I hope no one just cuts and pastes from here. Just a single glance at one of these massive strong cites in your brief will make the judge give you about as much credibility as a tax protester.

Sorry, but no one who uses the phrase "paper terrorism with a straight face is worth the time to listen to.

I'm still waiting for one that will help me respond to stupid arguments from criminal defense attorneys. (Note I did not say that any argument that a defense attorney makes is stupid but some of them are.)

The best (or worst depending on how you look at it) motion to suppress I've ever had to respond to alleged that the police officers did not have probable cause to arrest an individual who had just sold crack cocaine to an undercover officer.

alleged that the police officers did not have probable cause to arrest an individual who had just sold crack cocaine to an undercover officer.



I'm assuming they did?

Any time a crime is committed in an officer's presence, there is probable cause to arrest.

Realist Liberal wrote:

I'm still waiting for one that will help me respond to stupid arguments from criminal defense attorneys. (Note I did not say that any argument that a defense attorney makes is stupid but some of them are.)

The best (or worst depending on how you look at it) motion to suppress I've ever had to respond to alleged that the police officers did not have probable cause to arrest an individual who had just sold crack cocaine to an undercover officer.

The defense bar hardly has a monopoly on such arguments. I once handled an appeal involving a Miranda violation in which I argued that my client's statements and the evidence obtained as a result thereof should have been excluded. The Attorney General responded by arguing (along with other, more plausible theories) that the exclusionary rule does not apply to Miranda violations.

You haven't lived until you've seen a pro se defendant run into a judge's chambers, grab the plaque memorializing said judge's swearing-in, and then run out of the chambers while announcing that the judge no longer has authority over him.

Dang! What a slick trick!

The judge should have shouted "But you didn't get my Admiralty Law certificate, that's why it's in my desk! Bailiff, give that man a taste of the cat o' nine tails!"

The defense bar hardly has a monopoly on such arguments. I once handled an appeal involving a Miranda violation in which I argued that my client's statements and the evidence obtained as a result thereof should have been excluded. The Attorney General responded by arguing (along with other, more plausible theories) that the exclusionary rule does not apply to Miranda violations.

In Oregon v. Elstad, 470 U.S. 298(1985), the Supreme Court held that the “fruit of the poisonous tree doctrine” has no application to “noncoercive Miranda violations.”

I find frivilous legal arguments that sound plausible (what I call latently frivilous arguments) are quite often some of the hardest ones to respond to.

The defense bar hardly has a monopoly on such arguments.

Sorry I didn't make that clear enough. I absolutely agree that the defense bar has a monopoly on such arguments. However, as an intern at a DA's office (and hopefully a future ADA) I don't have to respond to my own stupid arguments.

When I was clerking, our court's library had a guide to tax protester arguments published by the DOJ Tax Division, and I imagine the DOJ keeps it updated, though skimming the website, it appears to be the same stuff I ran across when I wasted time on Usenet in the mid 1990s.

"Paper terrorism" is very real: a number of people have been severely harassed by bogus liens from members of the patriot movement. I also know someone who decided not to join the DOJ Tax Division because she decided that it wasn't worth the harassment from the more insane people prosecuted by the government, as the government doesn't do a lot to help attorneys facing legal harassment.

Kind of interesting, though I'd be more interested in a manual in how to respond to law professors who claim (i) that the NSA is wiretapping their cell phone conversations and puts them on the no fly list if they criticize the Bush Administration and/or (ii) that George Bush may refuse to vacate the White House in 2009.

I'd be more interested in a manual in how to respond to law professors who claim (i) that the NSA is wiretapping their cell phone conversations and puts them on the no fly list if they criticize the Bush Administration and/or (ii) that George Bush may refuse to vacate the White House in 2009.

The important difference (and perhaps one of the best things about law professors) between litigants on the other side of a courtroom and law professors making arguments is that only the former requires a response.

I know a peddler of such claims. I don't enjoy running into him, since it gets really tedious listening to someone try to explain that dollar bills - oops, I mean Federal Reserve Notes - aren't really money since Congress only has the power "to coin money" and they aren't printed by Congress.

Edward A. Hoffman wrote:

Realist Liberal:
I absolutely agree that the defense bar has a monopoly on such arguments.
If you absolutely agree with my point why are you saying the opposite?

Quiet, man! Do you want them to catch on to the secret lawyer code?

There is a flip side to the problem of frivolous claims--some pro se inmates raise real claims that justify relief. Unfortunately, some courts (and court clerks) are in automatic deny mode.

I admire the clerks and judges who take the time to actually read pro se pleadings. I know how hard that is because I get the same arguments in letters from inmates.

Here's one example of how a pro se guy got screwed by judges and government lawyers who didn't bother to read what he wrote:

Inmate files Action A. Action A is dismissed for three reasons. Reason 1 is that Action B is the right remedy. On appeal, high court says that Action B is the right action (to the claim was properly dismissed), but that the inmate was actually right on reasons 2 and 3.

Inmate then files Action B. The same government government attorey asks trial court to dismissed based on Reasons 2 and 3 from the previous case. Remember, the high court just said that the inmate was right on those issues. The government lawyer cites the original opinion in Action A without telling the court that a higher court had ruled for the inmate on Reasons 2 and 3.

Trial court dismisses Action B based on reasons 2 and 3.

Inmate gets me as lawyer. Appeals court laughs at government lawyer at oral argument and gives the represented inmate the relief the law requires.

I've also had other cases in which I have won issues that courts have rejected from pro se inmates. Sometimes, courts make wacky procedural rulings in pro se cases that end up setting stupid law for other cases.

Most pro se inmate claims are fivolous, but enough of the claims have merit that we actually have to read them before we decide whether they have merit.

"oddly enough, perps' tax returns refused to recognize as income anything not received in gold or silver but thoroughly recounted expenses and deductions which certainly had been paid in paper"

Oddly enough.

There needs to just be a standard brief we can all cut and paste to respond to admirality and name capitalization arguments. I may go crazy if I have to read one more cert petition from Republic of Texas guys!

What I want to know is, where do these guys get the money to do all these filings? And the copying! Those cert booklets in SCOTUS aren't exactly cheap, and we'll get three or four copies per case!

I was working Legal Lines one night (where lawyers answer questions for people who call in). One caller had sucked me into a conversation about the surveillance being done on his house. He wanted to know if there was a list of honest judges and policemen that only us lawyers had access to. I don't think he believed me when I said that there was not.

L.S.,

@Temp Guest: I got the same thing reading Lord Denning's Landmarks in the Law, which is also full of 17th century juries causing trouble in the name of civil liberties. That one's about England, though.

Edward Hoffman:

What's the difference between a "coercive" Miranda violation and a "non-coercive" violation? I don't understand how asking a detainee questions without reading him his rights is "coercive." Unless you mean that the resulting statement he got out of the suspect was involuntary. In that case, though, it would be an involuntary statement, not a miranda violation (although I suppose the Miranda violation might be part of the analysis).

And I gotta agree that fruits of an unwarned statement (i.e., a garden variety miranda violation) aren't excluded.

NickM, John Adams would have likely disagreed with you, as would John Jay. The doctrine of jury nullification was also not killed until 1895, more than twenty years after non-white non-landowners were provided the vote and nearly forty years after white non-landowners had the vote.

It's not that the laws changed, so much as the judges got pissed and started writing the right of jury nullification to the most minimal level possible. 1895's Sparf v United States said that judges didn't need to tell juries about their ability to judge the facts and the law. The Fourth District Court and the DC District Court have both affirmed the right of jury nullification within the last forty years, in U.S. v. Moylan and United States v. Dougherty, but those same cases prohibited the Defense from informing the jury of the right of jury nullification. The California Supreme Court has gone so far as to require jurors to report if any of their fellow panelists shown signs of thinking about jury nullification.

It's more that the average viewpoint on jury nullification changes a lot from one field to the next. Your average Joe thinks very highly of it -- since everyone breaks some laws with really stupid reasons for existence, jury nullification is really the only reason a Nifong or two can't arrest most of the populace of the United States for improper storage of used oil.

The legal system, not such a high opinion.

Sparf v. U.S., 156 U.S. 51 (1895) does not say what you think it does. Go check it out on FindLaw. It cites dozens of decisions from earlier parts of the 19th century in support of its holding.

Even Justices Gray and Shiras's dissent agreed with the timeline I set forth (Justices Brewer and Brown agreed with the 5-justice majority on this issue, and dissented on grounds of admission of testimony):

Until nearly 40 years after the adoption of the constitution of the United States, not a single decision of the highest court of any state, or of any judge of a court of the United States, has been found, denying the right of the jury upon the general issue in a criminal case to decide, according to their own judgment and consciences, the law involved in that issue, except the two or three cases, above mentioned, concerning the constitutionality of a statute. And it cannot have escaped attention that many of the utterances above quoted, maintaining the right of the jury, were by some of the most eminent and steadfast supporters of the constitution of the United States, and of the authority of the national judiciary.

It must frankly be admitted that in more recent times, beginning with the judgment of the court of appeals of Kentucky in 1830 in Montee v. Com., 3 J. J. Marsh. 132, and with Mr. Justice Story's charge to a jury in 1835 in U. S. v. Battiste, 2 Sumn. 240, Fed. Cas. No. 14,545, the general tendency of decision in this country (as appears by the cases cited in the opinion of the majority of the court) has been against the right of the jury, as well in the courts of the several states, including many states where the right was once established, as in the circuit courts of the United States. The current has been so strong that in Massachusetts, where counsel are admitted to have the right to argue the law to the jury, it has yet been held that the jury have no right to decide it, and it has also been held, by a majority of the court, that the legislature could not constitutionally confer upon the jury the right to determine, against the instructions of the court, questions of law involved in the general issue in criminal cases; and in Georgia and in Louisiana a general provision in the constitution of the state declaring that 'in criminal cases the jury shall be judges of the law and fact' has been held not to authorize them to decide the law against the instruc-tions of the court. Com. v. Porter, 10 Metc. (Mass.) 263; Com. v. Anthes, 5 Gray, 185; Ridenhour v. State, 75 Ga. 382; State v. Tisdale, 41 La. Ann. 338, 6 South. 579.

156 U.S. at 168-69.

I will note that an earlier portion of that dissent referred to 1829 as the year when Virginia rejected jury nullification.

Moylan and Dougherty speak to the power, not the right, of the jury. Don't confuse the two.

Nick

Oh, and regardless of the history of jury nullification, those tax protestors are indeed moonbats.

epresenting a federal LE agency, Fish and Wildlife Service LE division, I had them seriously argue that there was a game keeper exemption to the 4th Amendment, such that they had a right to conduct searches, without probable cause let alone warrant, of anything (including the person, vehicles, and closed containers in them) if the person appeared to be hunting or returning from a hunt.

I think I can guess where the confusion arose. There is likely to be something in the hunting license application such that, by signing it, the hunter gives consent to such searches. So, someone out in the woods with a license displayed on his clothing would be subject to search without probable cause. Someone clearly hunting without displaying a license is (at least under Michigan law) in violation whether or not he has a license, so many searches could be justified as incident to an arrest. However, if there's no license and insufficient evidence for an arrest, then the search is illegal, however annoying that may be when the game warden is several hours travel from the nearest judge...