Pillard's majority summarized the case as follows:

The National Butterfly Center, a 100-acre wildlife sanctuary and botanical garden owned by the nonprofit North American Butterfly Association, lies along the border between the United States and Mexico. Butterfly Center staff discovered in 2017 that a segment of the wall the U.S. Department of Homeland Security (DHS) plans to build on the border with Mexico would run through the Center's premises. After DHS confirmed that plan and asserted control over parts of the Center, the Butterfly Association sued.

The Association contends that DHS' presence on and use of parts of its property to prepare for and carry out construction of a border wall violate the Fourth and Fifth Amendments to the United States Constitution and two environmental statutes. The district court dismissed all claims, concluding the Association stated no viable constitutional claim and that section 102(c)(2)(A) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, Div. C, 110 Stat. 3009, 3009-546, as amended (IIRIRA) (codified at 8 U.S.C. 1103), strips jurisdiction over the statutory claims because the DHS Secretary waived application of environmental laws with respect to the construction of roads and physical barriers to be built at the Center. See N. Am. Butterfly Ass'n v. Nielsen, 368 F. Supp. 3d 1, 4 (D.D.C. 2019). We affirm dismissal of the Butterfly Association's statutory and Fourth Amendment claims but reverse dismissal of the Fifth Amendment claim and remand for further proceedingsconsistent with this opinion.

The broad waiver provisions of the IIRIRA clearly grant the DHS Secretary the authority to waive statutory obstacles to wall construction, so those aspects of the ruling are quite straightforward (assuming, of course, that there is no non-delegation problem with the breadth of the authority delegated to DHS with that provision). The NABA tried to get around the IIRIRA, but to no avail.

The IIRIRA does not, and could not, waive the Department's constitutional obligations. On the constitutional claims, the panel majority concluded the NABA "failed to state a Fourth Amendment claim of unreasonable seizure of property it acknowledges to be 'open fields,'" but did state "a procedural due process claim under the Fifth Amendment."

Here is a portion of Judge Pillard's discussion of the NABA's claim:

A procedural due process violation under the Fifth Amendment occurs when a government official deprives a person of property without appropriate procedural protectionsprotections that include, at minimum, the basic requirements of notice and an opportunity to be heard. . . .

The Butterfly Association alleges that CBP has asserted control over the National Butterfly Center by entering, maintaining a regular presence on, and taking charge of areas of the Center without notice to or consent from the Association. . . . The complaint alleges that CBP installed sensors at the Center to detect above ground activity, widened private roadways within the property, cut down trees, and threatened to destroy the Association's private gates and locks without warning. . . . Those property deprivations are unexcused, the complaint alleges, by any citation on DHS' part to a "lawful basis for their intrusion and destruction of" the Butterfly Center or any effort by DHS to "acquire an interest" in property admittedly not its own through any legally recognized "steps for doing so." . . .

The due process claim survives because the government has not established that its statutory authority to enter private property to patrol the border licenses all of the alleged intrusions at the Center. For example, DHS has not argued that the contractors it allegedly employed to widen a private road at the Center . . . are "immigration officers" entitled "to exercise the power to patrol the border conferred by [8 U.S.C. 1357(a)(3)]" by entering private property, 8 C.F.R. 287.5(b). Nor has it established that widening private roadways, installing sensors, or regularly stationing CBP agents on Center property . . . all fall within the statutory authorization for "patrolling the border," 8 C.F.R. 287.1(c), or justify entry onto private property under section 1357(a)(3). . . .

With allegations that government officials and contractors have entered the National Butterfly Center to alter private roadways and install sensors, and that CBP has maintained an enduring presence at the Center in connection with planned border-security infrastructure, the Butterfly Association plausibly pleads a deprivation of property without due process. At the pleading stage, we of course express no view as to whether DHS agents in fact behaved as the Butterfly Association has alleged or whether the Association's Fifth Amendment procedural due process claim will ultimately prevail.

Judge Millett dissented on the grounds that the court lacked jurisdiction to hear the case. Her dissent begins:

Cliffhangers may make for good storytelling, but they are no good for establishing appellate jurisdiction. Because the district court dismissed the complaint in part without prejudice and with express leave to amend and to seek emergency injunctive relief, and then did nothing more to conclude the case, we lack jurisdiction over this appeal.

The majority opinion offers a thoughtful theory of jurisdiction. The problem is that the Supreme Court has already answered this same jurisdictional question the opposite way. That decision binds this court. And the Supreme Court's disposition should come as no surprise. Statutory text, structure, and established principles of appellate jurisdiction foreclose our review because the district court's dismissal of the complaint was by its plain terms not final when entered by the court. The mere passage of time, without more, could not by itself make the judgment final. Neither could the litigants, through their actions or inaction, step into the shoes of the district court and singlehandedly cause the entry of a final judgment in the case. Without jurisdiction, we lack the power to address the merits. For that reason, I respectfully dissent.

One final editorial comment. In environmental policy debates it is common to present environmental conservation and the protection of private property rights as if they are in opposition to each other. Yet as this case shows, the constitutional protection of private property can also protect environmentally sensitive placesin this case, a wildlife refugefrom government excess. This is a point Ilya and I explored in our paper on the environmental consequences of unrestrained eminent domain authority, and I've examined in the context of species conservation and uncompensated takings.

The rest is here:
Due Process for Butterflies in the D.C. Circuit - Reason

I walked into the house and set my things from school and work on my bed. I went into the kitchen and spoke with Grandpa and Autumn for a few moments. Then, I turned towards my place at the table and saw the envelope that was addressed to me. I looked at it. In the left-hand return address, I saw the Absentee Ballot Office. It had finally come!

I sat down at the table, took out my Cross pen, and slowly opened the envelope. This was the moment I had been waiting for. I remembered reading about President Lincoln in Team of Rivals and how he had sent out absentee ballots to members of the military during the Civil War. I thought of our founding mothers and fathers what they had to go through so that we might be free. I remembered working in the U.S. Capitol, walking those sacred halls, taking part in our government. As I sat down to vote for the first time for the office of President of the United States, I couldnt help but feel proud. I was finally having my voice counted. I was voting.

I filled in the little bubbles next to the candidates that I supported. I read the ballot measures, understood what they were saying and cast my vote. I looked at the judges and knew who I wanted to see retained and who I did not. I was informed.

We all know how divisive and nasty this election cycle has been. We all saw that first presidential debate, the whole world saw it. I have also seen the last four years.

I have learned about the spying of the Trump campaign and the impeachment proceedings. I have seen Speaker Pelosi declare the creation of a Commission on the Twenty-Fifth Amendment. I have seen the riots across the country. I have heard the chants. But, through it all, I have been able to look through the smoke and the smog to see the everyday American.

It was not on the news when we made a music video singing Lean on Me or we had the Lip-Syncing Challenge. It was not on the news when we came together as a community to support the seniors who graduated by holding a parade with Cordova on the sidewalks to support us. It didnt make the news when our churches prayed for our people and for our country. No, the America I know is not on the news every night. We are the America I know, and this gives me great hope.

William Deaton is a graduate of Cordova Jr./Sr. High School and is leader of the Cordova Precinct of the Republican Party.

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Commentary: First time voting offers hope - The cordova Times

Jeffrey Deskovic speaking in Davis last year at the Annual Vanguard Event

Looking back will feature reprints of articles that Jeff previously wrote while a columnist at The Westchester Guardian, which encompass topics that are applicable here in CA as well as across the country and not simply applicable to NY.

By Jeffrey Deskovic

In my last article, I outlined the deficiencies in the State Court System in protecting the innocent. In this article, I will go into the Federal Court System. After a defendant has been denied by Their states highest court, they are no longer entitled to a lawyer if they cannot afford one.

The Problem With Not Having An Attorney In Federal Court

Unlike State Court, where a defendant is assigned an attorney to represent him if they cannot afford one, the defendant does not have a right to an attorney while challenging his conviction in Federal Court.

Although federal courts have the authority to assign a lawyer, most of the time they do not. This results in the logic defying sight of an innocent defendant, often, although not always, poorly educated, forced to represent him or herself against a seasoned prosecutor. If one tops to consider for a moment, this is totally outrageous and inconsistent with any type of fundamental fairness from which we may have confidence in the accuracy of outcomes.

After all, although most wrongfully convicted prisoners familiarize themselves with the law, as I did, the fact of the matter is that to be an attorney requires three years of study including invaluable classroom training, and passage of a bar exam before they may represent other people.

Learning law through going to the law library and reading cases is no way comparable to that, nor a substitute. If it as, lawyers would skip law school, read case law, and then take the bar exam.

Often, wrongfully convicted prisoners are charged with serious crimes carrying heavy prison sentences, and they are somehow expected to use the little bit of earning that they have gained from the prison law library against a prosecutor who has been law school-trained, passed the bar, and then gained experience. The unfairness in this equation is obvious.

Somehow neither Congress nor the United States Supreme Court has seen this practice as violating our Sixth Amendment right to counsel. Additionally, the groundbreaking and justice-promoting decision in Gideon v Wainwright granting defendants the right to a court-appointed attorney was somehow not seen as applying to prisoners filing habeas corpus proceedings, appeals to the Circuit Courts, or to the United States Supreme Court.

As I see it the situation, coupled with the frequent practice by appeals courts of not really addressing issues on the merits and ruling as the facts and/or the law requires, constitute the two most important reasons why miscarriages of justice are often not corrected at the federal level. All too often it is often found that the wrongfully convicted have long ago had all of their appeals exhausted at the time they are ultimately proven innocent.

Compounding these problems is the fact that the instinct of most courts is to deny motions and appeals brought by defendants pro se, (representing themselves). In a sense, this is a kind of tacit admission that those representing themselves are usually incapable of bringing forward meritorious claims and/or arguing them correctly.

The arguments against appointed counsel by the state is essentially two-fold. Firstly, they claim it would be too costly. My counter to that argument is that there is no price that should ever be put on an innocent persons freedom. A competent attorney is essential to ensuring that justice is done. Secondly, since the issues that may be raised in federal court have to have been raised in prior state court proceedings, these issues have already been mapped out for the defendant.

The refutation of this is that while the issues themselves have previously been argued, that fact does not take into account that one is allowed to supplement the record, citing additional cases as authority as to why a case should be overturned so long as it does not fundamentally alter the claim, and that secondary persuasive sources may also be cited, such as scientific studies or treatise. In addition, an attorney is far more likely to be aware of recent decisions impacting, or related to, the issues raised in the case at bar. This additional material is important to bring to the courts attention in order to help it decide the case correctly, and essential to a defendants obtaining justice.

In addition, for several reasons, it is not enough for the defendant to simply submit a brief, essentially copied from the state appellate briefs, and then wait for an answer from the opposition, relying on that to obtain justice. As will be demonstrated, as I review various court proceedings, a defendant must answer responses given by the prosecution and then must also draft applications. To ensure justice, these must be done by a competent attorney. Furthermore, since state court law is irrelevant in federal court, the state court cases and arguments need to be removed from the briefs.

Habeas Corpus

A habeas corpus proceeding is different from an appeal in that federal courts do not entertain issues pertaining to state law. Instead, state prisoners who file a petition for a writ of habeas corpus are arguing their conviction is running contrary to the United States Constitution.

Therefore the issues that must be raised must be Constitutional issues, and must previously have been raised in state courts, in such a way as to put those courts on notice that the appellant was arguing his or her issues in a Constitutional context. If issues are raised for the first time in federal court then the court will dismiss the petition without ruling on it on the grounds that the issues were not exhausted.

The procedure is that a judge, referred to as a magistrate, is assigned to the case, and he makes a recommendation to another judge as to how he or she should rule. The defendant files legal papers, and then the prosecution submits legal documents. It is up to the defendant, or his or her attorney, to then counter the answer of the prosecution in what is known as a traverse. Otherwise, it is presumed to be accurate.

This counter obviously is an original document, which must take into account the cases cited by the prosecution and show that they do not apply and that the cases the defendant has cited are controlling. Therefore, it must be drafted, and thus is not a mere copying of arguments that were previously made. As stated above, in reality, it requires an attorney to do it properly.

Once the magistrate judge has made his or her recommendation, that is then forwarded to the presiding judge. It is up to the defendant to file objections to the recommendation and point out, through citing case law, how the recommendation is, incorrect if in fact, it is. Any un- objected to portions of the recommendation is presumed to be correct. Again, this requires an attorney with first-hand knowledge of the law who can work to make credible arguments in the objection, especially given the short time limit allotted for filing such objections. It is especially critical when one considers that judges, although not mandated to follow the recommendations of the magistrate judge, frequently do. Therefore it is critical that a persuasive document be crafted.

Often the prosecution attempts to circumvent the court from even ruling on the merits of the issue that the defendant raises by attempting to get the court to dismiss the petition for one reason or another without even looking at the merits. Historically, many a case has fallen through the cracks this way.

There are other problems inherent within habeas corpus proceedings. In Rose v Lundy, the court ruled that the previous practice of defendants filing a second petition in federal court if they had new issues, that they had no longer presented, would no longer be allowed and instead the petitions would be looked upon as successive and abusive.

The intent was to prevent defendants from having more than their day in court, and to reduce appeals. However, this law posed two obstacles to the innocent. Since lawyers often were not appointed, petitions were being filed by the defendants pro se. Then, later on, if they were able to somehow obtain an attorney, the attorney would be faced with the roadblock that the petition had been filed already in desperation by the wrongfully convicted. District Attorneys are quick to take advantage of this and urge the courts not even look at petitions. Additionally, new facts may not have been learned until after the first petition had been filed and ruled upon, and yet the waters are now murky as to whether the new issues will even be looked at under the law.

Another problem is that President Clinton signed the Anti-Terrorism Effective Death Penalty Act into law. That law gave all state prisoners one year in which to file a habeas petition after being denied by their states highest court. Considering the fact that once a person is finished with state court, they are suddenly without a lawyer and often without money to hire one, out of desperation they find themselves in a scramble against the odds to somehow find a lawyer who will represent them pro bono (free). Meanwhile, the clock is running.

Additionally, that law presents other implications that impact habeas corpus, rendering it ineffective. Under the law, federal courts were directed to review issues defferentially to state courts, wherein they were no longer looking at things as critically, nor were they necessarily looking to see if a state court ruling was correct. It merely became a question of whether the ruling was reasonable. If it appeared to be, even if it was wrong, then the federal court was to grant no relief.

In my own case, when I filed a Habeas Corpus Petition there was confusion in the courts regarding how the new one-year rule would apply to cases already in the system, and different courts were answering the question in different ways. My then-lawyer called the court clerk and asked if my petition could be postmarked on the due date, or whether it had to be physically filed and in the building. She was told that it was enough that it be postmarked. That information turned out to be false and, as a result, the petition arrived four days too late.

The then-Westchester District Attorney, Jeanine Pirro, took the position that those four days were somehow prejudicial to the governments case, and that the Court should simply rule that I was late, and dismiss the petition. It did not matter to her that I was arguing my innocence as established by the DNA or that my Fifth Amendment Rights had been violated.

Apparently it did not bother the conscience of Assistant District Attorney John J. Sergi, who actually wrote the brief arguing that position. He similarly had no trouble arguing that the DNA Test which showed that the semen found in the victim did not match me somehow did not show my innocence. At several points in the brief he wrote, To be sure, petitioner incorrectly asserts that DNA evidence is conclusive of innocence. Elsewhere he argued that the fact that the test results came before I was convicted rather than post-conviction somehow impacted upon whether they proved that I was innocent. He argued, This is not a case in which an exculpatory result of a DNA analysis is offered as new evidence after a trial comporting such reasonable doubt as to warrant a retrial at which that result can be considered by a jury along with other evidence in the case. Rather, the full flower of the herein asserted exculpatory evidence was admit- ted at the trial and was considered and rejected by the jury as a sufficient basis to create reasonable doubt. Unfortunately for me, the Court did, in fact, time bar me.

The Federal Court Of Appeals

The procedure is that a defendant must get permission from them before they will agree to hear the merits of his case. Often defendants are denied this permission, thereby leaving them with only one court left to go to, The United States Supreme Court, where the chances that they will agree to hear a case are slimmer yet.

In my case, the court gave me permission to appeal to them. My lawyer advanced two arguments as to why they should reverse the ruling time barring me: 1) That to allow such a ruling to remain in place would be to allow a miscarriage of justice to continue.

2) That reversing the procedural ruling against me would open the door up to more sophisticated DNA Testing. Once again Pirro, through Sergi, opposed, and once again the court sided with them. My attorney moved to reargue the case in front of them, but this too was denied.

The United States Supreme Court

This is the highest court in the land. The procedure is that before the court agrees to rule on the merits of a case, they must first agree to hear the case. Defendants therefore file legal papers requesting that they agree to hear the case, and the prosecution usually automatically tries to persuade the Court not to agree, regardless of innocence issues being raised or the merits of the arguments being made.

Nationwide the Court agrees to hear only approximately five percent of the total number of cases that come before it. Often the United States Supreme Court ducks questions it does not want to answer and cases it does not wish to rule on by declining to hear the merits of the case. The media frequently points out when the high court declines to agree to hear the merits of a case which presents an issue that they do not want to deal with that the United States Supreme Court ducked the issue by declining to agree to hear the case. As I see it, this is a moral abdication of its responsibility: A) the Supreme Court is the ultimate arbiter of justice, and, B) they should ensure that injustice is not going on in the court system, and, C) they arecharged with resolving questions of controversy by making final rulings.

Included in this general sweep of declining to hear cases it does not want to rule are serious allegations of innocence or errors that occurred in the course of a trial so serious as to cast doubt on the reliability of the verdict.

There has not been one single case in which the primary issue was innocence that has been successfully raised as a basis for agreeing to hear the merits of the case, and then ruled on in favor of the defendant. And, that includes not one of the current 215 DNA-based exonerations, nor any of the non-DNA exonerations that have occurred.

Indeed, the sheer futility of it is so known to attorneys that they very rarely even raise it. Thus attorneys for the wrongfully convicted are often stuck raising issues of law as the more likely vehicle by which to gain relief for their clients, which is another reason why it is important that issues of law, often viewed as technicalities, be looked at, and ruled upon the right way, because an innocent defendant may be adversely affected. As I will highlight below, it is no wonder why they often do not bother to rule on it.

Most citizens do not realize that guilt and innocence are not, according to the United States Supreme Court, the bedrock of our justice system. Many would be shocked to discover that the Court wrote the following quotations in the case Herrera v Collins: But this body of our habeas jurisprudence makes clear that a claim of actual innocence is not itself a Constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred Constitutional claim considered on the merits. And, But we have also observed that due process does not require that every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person. Patterson v New York, 432 U.S. 197, 208, 53 L. Ed. 2d 281, 97 S. Ct. 2319 (1977). To conclude otherwise would all but paralyze our system of enforcement of the criminal law.

One final quote from the high court. But because of the very disruptive effect that entertaining claims of actual innocence would have on the need for finality in capital cases, and the enormous burden that having to retry cases based on often stale evidence would place on the States, the threshold showing for such an assumed right would necessarily be extraordinarily high. Here the court is not even unequivocally saying that there is such a right. In another case, the court ruled, stating Few rulings would be so disruptive to our system of justice as would be to allow free standing claims of innocence. By all of the above language, the court makes clear that points of law are more important than guilt or innocence, and this is why they dont like to entertain issues involving guilt or innocence.

I certainly witnessed this first-hand in my case: My attorney raised the issue of my innocence, as established by the DNA. How much more clear cut does it get that a defendant is innocent? Yet the Court, nonetheless, declined to intervene in the injustice that was unfolding in my case, and it would be approximately five more long years before I would be released from prison, when it could have, and should have, ended right there.

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Looking Back: The Appeals Process Is Woefully Insufficient to Protect the Innocent Part II - The Peoples Vanguard of Davis