Oh come on. I assumed by "comment" you meant "say something that has some influence on the outcome of future cases." Like if Justice Scalia makes a "comment" on the law, say in a dissent in some SCOTUS case, then this influences the law, even though he's not on the prevailing side in the case before him. Lower judges and attorneys will take his "comment" into account when deciding how to proceed. It will have influence, even though it doesn't decide a case by itself.
But any "comment" a jury makes by refusing to acquit because they (secretly) don't think the law is just has zero effect on future cases. It's a comment whispered into your pillow late at night. Means nothing. I'm taking the position that a comment that has no effect might as well not exist.
Furthermore, I don't believe that just because the jury refuses to apply the law to one defendant that the law has been "nullified." That's like saying if the police don't manage to arrest someone for a particular crime, then the applicable law has been "nullified." Or if the prisoner dies before trial, or if God strikes the judge dead just before he passes sentence and the prisoner escapes in the hullabuloo. I'm taking the position that a law can only be resonably described as "nullified" if it no longer, in practise, applies to most people most of the time -- not just because it wasn't applied to one person once. Therefore, I'm taking the position that the only reasonable way to understand "jury nullification" is that, in principle, if most juries refuse to convict because they think a law is unjust, then the law stops being enforced even though it's technically on the books. It's certainly possible. But as I said, I doubt it's ever happened.
On the other hand, I'm sure zillions of juries have acquitted for wacky reasons -- they don't like the law, they don't like police, they don't like the judge's haircut, whatever -- that have nothing to do with the facts in the case. But I wouldn't call this "jury nullification" or consider it the result of some great legal principle. I'd just call it the inevitable noise in an imperfect system.
Yes? And so? The decision merely says no judge may guess why a jury decided the facts establishing guilt weren't proven. They could have disbelieved the evidence as to the facts, yes -- and that's how it's supposed to happen -- but they can, if they want, decide the facts aren't proven for any reason or no reason. Because they flipped a coin, because they don't like the law, because they don't like the assistant DA's tone of voice, or because they all have headaches and just want to go home. And then, even if the court becomes aware of evidence suggesting strongly to any rational mind that the jury arrived at its decision whimsically or randomly, even if afterward a juror says oh we just knew he couldn't have done it because he's a cute Gemini (tee hee) -- well, the court can't second-guess its acquittal.
(I'm thinking the defendant could maybe second-guess its conviction, however, in a case like this, since he might argue that a jury was tainted if a juryman said during voir dire he'd decide on the basis of the facts as presented at trial et cetera, but then revealed afterward he'd used some quite different information, not presented in the courtroom, to decide. I believe Martha Stewart made something very roughly like this kind of argument on her appeal.)
But all this all means is that, more or less by accident, because no one can second-guess their reasoning, juries could effectively nullify a law -- if nearly every jury assembled to try a particular type of case acquitted the defendant. Has this ever happened? I doubt it very much. I think it's entirely a theoretical power. Even if a handful of juries acquit because they don't like an unpopular law, I suspect most won't be that radical. I fancy most jurymen are plain, quiet, middle-age folks -- retired second-grade schoolteachers who knit, bus drivers with 15 years seniority and a pacemaker, balding Kinko's managers who manage Little League on Saturdays, your own mother and father. Few are libertarian 19-year-old college students burning with the desire to shake their fist in the face of Authority and channel Patrick Henry ("Give me liberty or death! Yaaaaah!").
Well, I think we need to delve into the roots of why we want our privacy at all. If we're not doing anything wrong, why do we care whether others might find out about it? Why do I care whether someone aims a telephoto lens into my kitchen window and photographs me making dinner, unless I'm cooking up some crack or my freshly-butchered neighbor or I'm in the buff with a boner...?
I suggest the main reason we care about our privacy in conversation is that we know we are intrinsically much more guarded in what we say when we know every last detail of what we say will be recorded and can be quoted, often out of context, later, to anyone at all. And that means we're a lot less likely to be as honest and forthright in any conversation that's being recorded, or which we suspect might be recorded. That hurts everyone.
Let me put it this way. Say you own a small business, and an irate customer calls because one of your salesmen did something bogus -- sold him a widget without mentioning a peculiarity that made him drop it and hurt his toe. Now, if you and he are talking privately -- no recording, no one listening in -- then the conversation will be pretty informal. It might get heated, but it will probably be as honest as it can be. You might be willing to agree your salesmen fscked up, apologize, and offer to make some minor restitution. The guy might be mollified, agree he's a little at fault too, and accept. Problem solved.
But suppose you know the conversation is being recorded, and a jury might hear it later and nail you for $10,000 of damages plus costs? Or it might be played on YouTube and cause you endless PR problems? You're going to be a lot cagier, you're going to admit nothing, argue aggressively that caveat emptor and it's not your salesman's fault, et cetera. And the guy at the other end, he's not going to be willing to admit he might have been a little inattentive, a little at fault, too. So the conversation is less likely to come to a mutually-acceptable end, and much more likely to be a stiff, pointless exchange of talking points. That's not good. Means what could have been a small conflict can become a much bigger and harder to solve conflict.
Basically having a two-party law says conversations are generally "off the record" unless everyone agrees otherwise, and I suggest a big purpose of this is to encourage the greater honesty in conversation that happens when things are off the record.
Sure, it's true people can take notes of a conversation, or memorize parts of it. But these are both very limited ways of recording the conversation, and are bound to generally capture only the high points. It's much harder to take some little tidbit out of context and use it to damn you. Furthermore, you have a plausible defense in that you can argue the fallibility of memory, or the illegibility of the notes, whatever. So it's definitely harder to use the conversation to attack you than if it were recorded in perfect fidelity.
I'm not saying this argument need be convincing. Your argument is sound. It's a tough call which argument should prevail, and probably people feel one way and then the other, depending on what's happened to them lately. Sure, sometimes I wish I could've recorded things the ex-wife said to me over the phone. But then again, there are times I'm right glad she couldn't record what I said. It cuts both ways for most people, sooner or later. That's probably why there's no national consensus on this issue, and different states have substantially different laws.
Gee, take a deep breath. Or consider easing up on the morning coffee.
I disagree that to be acquitted means anything more than that the jury is not convinced of the facts necessary to prove guilt. Other jurisdictions, it's true, make a distinction between "not proven guilty" and "innocent" but the US doesn't, and so I think it's quite reasonable for people to lump the two categories together. In some cases, no doubt, a jury was convinced the accused was innocent. But in others, they were merely not convinced he was guilty. We can't know which was the case in any given trial unless the jury volunteers to say, or we were on it.
Yes, I know the law is continually re-interpreted and reviewed -- by judges. You'll note I was speaking of the police. The police can't review and re-interpret a judge's ruling. Once he's made it, that's it, they have to live with it. At least until some other case comes up, and some judge makes another ruling that affects the matter. That was my point. Do you really disagree?
Finally, while I agree that the bullshit about not being able to convince a jury is a way to save face in this instance, it's often not bullshit.
Erm, I don't recall saying it was always bullshit. Just in this case. So what's your beef?
The result of the criminal trial doesn't affect the civil trial. The People v. Orenthal James Simpson was decided in favor of the latter, but in the civil suit that followed he was convicted.
Some folks think this skates dangerously close to double jeopardy, however, and think that acquittal in a criminal trial should be a presumptive defense against civil charges. They feel it's a tad unfair that if you're acquitted in a criminal trial, and your alleged victims are wealthy enough, they can take another shot at you in civil court (where the standard of proof is lower).
Doesn't work that way. The jury is only the "trier of fact." Their job is only to decide the facts of the case, e.g. "did so-and-so do the following things as the prosecution alleges." It's then up to the judge to decide what the law says should happen if those facts are true.
It's true the jury can refuse to convict if they don't like the law, or for any other random reason. But since the legal system can't ever inquire why a jury didn't convict, it always regards a jury acquittal as implying nothing more than that the facts the prosecution alleged were not proven.
If citizens want a law off the books, their only real recourse is to the legislature. It can't really be done by sitting on juries unless you can get everyone who ever sits on a jury to agree not to convict. Difficult.
Nooo, not legally they can't. "Jury nullification" has no legal standing at all. Judges, subsequent juries, and legislatures are not bound by it. It's nothing more than the common-sense observation that if juries routinely refuse to convict anyone charged with breaking a given law, then the law has de facto (but not de jure) no force.
New Hampshire is traditionally a state where citizens love their privacy. The idea of being a two-party state is to make it damn hard for citizen A to record what citizen B has to say. I don't think that's a bad idea. But I doubt people thought much about the issue of citizens recording the police, probably because they didn't realize -- pre Rodney King -- that this would generate any information useful to the preservation of public order.
Now we know better. Turns out to be very useful to watch the police, as useful as it is to keep an eye on any public servant entrusted with the peoples' power. So I'd say the right thing to do is classify the police -- or any government agent -- in the same way as we classify public personages, like candidates or actors in public. These people by their choice of profession and action implicitly give consent to be recorded. It's not a felony to record John Kerry making a public speech (should you have sufficient stamina or caffeine), or film Mel Gibson getting arrested on Highway 1, even if neither gives his prior consent. These people have chosen to be "public personages" and are in public, and that means they no longer have the same rights to privacy as Joe Citizen.
If the police are out in uniform doing the public's work, it seems to me there should be a clear presumption that they're just as much public personages as a candidate for the state legislature giving public speeches, and that they have implicitly given permission to anyone to film or record them. (An obvious and sensible exception would be when they're undercover, not in uniform.)
I think you have made a very important point, although it is not the jury of which the police are afraid but the judge.
If a jury refuses to convict, all they are saying, technically, is that they are not convinced the prosecutor has proved the facts of the case. It says nothing about the law. Indeed, juries have no power to alter or comment on the law.
But what if the judge makes some rulings about the law? He can do anything from flatly declaring the law unconstitutional to putting a particular interpretation on its language. For example, the chief of police admits recording devices are legal if you post "notices" that warn people about it, and then says that the "notice" the guy had posted was insufficient -- not really a "notice" at all. Oh yeah? Sez who? What if a judge were to make a ruling about what size "notice" is really a notice? It could happen. Almost certainly would happen if this were an important element of the trial. Then the police are stuck with that ruling. They can never make the argument later that a certain notice wasn't really a notice because it wasn't floodlit, was printed in soft purple instead of bold red, et cetera. Whatever the previous judge said constituted a notice is it.
Any rulings a judge makes become precedential, or at least citeable, in other court actions. As you say, this could easily constrain the powers of the government in similar cases later. Better by far to drop the case and avoid the danger.
The bullshit about "not being able to convince a jury" is just a way to save face, of course.
Mmm, yes. Unfortunately, the statistic I really needed was not the answer to this question: "What fraction of all children are abducted by strangers each year?" -- which is, yes, a very small number -- but rather the answer to this question: "What fraction of children crying next to the open door of a car at the side of the road are being abducted or abused, as opposed to being merely the victims of doofus parenting?" -- which is, unfortunately, probably not so small a number.
Anyway, no little girls were on the news last night, so I guess it all turned out OK.
You raise an interesting point: are the police responding this strongly -- too strongly -- because no one else will?
Today I was riding my bike home from work when I passed a car stopped by the side of a busy road, next to a small park with a bike path. The passenger's side door was open, and a girl about age 10 was standing by it crying. I stopped to watch, surprised. The girl was talking to someone in the car, and she would half get in the car, then step back, then repeat, crying all the time.
What do you think was going on? Doesn't look good, does it? Doesn't that make it remarkable that, as I approached on my bike, and while I was stopped, about three or four other people walked, jogged or rode on bikes past, and of course about two dozen cars drove by -- and no one else stopped? It was also in clear view of some new condos across the street that sell for upwards of $500,000 -- but no one came out of them.
I went up to the girl, and, staying well back (to help the girl feel safe), I looked more closely. In the car was a woman with another child. I asked the child her name, whether the woman was her mother, and whether she wanted to get in the car. She told me her name, said it was her mother, and that she did want to get in the car. The woman said it was her child, and that the girl wanted to get in the car, but wasn't being allowed to because she was in a "time out." I assume the woman was driving when she stopped and put the child out of the car at the side of the road as some kind of punishment. The girl would then be crying because she feared she was about to be abandoned.
After thinking it all through for a bit, I believed the woman. The girl and the woman and the other child in the car looked alike (all blonde wavy hair, similar face, and so on), and when I talked to the little girl she drew away from me and closer to the woman -- that is, she seemed instinctively to trust the woman more than me. The woman's story seemed unlikely for an abductor -- silly, unrehearsed, unlikely to soothe suspicion. So I didn't call the cops. (I did suggest to the woman that, as one parent to another, my advice would be to avoid disciplining her 10-year-old by pretending to abandon her on the side of the road. I said this rather less forcefully than I would have if her children had not been in earshot. For example, I did not call her a fscking idiot who should have been sterilized at menarche.)
I'm still bothered by whether I did the right thing, although the girl climbed in the car after I talked to her seemingly willingly enough, and the car drove off not in any obvious hurry. I hope I wasn't too trusting.
But my point is that it was very noticeable to me that no one else wanted to get involved. Dozens of other adults passed close by and saw what I did -- no one else stopped to take a closer look, make sure the girl was OK.
Perhaps we have come to delegate some of what used to be our normal social responsibility to our fellow man to the police. Small wonder that these things happen, then, although I wish they wouldn't.
Um, when was this golden period of civil rights of which you speak? Can't have been the 80s (Reagan and his eeeeeevil AG Ed Meese), can't have been the 70s (Nixon! Eeek!), the 60s (Selma, Roe v. Wade), the 50s (McCarthy, HUAC hearings), the 40s (Japanese-American internment), the 30s (Grapes of Wrath, Pinkertons beating up strikers), the 20s (ward fixers, no votes for women)....can't have been the last century, with Lincoln suspending habeas corpus and all and the Army shooting on draft protesters...can't even have been the early 19th century, with the Alien and Sedition laws and the government locking up newspaper editors for printing attacks on the President...
So...hmmm...I'm guessing you're talking about the first few months after the Bill of Rights were ratified?
My point is that by historical standards I think you're wrong. The rights you are theoretically granted in the Constitution are more often enjoyed in practise today than at any time in the Republic's history. Perfection has not yet arrived, of course, and some people suggest Guantanamo is evidence of its lack.
But on the other hand, if that's the most important thing they can point to -- when our grandfathers striking the steel mills could point to nightsticks on their head, and our great-grandfathers could point to black men hung to the nearest tree because a white girl cried rape -- well, I think maybe we could use a little humility. We have it good, real good, compared to most of the world, through most of its history. We should not rest until things are better, of course, but whining about how bad it has become for us (when quite the reverse is true) seems a little...graceless.
Well, then you may not be much different from the people about whom you are complaining. They, too, were not willing to wait until Padilla actually set off a bomb. They, too, felt they knew the code words and attitudes well enough to know when a man is a terrorist before he acted, and they, too, felt that something had to be done about it now, before it's too late and thousands have died. They, too, thought they knew that Saddam Hussein would sooner or later commit some horrific act with nuclear bombs, and that waiting until the bombs actually went off, or some other very definite proof was in, was waiting too late.
Fact is, we always have to choose between liberty and safety. It sounds like you're demanding to be dead sure that the government is not going to oppress you. But how are you going to do that? If the government is truly not restrained by moral or legal considerations, then the only way to restrain it is by greater force. You're going to have to set up a more powerful force -- a greater tyranny -- to control the tyranny you only fear might happen. That way lies madness, brother.
when I speak up, here or in real life, it may give confidence to someone else who has been quietly thinking "you know, this doesn't look right."
Yes. Unfortunately, that person may be a Beltway sniper and not an ACLU lawyer. That's why I recommend greater moderation in your activist speech. When for dramatic effect you somewhat carelessly equate the FBI's practises to those of the Gestapo, or fail to make very clear the crucial difference between being eternally vigilant in the mode of Thomas Jefferson and concluding it's time to man the barricades, then you can, indeed, inspire people -- but the wrong people -- to action -- but the wrong action.
A voice of dissent, one who brings up the ideals we all ostensibly believe in, is more important than you think.
Perhaps. But let me suggest that perspective and moderation -- even in a voice of dissent -- are more important than passion and conviction. Fanatics and revolutionaries are a dime a dozen. What distinguishes effective citizens is that they discipline their passions with moderation and courtesy for differing points of view. Your warnings about police abuse of authority will be of no importance, for example, if they only convince/. denizens -- a very small minority of the population. You should speak to appeal also to grandmothers of 65 who have always seen the police as their friend, Southern gals who've uncles or husbands in uniform, corporate vice-presidents of sales who think young men should wear their hair short and show respect to their elders -- in short, a majority of your fellow citizens. Otherwise, you're not doing any real good -- you're just venting.
First off, do I think that some small minority of policemen abuse their authority, and that this needs vigorous prosecution and punishment? Do I think there's an important role for citizen oversite committees and for ACLU lawyers? Absolutely. Just the same way I'm certain a certain minority of corporate CEOs abuse their authority and screw their shareholders -- and so there's a role for FTC oversight. And a certain minority of programmers abuse their talent and write malicious viruses and spyware -- so there's a role for an FBI that goes after bad-hat hackers and puts them behind bars. And a certain minority of boyfriends beat up on their girlfriends (and vice-versa), so there's a role for domestic violence laws and the police should sometimes be arresting guys based on the mere facts that the girlfriend is cowering in fear and sporting nasty cuts on her face. We live in a world of men, not angels.
But there is a world of difference between a minority of policeman illegally, unconstitutionally and occasionally -- e.g. in a few dozen out of the over ten million arrests yearly -- abusing their authority, and the police being able to haul people away and send them to the Gulag for no reason as a matter of state policy.
As another poster has pointed out, when I said "never" I did not mean the police never abuse their authority. That would be as silly as saying Linux programmers never write malicious or stupid code. I meant that arresting someone as described in the article without a warrant could never be done legally, and that, therefore, it is a rare event.
Now if you believe it is not a rare event, then I invite you to provide a smidge of proof. DoJ statistics note there are about 13 million arrests a year in the United States. Can you provide evidence that in, say, as many as 5% of those cases (e.g. for over half a million people per year) the arrests are illegal, or the person arrested suffers physical abuse while in custody? If so, let's hear it. I'd sure like to know. Because what I'm aware of now is only that occasionally the police are abusive, and the proper response is citizen watchfulness. I'm not aware that we're living in some awful Stalinist state where the police are used as an instrument of organized terror, and the proper response is armed revolt.
If all you're saying is that the ordinary citizen is taken less seriously by the justice system than a policeman -- well, BFD. The non-programmer is taken less seriously when he says an application has a bug. The non-scientist is taken less seriously when he says the Big Bang never happened. And so on. It's human nature to take people less seriously when they aren't part of the daily picture, don't belong to the "in crowd," and maybe don't understand all the details and implications. Sucks, but there it is. Maybe the Universe is less fair then you were promised in the brochure.
At what point would you consider it a legitimate concern?
A fair question. So here's my answer.
First and foremost, I would consider it a matter of concern if ordinary citizens had a reasonable fear of arrest and imprisonment for merely voicing their opposition in public to the actions of the government. If you were too intimidated to post what you have, then I'd worry. But as long as someone as exceedingly suspicious as you still feels free to voice his suspicions in public, I think we're safe.
Secondly, I'd consider it worth more concern if the persons being confined were not being heard from. Padilla had top-flight legal representation, far better than I could ever afford, and his case went all the way to the Supreme Court, something normal criminal defendants can only dream of, and every twist and turn of his case was extensively covered by the media. Real police states do their dirty work in secret, at midnight, without lawyers and judges and newspapermen to pry into it, turn over every detail, and publish everything. As long as the cases that worry you are so fully exposed to the light of public inquiry that tens of millions of citizens know about them, I'm not worried.
Thirdly, the true test of the police state is when it acts primarily to defend its own power. That means it goes after those who can provide effective alternate leadership -- opposition politicians, high-ranking disaffected military officers, former government or grassroots leaders. Stalin didn't focus his most vicious purges on mere street criminals, but on his own subordinates whom he thought insufficiently loyal, or on military officers he thought might provide alternate leadership. As long as the defendants we're talking about are lowlife scum like Padilla -- a former Chicago gangbanger who was routinely in trouble with the law and convicted of aggravated assault before he came to the attention of the Feds -- then I'm not especially worried. When the government arrests Senators Feingold or Kerry on trumped-up vague charges, or when former generals anxiously decline invitations to criticize the war effort on CNN, then I'll worry.
Finally, the only way a police state can be sustained is a broad culture of fear and lying, like what was in East Germany, with everyone lying to each other and spying on each other. We don't have that now. We have an extremely vigorous culture of dissent that has absolutely no hesitation at confronting both real and imaginary threats to individual rights from the government. When the American public stops fretting loudly in public about its legal rights, and what the government is doing or not doing, and newspapers no longer run editorials every other week criticizing the Administration, and talking heads on the news broadcasts start being bland reporters of trivia instead of foaming at the mouth about new threats to freedom and liberty under every rock -- then I'll worry a little more.
The police will indeed often come on strong with "demands" that you consent to searches of your belongings, particularly to young people. But it's important to understand that such "demands" are often, from a legal point of view, merely requests that you have the right to refuse. A police officer may search your person or belongings only if (1) he has a warrant to do so (and he's got to show it to you if you ask), (2) he has probable cause to believe you are hiding evidence of a crime and may dispose of it before he can get a warrant, (3) you have just been arrested, or (4) he has your consent, no matter how sneakily it was obtained.
It's important to understand this, because if you don't refuse a "request" to search your belongings, even a "request" apparently phrased as a command or threat ("just show me what's in the briefcase, buddy, or you're in big trouble") -- then you make a warrantless search perfectly legal. Any search becomes legal, and any evidence gathered during it admissable in Court, the moment you consent to it.
I recall a friend who was riding in a car the driver of which was (unfortunately for him) drunk. The car was stopped by the police, who then wanted to search everyone's belongings because they were college kids and the cops suspected them of carrying weed. A cop said to my friend something like: "I'm going to look in your purse now." Possibly he put an "OK?" at the end, but it was phrased in a very statement-kind of way, no real appearance of being a question. So, being young and naive, she naturally took this as a command or random statement and passively allowed the search (thus making it quite legal). But it was actually, technically, legally, a request and she had every right to reply "why, no, officer, that won't do at all -- I do not consent to my purse being searched."
In a case like yours, you could simply refuse (politely) to consent to the search. I don't know if there's much reason not to. If they have probable cause to suspect you of hiding something important, they can search with or without your consent, so your refusal doesn't matter. If they don't have probable cause, your refusal can't be construed as providing it, and can't give them grounds to arrest you if they don't have them already -- and if they do already have grounds to arrest you, it's not very likely they won't just because you consent to a search.
It's worth asking why the police act this way. It's very obnoxious and does indeed alienate a lot of people. I can only suggest they do it because it works -- because in a substantial number of cases, people are so clueless and intimidated that they'll consent to searches even when they know they are hiding evidence of a crime. Maybe they have some silly notion that the justice system will go easier on them if they're all obsequious and cooperative. I don't think that's true, however.
Would we want it some other way? I'm not honestly sure. What the police do is very unpleasant, but it does tend to catch out dumb criminals, and I believe Murray and Hernnstein, who argue that most criminals are nontrivially dumber than average. Would I really want to eliminate a useful method of cheaply nailing a substantial number of criminals? Even though, when I'm caught myself in the method, and despite knowing my rights, it's an unpleasant and alarming experience? Not sure. It's only my pride and my convenience that the police are harming, and I have to set that against their success in apprehending the kind of lowlife who might otherwise force me to put bars on my windows and carry a weapon all the time.
I see. In 2001 there were about 14 million arrests in the United States. Of that number, you can point to one case where someone has been held without being charged with a crime because (or so the government argues) he is a very special case, suspected of being involved in a very special act, the 9/11 attacks, which Congress has defined as tantamount to an act of war against the United States, little different from Pearl Harbor. And you feel this proves the Fourth Amendment is going down the toilet? That we all should shiver in our beds because the Feds might arrest us at any moment, for no reason at all?
No, of course you don't. Not really. If you really seriously believed you could be arrested and imprisoned for no reason whatsoever -- and tortured, forsooth -- you would be much more careful about saying things like this in public. You'd act like people did in the Soviet Union in the 1930s, when you really could be arrested in the middle of the night for nothing at all and then tortured or killed. You'd whisper these kinds of suspicions only to your most trusted friends, and certainly not blat them out carelessly on a public bulletin board for everyone to read -- including the government. The fact that you so easily and openly slam the government is the clearest possible proof that you don't really fear it.
Good grief, in what fascist hellhole do you live? In the United States the police can arrest you without a warrant only if they have very good reason to believe you have just committed, or or about to commit, a crime. Here and here and here are some legal references. "Very good reason" in this context means a reason that will convince a judge not only that you should have been arrested, but also that there wasn't time to get him (the judge) to sign off on it first. Judges really like to be in control, so in practise this means the police can freelance a decision to arrest in only a few well-defined situations.
For example, the police can arrest you without a warrant if an officer has just seen you do something highly suspicious, like run out of a convenience store wearing a ski mask, with a store owner yelling "Stop thief!" in hot pursuit, or a credible witness says they just saw you commit a serious crime -- for example your girlfriend accuses you of slugging her and causing the bruises that appear on her face -- or you match the description of someone wanted for jumping bail on a multiple murder charge, or even if you've been stopped for a minor infraction, like a traffic violation, but proceed to give an obviously false name, refuse to sign the citation, and aren't carrying any valid ID, so they have no way of being reasonably sure you'll appear in Court to answer the summons.
Can the police walk up to you at a public function, where you're doing absolutely nothing illegal, just minding your own business, and showing no indications of fleeing the country -- and arrest you without a warrant? Never.
Why would the FBI engage in such an obvious publicity stunt? Arrest someone right before they're supposed to speak before a group of hackers?
Well, first of all so they'd know exactly where he'd be and when, which lets the operation be organized easily. You don't have to risk an unknown situation popping up and agents at the scene having to improvise, which can lead to dangerous foolishness. Secondly, they can check out the (public) venue beforehand and be certain he didn't have a gun stashed away or something like that. People regularly freak out when being arrested and do dumfuk things like try to shoot it out. If he's a PI, he's almost certainly got a weapon. Arresting someone can be a dangerous moment for all concerned. The FBI will want to minimize that.
They'd better have some serious charges to levy against him, or else they've just shot themselves in the foot.
Well, they can't arrest him without a warrant. So clearly they've got charges ready to file, and a judge has already been convinced he might be guilty of them. They've already told him or his lawyer what at least some of those charges are, of course, when they booked him. But whether anyone is going to tell the public is another story. He may not want to, if it's something embarassing, and the government may not want to, if there's some ongoing investigation and it would tip off other people under suspicion. The public's right to know will be satisfied at the trial, where all the charges must be made public.
On the other hand, maybe the strong voices on both sides are equally hysterical, and the truth is that both national parties, while flawed, pretty much have the best interests of the Republic at heart, and are doing about as well as they humanly can.
See, another thing about being young is one tends to be very passionate about things. Young folks often think The End Of The World is just around the corner, if X or Y doesn't happen soon. Folks past 40 years of age, or thereabouts, tend to be more sanguine. If the Republic survived the Civil War and the Cold War, the Great Depression and the age of robber barons, the corruption of Tammany Hall and the crusading folly of Woodrow Wilson, then it will probably weather the War On Terror(TM), the dire threat of the President possibly monitoring how many times citizens make cell-phone calls to Pakistan, and the inexorable rise in oil prices as the supply dries up.
As for the evil rich versus "the rest of us," let me offer you a thought: in a country like the United States, where inherited wealth is of minimal influence (the average million-dollar fortune lasts less than 3 generations), people generally only become rich because they are good leaders and organizers. The most common way people get rich is by starting their own successful business -- which means they (1) have good original ideas, (2) can persuade others to help implement those ideas, (3) are good at managing the implementation of ideas, and (4) are good at selling those ideas to the general public.
You don't get rich in a modern free economy by using violent force to exploit the masses, like some medieval armored knight. You have to persuade lots of people to buy a product or service you sell, by offering a superior product or better service at a lower price than all the other folks who are also trying to get rich. You have to be good at figuring out what people really want, and good at supplying it. Isn't that exactly the kind of person you'd want in leadership roles? Why would you prefer someone who is too stubborn, self-centered, unfocussed or lazy to be able to earn a good living by the time he is 50 or 60?
Think of it this way: who would you rather have as CEO of the software company for whom you work, someone who has become rich by successfully starting and steering other software companies, bringing wildly-successful products to market? Or someone whose companies always crash because he can't work well with people, or who, even though he's a regular guy and good friends with all the employees, can't make any difficult decisions?
Another point about "the rich" that may be relevant: the most important factor in wealth is age. People in their 20s are relatively poor, burdened with debt from college, poorly paid compared to their skills on paper. Older people are relatively rich, with substantial assets -- houses, stocks, retirement accounts -- and relatively well paid compared to their skills on paper (because they have valuable but unquantifiable experience). Wealth takes time and experience to accumulate, and young people haven't had that time yet. But by the same token, almost all young and relatively poor people will become comfortably well off as they grow older. So if you rail about "the rich" when you are young, it's worth bearing in mind you are railing about your older self.
When you elect someone you elect a person, not a machine that will robotically implement ideas. So people often vote based on personality and character, not just ideas that can be expressed in long written passages. Personality and character come through much more clearly when you can hear someone speak, and watch their face. Tone of voice, gesture, how they look at their audience, facial expression and how it correlates with what's being said -- all these things give the listener unconscious insight into the personality of the speaker.
Electing a leader is unfortunately something like choosing a lover. You have to trust them with really important stuff. You wouldn't pick a girlfriend based solely on her e-mail, would you? You'd need to see her, speak to her in person, to let your gut instinct decide on whether to trust her, whether she shared your deepest ideals. Same general idea.
Why would you register a party affiliation in first place?
(1) To vote in normal (i.e. closed) primaries, and therefore help select the party's candidates.
(2) To have an influence on the party's positions as they're formed, and not only after they're finished and presented to the electorate as a candidate's platform.
(3) To register your general political preference. Whether 60% or 30% of voters are registered Democrats makes a difference in the national debate.
It takes a lot more than winning elections to keep a political party alive and successful (although winning elections is the first thing a party needs to do). There's a lot that has to happen between elections to make sure the party has strong, well-funded candidates at election time, and the machinery to back him up by doing good research on the issues, spreading the message of his candidacy, and getting out the vote on election day.
A political party shouldn't be seen as a big business monolith, with its "product" (a candidate or platform) being designed and debugged by special insider teams, and then presented to the consuming public, to buy or not buy as it chooses. A political party should be more like a co-op venture, a group of citizens who spontaneously organize to design and test the product, everyone contributing what he can at any level. Citizens should be actively involved in all aspects of developing the product -- from early bull sessions kicking around the first, vague half-baked ideas, right through all the alpha and beta testing. Think of this as the "Linux user" method of making sure your "product" is what you want. Citizens should not expect to just passively wait in line outside the "store" when it "opens" on Election Day to see if they want to buy the final released version. This is the "MS Windows user" way of buying a product. Not recommended, unless you're happy to let most of the design decisions about your government be made by some "expert" somewhere.
If you want to make a real difference in our government (as opposed to just Monday-morning quarterbacking its decisions), then join a political party, and give them not only your vote but some of your time and money, too, to help support the between-election activies. Otherwise, you're just not valuable enough to matter, and your voice will -- surprise, surprise -- not be paid nearly as much attention as the voice of someone who digs in and supports them wholeheartedly.
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Oh come on. I assumed by "comment" you meant "say something that has some influence on the outcome of future cases." Like if Justice Scalia makes a "comment" on the law, say in a dissent in some SCOTUS case, then this influences the law, even though he's not on the prevailing side in the case before him. Lower judges and attorneys will take his "comment" into account when deciding how to proceed. It will have influence, even though it doesn't decide a case by itself.
But any "comment" a jury makes by refusing to acquit because they (secretly) don't think the law is just has zero effect on future cases. It's a comment whispered into your pillow late at night. Means nothing. I'm taking the position that a comment that has no effect might as well not exist.
Furthermore, I don't believe that just because the jury refuses to apply the law to one defendant that the law has been "nullified." That's like saying if the police don't manage to arrest someone for a particular crime, then the applicable law has been "nullified." Or if the prisoner dies before trial, or if God strikes the judge dead just before he passes sentence and the prisoner escapes in the hullabuloo. I'm taking the position that a law can only be resonably described as "nullified" if it no longer, in practise, applies to most people most of the time -- not just because it wasn't applied to one person once. Therefore, I'm taking the position that the only reasonable way to understand "jury nullification" is that, in principle, if most juries refuse to convict because they think a law is unjust, then the law stops being enforced even though it's technically on the books. It's certainly possible. But as I said, I doubt it's ever happened.
On the other hand, I'm sure zillions of juries have acquitted for wacky reasons -- they don't like the law, they don't like police, they don't like the judge's haircut, whatever -- that have nothing to do with the facts in the case. But I wouldn't call this "jury nullification" or consider it the result of some great legal principle. I'd just call it the inevitable noise in an imperfect system.
Wow, well said. I wish I'd put it so clearly.
Yes? And so? The decision merely says no judge may guess why a jury decided the facts establishing guilt weren't proven. They could have disbelieved the evidence as to the facts, yes -- and that's how it's supposed to happen -- but they can, if they want, decide the facts aren't proven for any reason or no reason. Because they flipped a coin, because they don't like the law, because they don't like the assistant DA's tone of voice, or because they all have headaches and just want to go home. And then, even if the court becomes aware of evidence suggesting strongly to any rational mind that the jury arrived at its decision whimsically or randomly, even if afterward a juror says oh we just knew he couldn't have done it because he's a cute Gemini (tee hee) -- well, the court can't second-guess its acquittal.
(I'm thinking the defendant could maybe second-guess its conviction, however, in a case like this, since he might argue that a jury was tainted if a juryman said during voir dire he'd decide on the basis of the facts as presented at trial et cetera, but then revealed afterward he'd used some quite different information, not presented in the courtroom, to decide. I believe Martha Stewart made something very roughly like this kind of argument on her appeal.)
But all this all means is that, more or less by accident, because no one can second-guess their reasoning, juries could effectively nullify a law -- if nearly every jury assembled to try a particular type of case acquitted the defendant. Has this ever happened? I doubt it very much. I think it's entirely a theoretical power. Even if a handful of juries acquit because they don't like an unpopular law, I suspect most won't be that radical. I fancy most jurymen are plain, quiet, middle-age folks -- retired second-grade schoolteachers who knit, bus drivers with 15 years seniority and a pacemaker, balding Kinko's managers who manage Little League on Saturdays, your own mother and father. Few are libertarian 19-year-old college students burning with the desire to shake their fist in the face of Authority and channel Patrick Henry ("Give me liberty or death! Yaaaaah!").
Fair enough. I'd vote for it.
Well, I think we need to delve into the roots of why we want our privacy at all. If we're not doing anything wrong, why do we care whether others might find out about it? Why do I care whether someone aims a telephoto lens into my kitchen window and photographs me making dinner, unless I'm cooking up some crack or my freshly-butchered neighbor or I'm in the buff with a boner...?
I suggest the main reason we care about our privacy in conversation is that we know we are intrinsically much more guarded in what we say when we know every last detail of what we say will be recorded and can be quoted, often out of context, later, to anyone at all. And that means we're a lot less likely to be as honest and forthright in any conversation that's being recorded, or which we suspect might be recorded. That hurts everyone.
Let me put it this way. Say you own a small business, and an irate customer calls because one of your salesmen did something bogus -- sold him a widget without mentioning a peculiarity that made him drop it and hurt his toe. Now, if you and he are talking privately -- no recording, no one listening in -- then the conversation will be pretty informal. It might get heated, but it will probably be as honest as it can be. You might be willing to agree your salesmen fscked up, apologize, and offer to make some minor restitution. The guy might be mollified, agree he's a little at fault too, and accept. Problem solved.
But suppose you know the conversation is being recorded, and a jury might hear it later and nail you for $10,000 of damages plus costs? Or it might be played on YouTube and cause you endless PR problems? You're going to be a lot cagier, you're going to admit nothing, argue aggressively that caveat emptor and it's not your salesman's fault, et cetera. And the guy at the other end, he's not going to be willing to admit he might have been a little inattentive, a little at fault, too. So the conversation is less likely to come to a mutually-acceptable end, and much more likely to be a stiff, pointless exchange of talking points. That's not good. Means what could have been a small conflict can become a much bigger and harder to solve conflict.
Basically having a two-party law says conversations are generally "off the record" unless everyone agrees otherwise, and I suggest a big purpose of this is to encourage the greater honesty in conversation that happens when things are off the record.
Sure, it's true people can take notes of a conversation, or memorize parts of it. But these are both very limited ways of recording the conversation, and are bound to generally capture only the high points. It's much harder to take some little tidbit out of context and use it to damn you. Furthermore, you have a plausible defense in that you can argue the fallibility of memory, or the illegibility of the notes, whatever. So it's definitely harder to use the conversation to attack you than if it were recorded in perfect fidelity.
I'm not saying this argument need be convincing. Your argument is sound. It's a tough call which argument should prevail, and probably people feel one way and then the other, depending on what's happened to them lately. Sure, sometimes I wish I could've recorded things the ex-wife said to me over the phone. But then again, there are times I'm right glad she couldn't record what I said. It cuts both ways for most people, sooner or later. That's probably why there's no national consensus on this issue, and different states have substantially different laws.
Gee, take a deep breath. Or consider easing up on the morning coffee.
I disagree that to be acquitted means anything more than that the jury is not convinced of the facts necessary to prove guilt. Other jurisdictions, it's true, make a distinction between "not proven guilty" and "innocent" but the US doesn't, and so I think it's quite reasonable for people to lump the two categories together. In some cases, no doubt, a jury was convinced the accused was innocent. But in others, they were merely not convinced he was guilty. We can't know which was the case in any given trial unless the jury volunteers to say, or we were on it.
Yes, I know the law is continually re-interpreted and reviewed -- by judges. You'll note I was speaking of the police. The police can't review and re-interpret a judge's ruling. Once he's made it, that's it, they have to live with it. At least until some other case comes up, and some judge makes another ruling that affects the matter. That was my point. Do you really disagree?
Finally, while I agree that the bullshit about not being able to convince a jury is a way to save face in this instance, it's often not bullshit.
Erm, I don't recall saying it was always bullshit. Just in this case. So what's your beef?
The result of the criminal trial doesn't affect the civil trial. The People v. Orenthal James Simpson was decided in favor of the latter, but in the civil suit that followed he was convicted.
Some folks think this skates dangerously close to double jeopardy, however, and think that acquittal in a criminal trial should be a presumptive defense against civil charges. They feel it's a tad unfair that if you're acquitted in a criminal trial, and your alleged victims are wealthy enough, they can take another shot at you in civil court (where the standard of proof is lower).
Doesn't work that way. The jury is only the "trier of fact." Their job is only to decide the facts of the case, e.g. "did so-and-so do the following things as the prosecution alleges." It's then up to the judge to decide what the law says should happen if those facts are true.
It's true the jury can refuse to convict if they don't like the law, or for any other random reason. But since the legal system can't ever inquire why a jury didn't convict, it always regards a jury acquittal as implying nothing more than that the facts the prosecution alleged were not proven.
If citizens want a law off the books, their only real recourse is to the legislature. It can't really be done by sitting on juries unless you can get everyone who ever sits on a jury to agree not to convict. Difficult.
Nooo, not legally they can't. "Jury nullification" has no legal standing at all. Judges, subsequent juries, and legislatures are not bound by it. It's nothing more than the common-sense observation that if juries routinely refuse to convict anyone charged with breaking a given law, then the law has de facto (but not de jure) no force.
New Hampshire is traditionally a state where citizens love their privacy. The idea of being a two-party state is to make it damn hard for citizen A to record what citizen B has to say. I don't think that's a bad idea. But I doubt people thought much about the issue of citizens recording the police, probably because they didn't realize -- pre Rodney King -- that this would generate any information useful to the preservation of public order.
Now we know better. Turns out to be very useful to watch the police, as useful as it is to keep an eye on any public servant entrusted with the peoples' power. So I'd say the right thing to do is classify the police -- or any government agent -- in the same way as we classify public personages, like candidates or actors in public. These people by their choice of profession and action implicitly give consent to be recorded. It's not a felony to record John Kerry making a public speech (should you have sufficient stamina or caffeine), or film Mel Gibson getting arrested on Highway 1, even if neither gives his prior consent. These people have chosen to be "public personages" and are in public, and that means they no longer have the same rights to privacy as Joe Citizen.
If the police are out in uniform doing the public's work, it seems to me there should be a clear presumption that they're just as much public personages as a candidate for the state legislature giving public speeches, and that they have implicitly given permission to anyone to film or record them. (An obvious and sensible exception would be when they're undercover, not in uniform.)
I think you have made a very important point, although it is not the jury of which the police are afraid but the judge.
If a jury refuses to convict, all they are saying, technically, is that they are not convinced the prosecutor has proved the facts of the case. It says nothing about the law. Indeed, juries have no power to alter or comment on the law.
But what if the judge makes some rulings about the law? He can do anything from flatly declaring the law unconstitutional to putting a particular interpretation on its language. For example, the chief of police admits recording devices are legal if you post "notices" that warn people about it, and then says that the "notice" the guy had posted was insufficient -- not really a "notice" at all. Oh yeah? Sez who? What if a judge were to make a ruling about what size "notice" is really a notice? It could happen. Almost certainly would happen if this were an important element of the trial. Then the police are stuck with that ruling. They can never make the argument later that a certain notice wasn't really a notice because it wasn't floodlit, was printed in soft purple instead of bold red, et cetera. Whatever the previous judge said constituted a notice is it.
Any rulings a judge makes become precedential, or at least citeable, in other court actions. As you say, this could easily constrain the powers of the government in similar cases later. Better by far to drop the case and avoid the danger.
The bullshit about "not being able to convince a jury" is just a way to save face, of course.
Maybe it's beautifully ideal wierdness.
Mmm, yes. Unfortunately, the statistic I really needed was not the answer to this question: "What fraction of all children are abducted by strangers each year?" -- which is, yes, a very small number -- but rather the answer to this question: "What fraction of children crying next to the open door of a car at the side of the road are being abducted or abused, as opposed to being merely the victims of doofus parenting?" -- which is, unfortunately, probably not so small a number.
Anyway, no little girls were on the news last night, so I guess it all turned out OK.
You raise an interesting point: are the police responding this strongly -- too strongly -- because no one else will?
Today I was riding my bike home from work when I passed a car stopped by the side of a busy road, next to a small park with a bike path. The passenger's side door was open, and a girl about age 10 was standing by it crying. I stopped to watch, surprised. The girl was talking to someone in the car, and she would half get in the car, then step back, then repeat, crying all the time.
What do you think was going on? Doesn't look good, does it? Doesn't that make it remarkable that, as I approached on my bike, and while I was stopped, about three or four other people walked, jogged or rode on bikes past, and of course about two dozen cars drove by -- and no one else stopped? It was also in clear view of some new condos across the street that sell for upwards of $500,000 -- but no one came out of them.
I went up to the girl, and, staying well back (to help the girl feel safe), I looked more closely. In the car was a woman with another child. I asked the child her name, whether the woman was her mother, and whether she wanted to get in the car. She told me her name, said it was her mother, and that she did want to get in the car. The woman said it was her child, and that the girl wanted to get in the car, but wasn't being allowed to because she was in a "time out." I assume the woman was driving when she stopped and put the child out of the car at the side of the road as some kind of punishment. The girl would then be crying because she feared she was about to be abandoned.
After thinking it all through for a bit, I believed the woman. The girl and the woman and the other child in the car looked alike (all blonde wavy hair, similar face, and so on), and when I talked to the little girl she drew away from me and closer to the woman -- that is, she seemed instinctively to trust the woman more than me. The woman's story seemed unlikely for an abductor -- silly, unrehearsed, unlikely to soothe suspicion. So I didn't call the cops. (I did suggest to the woman that, as one parent to another, my advice would be to avoid disciplining her 10-year-old by pretending to abandon her on the side of the road. I said this rather less forcefully than I would have if her children had not been in earshot. For example, I did not call her a fscking idiot who should have been sterilized at menarche.)
I'm still bothered by whether I did the right thing, although the girl climbed in the car after I talked to her seemingly willingly enough, and the car drove off not in any obvious hurry. I hope I wasn't too trusting.
But my point is that it was very noticeable to me that no one else wanted to get involved. Dozens of other adults passed close by and saw what I did -- no one else stopped to take a closer look, make sure the girl was OK.
Perhaps we have come to delegate some of what used to be our normal social responsibility to our fellow man to the police. Small wonder that these things happen, then, although I wish they wouldn't.
Um, when was this golden period of civil rights of which you speak? Can't have been the 80s (Reagan and his eeeeeevil AG Ed Meese), can't have been the 70s (Nixon! Eeek!), the 60s (Selma, Roe v. Wade), the 50s (McCarthy, HUAC hearings), the 40s (Japanese-American internment), the 30s (Grapes of Wrath, Pinkertons beating up strikers), the 20s (ward fixers, no votes for women)....can't have been the last century, with Lincoln suspending habeas corpus and all and the Army shooting on draft protesters...can't even have been the early 19th century, with the Alien and Sedition laws and the government locking up newspaper editors for printing attacks on the President...
So...hmmm...I'm guessing you're talking about the first few months after the Bill of Rights were ratified?
My point is that by historical standards I think you're wrong. The rights you are theoretically granted in the Constitution are more often enjoyed in practise today than at any time in the Republic's history. Perfection has not yet arrived, of course, and some people suggest Guantanamo is evidence of its lack.
But on the other hand, if that's the most important thing they can point to -- when our grandfathers striking the steel mills could point to nightsticks on their head, and our great-grandfathers could point to black men hung to the nearest tree because a white girl cried rape -- well, I think maybe we could use a little humility. We have it good, real good, compared to most of the world, through most of its history. We should not rest until things are better, of course, but whining about how bad it has become for us (when quite the reverse is true) seems a little...graceless.
Well, then you may not be much different from the people about whom you are complaining. They, too, were not willing to wait until Padilla actually set off a bomb. They, too, felt they knew the code words and attitudes well enough to know when a man is a terrorist before he acted, and they, too, felt that something had to be done about it now, before it's too late and thousands have died. They, too, thought they knew that Saddam Hussein would sooner or later commit some horrific act with nuclear bombs, and that waiting until the bombs actually went off, or some other very definite proof was in, was waiting too late.
/. denizens -- a very small minority of the population. You should speak to appeal also to grandmothers of 65 who have always seen the police as their friend, Southern gals who've uncles or husbands in uniform, corporate vice-presidents of sales who think young men should wear their hair short and show respect to their elders -- in short, a majority of your fellow citizens. Otherwise, you're not doing any real good -- you're just venting.
Fact is, we always have to choose between liberty and safety. It sounds like you're demanding to be dead sure that the government is not going to oppress you. But how are you going to do that? If the government is truly not restrained by moral or legal considerations, then the only way to restrain it is by greater force. You're going to have to set up a more powerful force -- a greater tyranny -- to control the tyranny you only fear might happen. That way lies madness, brother.
when I speak up, here or in real life, it may give confidence to someone else who has been quietly thinking "you know, this doesn't look right."
Yes. Unfortunately, that person may be a Beltway sniper and not an ACLU lawyer. That's why I recommend greater moderation in your activist speech. When for dramatic effect you somewhat carelessly equate the FBI's practises to those of the Gestapo, or fail to make very clear the crucial difference between being eternally vigilant in the mode of Thomas Jefferson and concluding it's time to man the barricades, then you can, indeed, inspire people -- but the wrong people -- to action -- but the wrong action.
A voice of dissent, one who brings up the ideals we all ostensibly believe in, is more important than you think.
Perhaps. But let me suggest that perspective and moderation -- even in a voice of dissent -- are more important than passion and conviction. Fanatics and revolutionaries are a dime a dozen. What distinguishes effective citizens is that they discipline their passions with moderation and courtesy for differing points of view. Your warnings about police abuse of authority will be of no importance, for example, if they only convince
Whoa, dude. Take a few deep breaths.
First off, do I think that some small minority of policemen abuse their authority, and that this needs vigorous prosecution and punishment? Do I think there's an important role for citizen oversite committees and for ACLU lawyers? Absolutely. Just the same way I'm certain a certain minority of corporate CEOs abuse their authority and screw their shareholders -- and so there's a role for FTC oversight. And a certain minority of programmers abuse their talent and write malicious viruses and spyware -- so there's a role for an FBI that goes after bad-hat hackers and puts them behind bars. And a certain minority of boyfriends beat up on their girlfriends (and vice-versa), so there's a role for domestic violence laws and the police should sometimes be arresting guys based on the mere facts that the girlfriend is cowering in fear and sporting nasty cuts on her face. We live in a world of men, not angels.
But there is a world of difference between a minority of policeman illegally, unconstitutionally and occasionally -- e.g. in a few dozen out of the over ten million arrests yearly -- abusing their authority, and the police being able to haul people away and send them to the Gulag for no reason as a matter of state policy.
As another poster has pointed out, when I said "never" I did not mean the police never abuse their authority. That would be as silly as saying Linux programmers never write malicious or stupid code. I meant that arresting someone as described in the article without a warrant could never be done legally, and that, therefore, it is a rare event.
Now if you believe it is not a rare event, then I invite you to provide a smidge of proof. DoJ statistics note there are about 13 million arrests a year in the United States. Can you provide evidence that in, say, as many as 5% of those cases (e.g. for over half a million people per year) the arrests are illegal, or the person arrested suffers physical abuse while in custody? If so, let's hear it. I'd sure like to know. Because what I'm aware of now is only that occasionally the police are abusive, and the proper response is citizen watchfulness. I'm not aware that we're living in some awful Stalinist state where the police are used as an instrument of organized terror, and the proper response is armed revolt.
If all you're saying is that the ordinary citizen is taken less seriously by the justice system than a policeman -- well, BFD. The non-programmer is taken less seriously when he says an application has a bug. The non-scientist is taken less seriously when he says the Big Bang never happened. And so on. It's human nature to take people less seriously when they aren't part of the daily picture, don't belong to the "in crowd," and maybe don't understand all the details and implications. Sucks, but there it is. Maybe the Universe is less fair then you were promised in the brochure.
At what point would you consider it a legitimate concern?
A fair question. So here's my answer.
First and foremost, I would consider it a matter of concern if ordinary citizens had a reasonable fear of arrest and imprisonment for merely voicing their opposition in public to the actions of the government. If you were too intimidated to post what you have, then I'd worry. But as long as someone as exceedingly suspicious as you still feels free to voice his suspicions in public, I think we're safe.
Secondly, I'd consider it worth more concern if the persons being confined were not being heard from. Padilla had top-flight legal representation, far better than I could ever afford, and his case went all the way to the Supreme Court, something normal criminal defendants can only dream of, and every twist and turn of his case was extensively covered by the media. Real police states do their dirty work in secret, at midnight, without lawyers and judges and newspapermen to pry into it, turn over every detail, and publish everything. As long as the cases that worry you are so fully exposed to the light of public inquiry that tens of millions of citizens know about them, I'm not worried.
Thirdly, the true test of the police state is when it acts primarily to defend its own power. That means it goes after those who can provide effective alternate leadership -- opposition politicians, high-ranking disaffected military officers, former government or grassroots leaders. Stalin didn't focus his most vicious purges on mere street criminals, but on his own subordinates whom he thought insufficiently loyal, or on military officers he thought might provide alternate leadership. As long as the defendants we're talking about are lowlife scum like Padilla -- a former Chicago gangbanger who was routinely in trouble with the law and convicted of aggravated assault before he came to the attention of the Feds -- then I'm not especially worried. When the government arrests Senators Feingold or Kerry on trumped-up vague charges, or when former generals anxiously decline invitations to criticize the war effort on CNN, then I'll worry.
Finally, the only way a police state can be sustained is a broad culture of fear and lying, like what was in East Germany, with everyone lying to each other and spying on each other. We don't have that now. We have an extremely vigorous culture of dissent that has absolutely no hesitation at confronting both real and imaginary threats to individual rights from the government. When the American public stops fretting loudly in public about its legal rights, and what the government is doing or not doing, and newspapers no longer run editorials every other week criticizing the Administration, and talking heads on the news broadcasts start being bland reporters of trivia instead of foaming at the mouth about new threats to freedom and liberty under every rock -- then I'll worry a little more.
The police will indeed often come on strong with "demands" that you consent to searches of your belongings, particularly to young people. But it's important to understand that such "demands" are often, from a legal point of view, merely requests that you have the right to refuse. A police officer may search your person or belongings only if (1) he has a warrant to do so (and he's got to show it to you if you ask), (2) he has probable cause to believe you are hiding evidence of a crime and may dispose of it before he can get a warrant, (3) you have just been arrested, or (4) he has your consent, no matter how sneakily it was obtained.
It's important to understand this, because if you don't refuse a "request" to search your belongings, even a "request" apparently phrased as a command or threat ("just show me what's in the briefcase, buddy, or you're in big trouble") -- then you make a warrantless search perfectly legal. Any search becomes legal, and any evidence gathered during it admissable in Court, the moment you consent to it.
I recall a friend who was riding in a car the driver of which was (unfortunately for him) drunk. The car was stopped by the police, who then wanted to search everyone's belongings because they were college kids and the cops suspected them of carrying weed. A cop said to my friend something like: "I'm going to look in your purse now." Possibly he put an "OK?" at the end, but it was phrased in a very statement-kind of way, no real appearance of being a question. So, being young and naive, she naturally took this as a command or random statement and passively allowed the search (thus making it quite legal). But it was actually, technically, legally, a request and she had every right to reply "why, no, officer, that won't do at all -- I do not consent to my purse being searched."
In a case like yours, you could simply refuse (politely) to consent to the search. I don't know if there's much reason not to. If they have probable cause to suspect you of hiding something important, they can search with or without your consent, so your refusal doesn't matter. If they don't have probable cause, your refusal can't be construed as providing it, and can't give them grounds to arrest you if they don't have them already -- and if they do already have grounds to arrest you, it's not very likely they won't just because you consent to a search.
It's worth asking why the police act this way. It's very obnoxious and does indeed alienate a lot of people. I can only suggest they do it because it works -- because in a substantial number of cases, people are so clueless and intimidated that they'll consent to searches even when they know they are hiding evidence of a crime. Maybe they have some silly notion that the justice system will go easier on them if they're all obsequious and cooperative. I don't think that's true, however.
Would we want it some other way? I'm not honestly sure. What the police do is very unpleasant, but it does tend to catch out dumb criminals, and I believe Murray and Hernnstein, who argue that most criminals are nontrivially dumber than average. Would I really want to eliminate a useful method of cheaply nailing a substantial number of criminals? Even though, when I'm caught myself in the method, and despite knowing my rights, it's an unpleasant and alarming experience? Not sure. It's only my pride and my convenience that the police are harming, and I have to set that against their success in apprehending the kind of lowlife who might otherwise force me to put bars on my windows and carry a weapon all the time.
I see. In 2001 there were about 14 million arrests in the United States. Of that number, you can point to one case where someone has been held without being charged with a crime because (or so the government argues) he is a very special case, suspected of being involved in a very special act, the 9/11 attacks, which Congress has defined as tantamount to an act of war against the United States, little different from Pearl Harbor. And you feel this proves the Fourth Amendment is going down the toilet? That we all should shiver in our beds because the Feds might arrest us at any moment, for no reason at all?
No, of course you don't. Not really. If you really seriously believed you could be arrested and imprisoned for no reason whatsoever -- and tortured, forsooth -- you would be much more careful about saying things like this in public. You'd act like people did in the Soviet Union in the 1930s, when you really could be arrested in the middle of the night for nothing at all and then tortured or killed. You'd whisper these kinds of suspicions only to your most trusted friends, and certainly not blat them out carelessly on a public bulletin board for everyone to read -- including the government. The fact that you so easily and openly slam the government is the clearest possible proof that you don't really fear it.
Good grief, in what fascist hellhole do you live? In the United States the police can arrest you without a warrant only if they have very good reason to believe you have just committed, or or about to commit, a crime. Here and here and here are some legal references. "Very good reason" in this context means a reason that will convince a judge not only that you should have been arrested, but also that there wasn't time to get him (the judge) to sign off on it first. Judges really like to be in control, so in practise this means the police can freelance a decision to arrest in only a few well-defined situations.
For example, the police can arrest you without a warrant if an officer has just seen you do something highly suspicious, like run out of a convenience store wearing a ski mask, with a store owner yelling "Stop thief!" in hot pursuit, or a credible witness says they just saw you commit a serious crime -- for example your girlfriend accuses you of slugging her and causing the bruises that appear on her face -- or you match the description of someone wanted for jumping bail on a multiple murder charge, or even if you've been stopped for a minor infraction, like a traffic violation, but proceed to give an obviously false name, refuse to sign the citation, and aren't carrying any valid ID, so they have no way of being reasonably sure you'll appear in Court to answer the summons.
Can the police walk up to you at a public function, where you're doing absolutely nothing illegal, just minding your own business, and showing no indications of fleeing the country -- and arrest you without a warrant? Never.
Why would the FBI engage in such an obvious publicity stunt? Arrest someone right before they're supposed to speak before a group of hackers?
Well, first of all so they'd know exactly where he'd be and when, which lets the operation be organized easily. You don't have to risk an unknown situation popping up and agents at the scene having to improvise, which can lead to dangerous foolishness. Secondly, they can check out the (public) venue beforehand and be certain he didn't have a gun stashed away or something like that. People regularly freak out when being arrested and do dumfuk things like try to shoot it out. If he's a PI, he's almost certainly got a weapon. Arresting someone can be a dangerous moment for all concerned. The FBI will want to minimize that.
They'd better have some serious charges to levy against him, or else they've just shot themselves in the foot.
Well, they can't arrest him without a warrant. So clearly they've got charges ready to file, and a judge has already been convinced he might be guilty of them. They've already told him or his lawyer what at least some of those charges are, of course, when they booked him. But whether anyone is going to tell the public is another story. He may not want to, if it's something embarassing, and the government may not want to, if there's some ongoing investigation and it would tip off other people under suspicion. The public's right to know will be satisfied at the trial, where all the charges must be made public.
On the other hand, maybe the strong voices on both sides are equally hysterical, and the truth is that both national parties, while flawed, pretty much have the best interests of the Republic at heart, and are doing about as well as they humanly can.
See, another thing about being young is one tends to be very passionate about things. Young folks often think The End Of The World is just around the corner, if X or Y doesn't happen soon. Folks past 40 years of age, or thereabouts, tend to be more sanguine. If the Republic survived the Civil War and the Cold War, the Great Depression and the age of robber barons, the corruption of Tammany Hall and the crusading folly of Woodrow Wilson, then it will probably weather the War On Terror(TM), the dire threat of the President possibly monitoring how many times citizens make cell-phone calls to Pakistan, and the inexorable rise in oil prices as the supply dries up.
As for the evil rich versus "the rest of us," let me offer you a thought: in a country like the United States, where inherited wealth is of minimal influence (the average million-dollar fortune lasts less than 3 generations), people generally only become rich because they are good leaders and organizers. The most common way people get rich is by starting their own successful business -- which means they (1) have good original ideas, (2) can persuade others to help implement those ideas, (3) are good at managing the implementation of ideas, and (4) are good at selling those ideas to the general public.
You don't get rich in a modern free economy by using violent force to exploit the masses, like some medieval armored knight. You have to persuade lots of people to buy a product or service you sell, by offering a superior product or better service at a lower price than all the other folks who are also trying to get rich. You have to be good at figuring out what people really want, and good at supplying it. Isn't that exactly the kind of person you'd want in leadership roles? Why would you prefer someone who is too stubborn, self-centered, unfocussed or lazy to be able to earn a good living by the time he is 50 or 60?
Think of it this way: who would you rather have as CEO of the software company for whom you work, someone who has become rich by successfully starting and steering other software companies, bringing wildly-successful products to market? Or someone whose companies always crash because he can't work well with people, or who, even though he's a regular guy and good friends with all the employees, can't make any difficult decisions?
Another point about "the rich" that may be relevant: the most important factor in wealth is age. People in their 20s are relatively poor, burdened with debt from college, poorly paid compared to their skills on paper. Older people are relatively rich, with substantial assets -- houses, stocks, retirement accounts -- and relatively well paid compared to their skills on paper (because they have valuable but unquantifiable experience). Wealth takes time and experience to accumulate, and young people haven't had that time yet. But by the same token, almost all young and relatively poor people will become comfortably well off as they grow older. So if you rail about "the rich" when you are young, it's worth bearing in mind you are railing about your older self.
When you elect someone you elect a person, not a machine that will robotically implement ideas. So people often vote based on personality and character, not just ideas that can be expressed in long written passages. Personality and character come through much more clearly when you can hear someone speak, and watch their face. Tone of voice, gesture, how they look at their audience, facial expression and how it correlates with what's being said -- all these things give the listener unconscious insight into the personality of the speaker.
Electing a leader is unfortunately something like choosing a lover. You have to trust them with really important stuff. You wouldn't pick a girlfriend based solely on her e-mail, would you? You'd need to see her, speak to her in person, to let your gut instinct decide on whether to trust her, whether she shared your deepest ideals. Same general idea.
Why would you register a party affiliation in first place?
(1) To vote in normal (i.e. closed) primaries, and therefore help select the party's candidates.
(2) To have an influence on the party's positions as they're formed, and not only after they're finished and presented to the electorate as a candidate's platform.
(3) To register your general political preference. Whether 60% or 30% of voters are registered Democrats makes a difference in the national debate.
It takes a lot more than winning elections to keep a political party alive and successful (although winning elections is the first thing a party needs to do). There's a lot that has to happen between elections to make sure the party has strong, well-funded candidates at election time, and the machinery to back him up by doing good research on the issues, spreading the message of his candidacy, and getting out the vote on election day.
A political party shouldn't be seen as a big business monolith, with its "product" (a candidate or platform) being designed and debugged by special insider teams, and then presented to the consuming public, to buy or not buy as it chooses. A political party should be more like a co-op venture, a group of citizens who spontaneously organize to design and test the product, everyone contributing what he can at any level. Citizens should be actively involved in all aspects of developing the product -- from early bull sessions kicking around the first, vague half-baked ideas, right through all the alpha and beta testing. Think of this as the "Linux user" method of making sure your "product" is what you want. Citizens should not expect to just passively wait in line outside the "store" when it "opens" on Election Day to see if they want to buy the final released version. This is the "MS Windows user" way of buying a product. Not recommended, unless you're happy to let most of the design decisions about your government be made by some "expert" somewhere.
If you want to make a real difference in our government (as opposed to just Monday-morning quarterbacking its decisions), then join a political party, and give them not only your vote but some of your time and money, too, to help support the between-election activies. Otherwise, you're just not valuable enough to matter, and your voice will -- surprise, surprise -- not be paid nearly as much attention as the voice of someone who digs in and supports them wholeheartedly.