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"Idiot Legal Arguments":
Did you ever need lists of citations to respond to frivolous legal arguments? The ADL's website offers this helpful start. Thanks to commenter "Another Roger" for the link.
Zathras (mail):
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.
11.14.2007 6:46pm
DD:
OT...

David Bernstein: It's Rudy Giuliani (not Guiliani)!

http://en.wikipedia.org/wiki/Rudy_Giuliani
11.14.2007 7:06pm
A. Nonny Mouse:
Sorry, but no one who uses the phrase "paper terrorism with a straight face is worth the time to listen to.
11.14.2007 7:12pm
Opus:
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.
11.14.2007 7:29pm
Realist Liberal:
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.
11.14.2007 7:37pm
Anonymouseducator (mail) (www):
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?
11.14.2007 7:52pm
Realist Liberal:

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.
11.14.2007 8:04pm
Dave N (mail):
Annymouseducator,

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?
If you have to ask, I hope that if you are not a law professor.
11.14.2007 8:07pm
Edward A. Hoffman (mail):
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.
11.14.2007 8:10pm
Ex-Fed (mail) (www):
My favorite stupid prosecutor argument (other than ones I personally came up with) came from a DA out in Riverside. The cops had searched my client's house and seized, among other things, attorney-client communications. I pointed out that these were privileged, and asked the DA to return them voluntarily before I filed a motion. The DA asserted that when the cops seized attorney-client privileged materials, the privilege is "burst" and no longer applies.
11.14.2007 8:20pm
Dave Hardy (mail) (www):
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!"
11.14.2007 8:52pm
Dave Hardy (mail) (www):
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.

I once knew an attorney who thought he had a strong argument that Congress, in defining "dangerous drugs" to be a list of drugs, had violated the standards for irrebuttable (and other) presumptions. After all, it had outlawed "dangerous drugs," and then defined those to be certain named drugs.

On the other hand, representing 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.
11.14.2007 8:57pm
storm1926:

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."
11.14.2007 9:00pm
Dave Hardy (mail) (www):
I forgot, I once was shown a manual for making REALLY looney arguments. One instruction -- I swear this is true -- was that lawyers and judges have this secret code in which everything means its opposite. Except that if you insist, they have to stop that and speak plain English. It advised the reader to engage in a dialogue like this (again, I am not making this up):

Your Honor, I must insist that you speak English to me.

(Judge may protest that he is)

Your Honor, as a certified ambassador of the United States, I insist that you speak English to me.

(Continue as necessary until judge agrees).
11.14.2007 9:01pm
BruceM (mail) (www):
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.
11.14.2007 9:24pm
Edward A. Hoffman (mail):
storm1926 wrote:
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."
That's not exactly what Elstad says. Perhaps more to the point, the violation in my case was coercive and the A.G.'s argument was not limited to non-coercive violations.
11.14.2007 9:32pm
Realist Liberal:

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.
11.14.2007 9:34pm
Edward A. Hoffman (mail):
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?
11.14.2007 9:41pm
Ted F (www):
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.
11.14.2007 9:47pm
fishbane (mail):
Some of that material is really funny. I've heard some of the arguments before, but what is up with the folks that won't take delivery of documents with a zip code on it? I've never heard that one before. Anyone know what the operating theory behind that one is? I understand the loony sovereignty stories, the militia courts, and arguments that the IRS is unconstitutional, but I really don't get the zipcode thing.
11.14.2007 10:09pm
wm13:
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.
11.14.2007 10:12pm
Realist Liberal:

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?


Wow, I'm more tired than I thought. I absolutely agree that the defense bar DOES NOT HAVE a monopoly on such arguments. I blame it on finals which start next week.
11.14.2007 10:48pm
alias:
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.
11.14.2007 10:48pm
storm1926:

That's not exactly what Elstad says. Perhaps more to the point, the violation in my case was coercive and the A.G.'s argument was not limited to non-coercive violations.


then what exactly does it say? i thought your point was that an opposing counsel who argued that the exclusionary rule doesn't apply to Miranda violations was obviously wrong.

i thought the exclusionary rule doesn't have the same affect for miranda violations as it does for fourth amendment violations. but maybe i'm an idiot.
11.14.2007 10:57pm
Steve2:
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.
11.14.2007 11:31pm
Gene Hoffman (mail) (www):
My only concern is that not all the moonabattery is completely moonbattery. Many people used to say that an individual rights interpretation of the Second Amendment was only for the crazies. The link itself - which is quite useful on many fronts - dives a little close to some open questions about jury nullification that have just recently been discussed in quite serious First Amendment contexts here on the Conspiracy.

No matter though, I will say that I wish the tax code was written in a bit more direct language to be more easily useful to beat those who deny its filing obligations over the head with it...

-Gene
11.14.2007 11:40pm
Evelyn M. Blaine (mail):
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?
11.15.2007 2:37am
arbitraryaardvark (mail) (www):
Zip codes: One of their theories is that as an American you have a heritage of liberty under the common law, but only if you stand up for it and refuse to waive your rights, at which point you get labeled a moonbat. They think that there's an intricate set of mechanisms of shadow governments that most people buy into and waive their rights, something about the UCC and admiralty, such that if you apply for a social security number or use a zip code or whatever else, you are waiving your rights and buying into the shadow government's system. That's not completely different from some of what I do, in not waiving my rights to be free of unwarranted searches and takings, e.g. not showing an ID when I go to try to fly or vote, just joined an amicus in Crawford on that point. So while they tend to be wrong on details, there is often some underlying truth involved, and something lost in translation. The Patriot body of lore, and the way law is typically handled in today's courts, are examples of divergent cultural evolution. Randy Barnett's books, and the constitution in exile movement, are about returning to that point where the two split off.
11.15.2007 6:11am
Public_Defender (mail):
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.
11.15.2007 6:54am
Hoosier:
"Kemp takes the position that the use of a ZIP code is voluntary and Kemp refuses to use a ZIP code in any of his correspondence. "

Substitute "envelopes" for "ZIP code," Mr. Kemp. Then us know how THAT works out.

I appreaciate the post. But as a non-lawyer, I'm having trouble figuring out what the alleged-basis of many of these plaitiffs' "arguments" are.
11.15.2007 8:48am
Hoosier:
"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.
11.15.2007 8:58am
Hoosier:
Question Re: Taking the Fifth Amnd. when filing tax return: Is this possible on the line requiring statement of "illegal" income? I hate to take the side of the "mountebanks," as one judge called them. But this strikes me as legitimate. Though foolish, since it would trigger an investigation.

However, the FBI cannot make me tell them if I have smuggled drugs. Can the IRS make me report my drug-smuggling income, under penaly, if I plead the 5th?
11.15.2007 9:07am
Kenvee:
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!
11.15.2007 9:14am
xyz123 (mail):
Realist Liberal,
Don't drop your clerkship. I think the ADA position might be over your head.
11.15.2007 10:16am
Houston Lawyer:
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.
11.15.2007 10:18am
Temp Guest (mail):
Regarding jury nullification: As a non-lawyer I confess to some confusion. I can remember in high school history class being taught to be proud of the American jury that nullified in Crown v Peter Zenger. Has the law changed so much that it is now illegal to advocate or practice what was once proudly regarded as an important part of our Common Law heritage?
11.15.2007 10:21am
martinned (mail) (www):
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.
11.15.2007 10:37am
NickM (mail) (www):
Hoosier - you have a Fifth Amendment right to refuse to disclose the source of the income, but you still have to list the income. This may make deductions in the nature of business expenses very difficult to sustain if challenged by the IRS, but most criminals don't exactly keep the records that would enable proof of those anyway.

TempGuest - it was never universally recognized in the U.S., and during the 1820s to 1850s it was rejected in the states where it had been recognized. If you ever want to really freak a moonbat out, you will point out to them that the courts did away with jury nullification when the jury pool expanded from property owners to all white men and that jury nullification was a manifestation of the upper class's privileges.

Nick
11.15.2007 12:12pm
Monkberrymoon (mail):
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.
11.15.2007 4:00pm
Monkberrymoon (mail):
Having re-read Elstad, I now have a better (though incomplete) understanding of what a "coercive" Miranda violation is.
11.15.2007 4:13pm
gattsuru (mail) (www):
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.
11.15.2007 4:22pm
gattsuru (mail) (www):
I guess I should add that idiotic legal arguments aren't limited to just the defense, prosecution, or their clients.

See the dis Honorable Jack B Weinstein.
11.15.2007 4:34pm
NickM (mail) (www):
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
11.15.2007 5:04pm
Thales (mail) (www):
I believe in Maryland and Indiana it is still legal to advocate jury nullification. In any event, since Bushell's case it has always been controversial whether it's a *right* or simply a *power* of the jury. But what is absolutely right is that jurors can't be punished nor an acquittal verdict set aside as unlawful on the grounds that the judge or appellate court believed the defendant factually guilty of a law the jury chose to disregard (i.e. no directed verdicts of guilty). The courts and legislatures exercise their authority over court rules to deny advocates or litigants the right to advise jurors of their power to nullify. There's actually an interesting out of print book on the historical development of juries by Thomas Green called Verdict According to Conscience.
11.15.2007 7:26pm
Thales (mail) (www):
Oh, and regardless of the history of jury nullification, those tax protestors are indeed moonbats.
11.15.2007 7:27pm
Dave Hardy (mail) (www):
However, the FBI cannot make me tell them if I have smuggled drugs. Can the IRS make me report my drug-smuggling income, under penaly, if I plead the 5th?

I know a defense attorney who advised his drug dealing clients to always report their income as misc. income and pay taxes on it; if audited, they could then take the Fifth.
11.15.2007 7:48pm
markm (mail):
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...
11.15.2007 8:02pm
Gideon Kanner (mail):
I once had a US District judge inform me from the bench, on the record, that the 14th Amendment was not properly ratified and therefore is not valid. I think I should still be able to dig up a copy of the transcript.
11.19.2007 1:29pm