Wednesday, August 26, 2009
Monday, August 24, 2009
What strikes me as particularly problematic about the column is that Mr. Thomas makes some gross generalizations about a very complex area of law. I know, I know... It's a blog post not a law review article, but the article seems more geared toward eliciting blogger comments than it does about thoughtfully engaging a serious problem. There are no easy answers when discussing the finer points of Mirandizing suspects or even when, how, and if a police officer can continue to talk with a suspect after they assert their right to remain silent and/or to counsel.
Thomas describes a discussion he had with rapper Prodigy, about Prodigy's recent arrest, and proceeds to list a litany of constitutional violations that stem from improper conduct by police officers after Prodigy allegedly (by Mr. Thomas) invoked his write to remain silent. The facts are simply too unclear in prodigy's story to make some of the logical leaps Thomas does.
The problem with Thomas' analysis is that it makes broad assumptions about a factual scenario about which he has little knowledge. It also too broadly asserts these alleged Constitutional violations, which in the light of the somewhat cryptic progression of Maryland v. Blake, 571 F.3d 331, 2009 U.S. App LEXIS 14609 (2009), just does not seem that clear. If anything, or more appropriately if we read Maryland V. Blake plainly, the Fourth Circuit has clearly upheld the legality of certain communications after an invocation of one's right to counsel. And the Supreme Court dismissed the case after certiorari was improperly granted. See Maryland v. Blake, 546 U.S. 72 (2005).
In an earlier case the Supreme Court wrote:
"[T]he Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term 'interrogation' under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police." Rhode Island v. Innis, 446 U.S. 291, 300-1 (1980) (footnotes omitted).
Applying this test to the facts of Blake (which again are too long to list here, but are linked above), the Fourth Circuit decided that an officer's handing of a piece of piece of paper with a list of the charges and penalties for the accused's alleged conduct and the off-hand comment by the officer,"I bet you want to talk now, huh!" after a suspect invoked his rights, was not violative of the suspects right to counsel, essentially because such communication did not rise to the level of an interrogation. Blake, at 14-19.
I'm not saying that we ought to give law enforcement a free pass or even the benefit of the doubt, but that if we don't slow down and think more clearly about arrests, Miranda rights, etc.; we may come to conclusions that miss the mark. Furthermore we may erode the progress that more thorough criticism has made on the atrocities perpetrated by law enforcement. The facts as Thomas lays them out are not clear cut. We do not know if Prodigy invoked his right to counsel. We do not know what the officer's words were, or the facts surrounding the totality of the communications between the officer and Prodigy. With such an incomplete picture, it is difficult to make thoughtful legal analysis.
The seesawing of protecting a suspects rights and the ability of law enforcement to engage in productive interrogation continues. Thomas argues, "Say Nothing!" This part of the analysis is well placed. As to the analysis of constitutional wrongs, we need a much clearer picture and more thorough analysis given the recent decision of the Fourth Circuit.
-- Nick J. Sciullo
Friday, August 21, 2009
Artist: Wyclef Jean
Track: The PJs
Before I was signed, I used to move on the block
All I wanted to do was rhyme, rhyme, rhyme
Line for line, I make the blind man walk in a straight line
to prison and take a message to Shyne
Peace God from the PJs to Ground Zero
It’s a “Hardknock Life” but “The Sun’ll Come Out Tomorrow”
Walk with a shadow through ghettos, playin’ in every borough
You would think rap was rock they way I carry heavy metal
It such a shame, cocaine in ya veins, screamin’
“Teen Spirit” grippin’ the shotty like Kurt Cobaine
In the projects God, nuttin’ come easy
Gotta deal with the grimy, greasy, the sleazy
Move like a professional, young thug funeral
What chu thought this was another Pepsi commercial?
Nah it’s the art of war, when you least expected it
Wyclef the president, the PJ’s elected him
Thursday, August 13, 2009
"They might think they've got a pretty good jump shot or a pretty good flow, but our kids can't all aspire to be the next LeBron or Lil Wayne. I want them aspiring to be scientists and engineers, doctors and teachers, not just ballers and rappers. I want them aspiring to be a Supreme Court justice. I want them aspiring to be president of the United States."
President Obama identifies a curious diffusion created in some ways by the media. Often, inner city communities are inundated with the notion that the career path that offers the most promise includes basketball or rhyming. Often, superstar black athletes and artists are overrepresented in the media while high acheivement in non-sports or non-entertainment careers are less highlighted. The truth is that many African Americans have acheived in spectacular ways including doctors, lawyers, engineers, Supreme Court Justices and Presidents of the United States. President Obama would like to see this focus become clearer.
Tuesday, August 4, 2009
Johnson, who was already on probation stemming from cocaine possession charges, received his sentence after pleading no contest to two counts of corruption by threat against a public servant under Chapter 838.021 of the Florida Criminal Code.
In the first verse of “Kill Me a Cop”, Johnson raps: “If Officer Bailey care at all/ Get my timing wrong/ Im’ma be puttin’ one in his dome/ Mr. Officer, Mr. Officer/ Try me on the wrong day/ And I’m offin’ ya …” In his next verse, Johnson makes a similar threat against another officer, rapping: “If Officer Campbell/ The Wonder Woman/ Get my timing wrong/ Im’ma be puttin’ one in her dome/ Mrs. Officer, Mrs. Officer/ Try me on the wrong day/ And I’m offin’ ya …” Johnson concludes both verses with: “Call me crazy but I think I fell in love with the sound/ Of hearing the dispatcher saying, ‘Officer Down’ …” You can listen to the full song here.
A handful of lawyers in central Florida have joined the American Civil Liberties Union in looking into Johnson’s case. While it remains unclear whether they will take up Johnson’s cause, any legal action on the rapper’s behalf will require yet another reexamination of just how much protection the First Amendment provides free speech when it is delivered via threatening song lyrics.
Prior Supreme Court decisions have established that the freedom of speech guaranteed under the First Amendment is not absolute. For instance, speech amounting to solicitation of crime or conspiracy is outside the scope of constitutional protection according to Konigsberg v. State Bar, 366 U.S. 36 (1961). Also, speech which is directed to inciting or producing imminent lawless action, and which is likely to incite or produce such action, is outside the scope of First Amendment protection under Brandenburg v. Ohio, 395 U.S. 444-448 (1969). Furthermore, the constitutional freedom for speech does not immunize “speech used as an integral part of conduct in violation of a valid criminal statute.” Giboney v. Empire Storage Co., 336 U.S. 490 (1949).
Of course, Giboney seems to represent the strongest rebuke to any constitutional challenge Johnson may mount over the state of Florida’s punishment of his speech. From this writer’s viewpoint, the specificity of Johnson’s threats will make it very difficult for him to successfully assert protection under the First Amendment.