Wednesday, September 8, 2010

The Dog Ate Our Civil Rights

Did you know you could be convicted of a felony for lying to a federal agent? It gets better. Did you know you could be convicted of a felony for lying to a federal agent over a casual (i.e., not pertinent to criminal wrongdoing) remark, even if you were not under oath? You might reply, well, simple, just don't answer a federal agent's questions. If it were only so easy. Did you know that you can be prosecuted for not answering a federal agent's questions? Did you know that you could spend five to eight years in a federal penitentiary for falling short of perfection on any the above scenarios?

You should read this article by Solomon L. Wisenberg, of the law firm Barnes & Thornburg. Here is a synoposis of the article posted at Jerry Pournelle's web site.

Money graf:

[Wisenberg:] "Is there an intelligent alternative to lying or telling the truth that we have not yet examined? Yes. can politely decline to be interviewed by the FBI agent. Tell the agent that you have an attorney and that 'my attorney will be in contact with you.' If the agent persists, say that you will not discuss anything without first consulting counsel. Ask for the agent's card, to give to your attorney. If you have not yet hired a lawyer, tell the agent that 'I want to consult a lawyer first' or that 'an attorney will be in touch with you.' The absolutely essential thing to keep in mind is to say nothing of substance about the matter under investigation. It is preferable to do this by politely declining to be interviewed in the absence of counsel. If the agent asks 'why do you need an attorney?' or 'what do you have to hide?' do not take his bait and directly respond to such questions. (Do not even say that you have nothing to hide.) Simply state that you will not discuss the matter at all without first consulting counsel and that counsel will be in touch with him. If the agent asks for a commitment from you to speak with him after you have consulted or retained counsel, do not oblige him. Just respond that you will consult with your attorney (or 'an' attorney) and that the attorney will be in touch. And by all means do not get bullied or panicked into making up a phony reason for refusing to talk. You are not obliged to explain your decision to anyone."

Pournelle adds (but remember that Pournelle, to the best of my knowledge, is not a lawyer, and neither for that matter am I)...

"The law cannot require me to have an accurate memory; and since I no longer do, it would seem to me simple prudence to say that I am not sure of my recollection and therefore I don't think I should say anything.

"The obvious remedy to this nonsense is to bring back the practice that was standard for most of my life: that which you state under penalty of perjury is in fact accurate under penalty of perjury. That which is simply said to investigators, agents, hirelings and bondsmen of the various regimes is to be evaluated by the agent's experience and judgment. I was brought up on the notion that it was a civic duty to cooperate with the police and authorities, and I count it a major disaster that we have thrown that all away in favor of the rule of fear and terror. The Martha Stewart case was treason against the entire notion of a Republic: not Ms. Stewart, but the 'investigators' who ought to be dismissed and the prosecutors who ought to be disbarred and dismissed with prejudice.

"The notion that one can be prosecuted for denying that you did something that is not a crime to begin with is monstrous and those involved in that prosecution ought to be so ashamed that they withdraw forever from public life. They have neither honor nor good sense."

Does any of this really surprise anyone who was appalled when President Obama proclaimed... excuse me, no, when he bragged that America is not a Christian nation? Well, I guess we're not surprised. If basic Christian fear of the Lord isn't there to hold someone back from treating other people's lives like a singleton in a game of bridge, what will? Nothing, or so it seems. More and more, this does not seem like the country I grew up in.

It used to be that federal agents and district attorneys were well-respected members of society, and the presumption was that they sought justice. Now, it seems safer to say they seek not justice, but scalps -- and Congress has given them the tomahawks with which to acquire them. In this discussion at Pajamas Media of how the Violence Against Women Act enables women to use the law to settle scores with their hapless ex-husbands and -boyfriends, in the Comments section, the following post by someone who calls himself "Bond" made the hairs stand up on the back of my neck:

"I am a surety agent, bail bondsman and bounty hunter, in Michigan. My company does between 5 and 10 Domestics a week and about a 1000 bonds a year. My best estimate of Domestics is that roughly 95% are a shouting match with no physical contact (how do I know this, I get to see virtually all of the VICTIMS and they tell me so). A neighbor, in-law, child, spouse calls 911 and someone IS going to jail. Almost always the male.

"Out of 10 Domestics we see repeats ALL THE TIME. I would estimate 1 out of three will have a repeat within two weeks. Often it is a disgruntled neighbor, in-law, child or spouse trying to get back at the defendant and they see them and call and the police go pick them up, no questions asked. Don’t even need to be near the ‘Victim’ and the victim may not even agree with the re-arrest, BUT that doesn’t matter. It’s the law

"Currently I have a client who is at level 4 which is where the charge changes to aggravated stalking. He is in a divorce situation and to say his wife is angry would be putting it lightly. He has not seen his soon to be ex-wife since February or talked to her, but she has been doing things like setting up emails for him and sending herself nasty statements. Or she saw him walking down the street or driving his car somewhere and felt threatened and yes he gets re-arrested.

"The Prosecutor is well known in this county for being a horror show when it comes to Domestic and this judge is sort of an odd duck. In any event the defendant is now sitting on a $125,000 bond (I have never seen a bond this big on a domestic) and the prosecutor is trying to put him away in the Big House in Jackson with a plea bargain. Plea bargains are the norm and their [sic] are a zillion ways for a prosecutor to use this tool to twist the arm of guilty and not guilty individuals into taking a plea.

"From a guy in the trenches, trust me on this one, you are guily [sic] until proven innocent in the this country. Furthermore prosecutors have more power than God or judges and the system often doesn’t work as intended (good law gone bad). At least that’s what I see all the time. There are bad people and guilty ones at that, not saying there aren’t, but there is a healthy small percentage of people in jail that were railroaded.

"From my vantage point in order to be a prosecutor you either have to have to be born without a heart or have it cut out before you can become one. They are ruthless as a group in my view.

"...Oh the stories I could tell you."

Just remember all this the next time someone complains about a "do-nothing Congress" or "gridlock". Gridlock isn't a bug; it's a feature. It isn't like passing laws for the sake of passing laws is such a wonderful thing. The good laws were already written years ago, but Congress doesn't mind writing bad laws to keep their hats in. Every new law imposes both foreseen and unforeseen costs on citizens. And, when you cannot routinely expect prosecutors and federal agents to behave in an honorable fashion, those bad laws will be used against people who have done little to justify the horrible consequences that come their way.