ADOLPH HITLER, THREATS, AND THE CONSTITUTION

 "Trump should just declare martial law, cancel the transfer of power, and round up the domestic enemies of our republic. The military and the american people would back him. During hitlers first term in office, circumstances were such that it was necessary for him to override the democratic process and become the absolute leader of his country. Trump should prob do the same if necessary or they will throw his family in jail and destroy the country."

In my previous blog, (scroll down at end of this post) I reported on the allegations in US v Hunt, in which the defendant was charged with making a series of violent statements about killing members of our government. One of Hunt"s reasons for his threats was his claim that the United States had become a "Zionist Occupied Government." 

As I predicted, one of his defenses was "I really didn't mean it." To show otherwise, i.e. that Hunt did mean everything he said because, inter alia, he was driven by extreme anti-semitic beliefs, the government introduced in evidence texts that Hunt had exchanged with his father (a retired Queens Family Court judge!)

At trial in Brooklyn last week, the jury heard evidence of the true beliefs behind Hunt's threats. 

The paragraph at the top of this post, urging Trump to emulate Adolph Hitler, is a quote taken from a message Hunt sent to his father.

The jury deliberated for three full hours before coming back with a verdict of "Guilty."

Unfortunately, the maximum sentence is only ten years.

A bientot.

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SUICIDE BY CONSTITUTION

 

In 1949, the head of the Ku Klux Klan sent a defrocked priest to Chicago to make a speech. There were 800 adherents in the auditorium and thousands on the outside protesting his talk. He spoke about the evil being done to this country by Jews, Eleanor Roosevelt, and her deceased husband.  As he urged deportation of the “kikes and niggers,” the crowd outside became more incensed and the speaker poured more gasoline on the flames.The crowd on the inside urged “kill the Jews.” In what the police called a “riot” by a “surging howling mob,” doors and windows were broken but no one was seriously injured. 

 

The defrocked priest was arrested on a charge of “breach of the peace” and was convicted by the local state court. His sentence was a fine of $100. He appealed all the up to the Supreme Court of Illinois and lost.  

 

The conviction was reversed by a 5-4 vote in the U.S. Supreme Court. Justice Black wrote for the majority. His view was that the free exchange of opposing views was protected by the First Amendment even if it causes “unrest.” 

 

Justice Jackson, in his dissent, likened the majority to a man “walking into a well while looking at the stars.” He concluded with this oft-quoted notion: 

 

“There is danger that if the court does not temper its doctrinaire logic with a little practical wisdom, it will convert the Constitutional Bill of Rights into a suicide pact.” 

 

The current Supreme Court doctrines on the subject of free speech versus threats and incitement has much in common with a bucket of eels. It is slippery, unmanageable, and in need of dramatic curative attention.

 

In 1969, Clarence Brandenburg, a KKK leader in Ohio, made speeches attacking “Niggers” and “Jews”, upbraided the government for suppressing the “Caucasian race”, and called for the deportation of Blacks to Africa and Jews to Israel. He also announced plans for a March on Congress on July 4.  He was prosecuted and convicted of “criminal syndicalism,” and sentenced to one to 10 years in prison. That conviction was affirmed all the way up to the Supreme Court of Ohio. 

 

 But his conviction was overturned by the Supreme Court of the United States, in a ruling that remains the prevailing law to this day. The court held that to overcome the defendant's free-speech rights, the prosecutor would need to prove two things: i) the defendant's speech was directed to inciting or producing imminent lawless action and ii) is likely to incite or produce such action. 

 

Don't the pre-insurrection statements of Donald Trump, Rudy Giuliani and others meet those legal requirements? 

 

Here is another pathway to freedom for the bad guys: 

In 1995, my law firm and I were involved in a federal civil case in Oregon. We represented Planned Parenthood and other health providers who were suing a group of extremist anti-abortion activists. We asserted that the defendants’ conduct threatened the lives of our clients. Just as it is illegal to threaten the life of the President of the United States, it is illegal to threaten or intimidate a health provider who is performing abortion services to women who request that service. 

 

 But these defendants did not say exactly “I am going to kill you.” They were a bit more subtle than that. They and their colleagues posted so-called “WANTED” posters of abortion providers. Each time a poster was published, the physician was killed. The defendants not only continued to publish posters, but they also published the home address of the physicians and their families. There was direct evidence at the trial that physicians gave up providing abortion services because they feared for their lives as a result of this poster campaign. 

 

At the trial, the judge charged the jury that they had the responsibility to determine whether this conduct was a “true threat,” and therefore not protected by the First Amendment.  The jury, which included at least two people who were in general opposed to abortion, said, “Yes, this is a true threat.” 

 

But a unanimous three-judge Circuit Court reversed. In his opinion for the tribunal, Judge Kozinski (yup, the jurist who was later disgraced and forced to resign from the bench after it was revealed that he enjoyed watching porno films with his young female law clerks) noted that the defendants did not say they would personally kill physicians, they just encouraged others to do so. Kozinski opined that: 

 

“Merely encouraging or making it more likely that others would carry out…the gruesome mission was constitutionally protected speech.” 

 

That decision was reversed by an en banc Ninth Circuit Court by a vote of 6-5, (two of the dissenters had been on the Circuit Court panel who joined with the Kozinski opinion.) The Supremes denied cert. What would today’s Court do? 

 

Now let’s look at U.S. v Hunt, a criminal case recently brought in the Eastern District of New York. Mr. Hunt, along with so many others, was active on what has become known as “social media.”  In December, he posted the following message on one of his Facebook accounts: 

 

“Trump, we want actual revenge on Democrats. Meaning, we want you to hold a public execution of Pelosi AOC Schumer etc. And if you don’t do it, the citizenry will. We’re not voting in another rigged election. Start up the firing squads, mow down these Commies, and let’s take America back!” 

 

Later that same day he posted this message on Facebook: 

 

Fuck the lockdown po-lice! Yeah, run these pigs over! Anyone enforcing this lockdown mask vaccine bullshit deserves nothing less than a bullet in their fucking head! Including cops! If you are going to shoot someone tho, go after a high-value target like Pelosi Schumer or AOC. They really need to be put down. These Commies will see death before they see us surrender! USA!!” 

 

Two days after the Capitol riot, Hunt posted a video entitled “KILL YOUR SENATORS” that included the summary “SLAUGHTER THEM ALL.” In the video, Hunt says 

 

“We need to go back to the US Capitol when all of the Senators and a lot of the Representatives are back there and this time we have to show up with our guns. And we need to slaughter these motherfuckers… Our government at this point is basically a handful of traitors… So what you need to do is take up arms, get to DC, probably the inauguration… So-called inauguration of this motherfucking communist Joe Biden… That’s probably the best time to do this, get your guns show up to DC, and literally just spray these motherfuckers… Like, that’s the only option… They’re gonna come after us,  they’re gonna kill us so we have to kill them first… So get your guns. show up to DC, put some bullets in their fucking heads. If anybody has a gun, give it to me, I’ll go there myself and shoot them and kill them… We have to take out the Senators and then replace them with actual patriots… This is a ZOG government [Zionist Occupied Government]… That is basically all I have to say, but take up arms against them.” 

 

A few days later, in responding to a social media post of what appears to be former national security advisor Michael Flynn who had called on supporters of President Trump to protest on January 6, and who spoke of a “plan,” Hunt responded  

 

“trust the plan bullshit. Let’s go. January 20. Bring your guns.”  

 

It’s not difficult to foresee the basic tenets of Hunt’s defense: his lawyer is sure to argue that, 

 

1. It was not “likely” that imminent lawless action would result” from Hunt’s rant,[nothing happened on January 20], and therefore, under Brandenburg, Hunt was legally exercising his First Amendment rights. Besides, he really didn’t mean the things he said, so he lacked the subjective intent to follow through, no matter what it looks like. 
   

 

And, 

 

ii) With one minor hyperbolic exception, Hunt was not personally “threatening” the government representatives, he was just "encouraging others to carry out the gruesome mission.” Like five of eleven circuit judges in the Ninth Circuit, an appellate court might agree, and hold that this was not a “true threat” and therefore these remarks were within Hunt’s free-speech rights. 

 

 

 

The current state of incitement and threat law in this country is a mess. Urging a rioting mob to “Kill all the Jews” is not truthful speech designed to lead a democracy to the correct result. Neither is a call for an insurrection that would, by force, prevent the legislature from performing its Constitutional responsibilities. 

 

 A Court holding that protects incitement and threats would risk a severe impairment of what the Founders crafted in 1787. This is a time to make sensible, practical rulings about the effect of speech on our democracy. And you can’t do that from the bottom of a well.

 

A bientot. 

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A more detailed description of the Oregon anti-abortion trial is contained in my memoir, “The Client Decides,” available on Kindle and at Amazon. 

BACK TO BUSNESS AS USUAL

The media this week is in love with the phrase "inflection point." For those of you, who, like me, never used that fancy phrase before Derek Chauvin murdered George Floyd, it means " "significant change, a turning point."  I watch and read a lot of media these days, but so far I have not come across the phrase "wishful thinking" or the word "hogwash."

The conviction of Chauvin is, I fear, better described as a "moonshot" event. The likelihood of a 17-year-old passerby turning on her smart phone and recording 8.5 minutes of a policeman killing a man is one in a million, or something close to that. Before the video of the event became public, here is how the Minneapolis police department described the incident:

"Man Dies After Medical Incident During Police Interaction

May 25, 2020 (MINNEAPOLIS) 

On Monday evening, shortly after 8:00 pm, officers from the Minneapolis Police Department responded to the 3700 block of Chicago Avenue South on a report of a forgery in progress.  Officers were advised that the suspect was sitting on top of a blue car and appeared to be under the influence.

Two officers arrived and located the suspect, a male believed to be in his 40s, in his car.  He was ordered to step from his car.  After he got out, he physically resisted officers.  Officers were able to get the suspect into handcuffs and noted he appeared to be suffering medical distress.  Officers called for an ambulance.  He was transported to Hennepin County Medical Center by ambulance where he died a short time later.

At no time were weapons of any type used by anyone involved in this incident.

The Minnesota Bureau of Criminal Apprehension has been called in to investigate this incident at the request of the Minneapolis Police Department.

No officers were injured in the incident.

Body worn cameras were on and activated during this incident.

The GO number associated with this case is 20-140629."

The release was issued based on computer logs of the officers' report of the event. The Police Department author of the press release had not seen video of the event when he published his report because, he said,  it would have taken "several hours" to get body-camera footage.

What is the likelihood that Derek Chauvin would be spending tonight in jail if that 17-year-old had not recorded  8.5 minutes of his assault on Floyd?

The racists (read Fox News) and, I presume, millions of its adherents, do not see this as a triumph of justice. They do not see it as an inflection point. They see it as mob rule. To them, it's political. Blacks are bad, whites are good. Jim Crow is with us.

Why did eminent jurists such as Ann Coulter and Tucker Carlson insist Floyd died of a drug overdose, -- to use Coulter's sympathetic legal analysis, "enough fentanyl to kill an entire team of Budweiser Clydesdales."

  

Why did Tucker Carlson tell his millions of viewers that "there was no physical evidence that George Floyd was murdered?" and "The autopsy showed that George Floyd almost certainly died of a drug overdose."

Coulter and Carlson were defaming the dead. The autopsy specifically found Floyd's death was a homicide  --"the killing of one person by another." And it listed the means of the homicide: "law-enforcement subdual, restraint, and neck compression."

If Fox, Coulter, or Carlson has apologized, or even corrected the record of their offensive remarks, I missed it. Let me know, please.

The wingnuts will rail on for while about publicity, etc., but Chauvin is going away for a while. My guess is 15. Just a guess.

Next up are the three officers who aided and abetted Floyd's murder. I see it as a simple question:

 If those three law officers happened upon a perpetrator who was in the process of murdering a defenseless prostrate civilian, they would have had a legal duty to intervene and try to stop the killing. The fact that the perp had a badge and gun changes nothing. 

Take em away.

A bientot.

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 QUESTIONS

The Chauvin trial:  

                                                  I

I thought the prosecution put on an overwhelming case. The evidence that Chauvin unlawfully caused the untimely death of George Floyd was convincing and unimpeachable. The best the defense could do in cross-examining the prosecution witnesses was to get one of them to say that Floyd would probably still be alive if he had stayed in the police car.

Question: Wasn’t it the police who let him out of the police car? And didn’t he say “ thank you” when they did that?

Question: So if letting him out of the car was the cause of his death, aren’t the police responsible?

Question: Isn’t it clear that what the police did after he was taken out of the car is what killed Floyd? He was alive, responsive, and even gracious when they took him out of the car. Then they laid him down in a prone position handcuffed behind his back, three officers lying on him, one of them with his knee on his neck, for 9 ½ minutes at a time when he was begging for breath and offering no opposition. So what could possibly be the issue about whether or not they killed him? I can see some discussion about whether this was murder two, murder three, or manslaughter, but what else is there to discuss?

Question: Chauvin refused to testify. A wise move. The prosecution would have sliced him up into tiny little pieces and very likely the jury would’ve learned about the 19 prior complaints against him for excessive use of force. His election not to testify was a no-brainer. The law does not permit, except in rare circumstances, bringing up prior bad acts of the witness, unless he "opens the door" and testifies on direct, in which case he can be cross-examined about his police history.

So why did the judge permit the defense to evince testimony about a prior confrontation in which Floyd was high on drugs? What was the relevance of that testimony? Didn’t the prejudicial value of that testimony outweigh its probative value? There was no doubt that Floyd had ingested drugs. Indeed the prosecution put in the coroner’s report which spelled out in precise chemical detail what drugs and what amounts were in Floyd’s body at the time he was killed.

Question: And if it was proper for the defense to rehearse the history of Floyd’s drug use, didn’t that “open the door” to the history of Chauvin’s abusive behavior? Did the prosecution try? Did they raise it with the judge? If so why didn’t the press

report it?  Bottom line, the prosecution didn’t do it. I dunno why, and nothing I have read or heard in the media explains the decision.

Question: The defense put on a medical expert who contradicted all the prosecution’s experts, and who even contradicted the coroner’s report of an autopsy the witness did not attend. And the witness did not do his own autopsy?

Question: The defense expert also introduced a possible new cause of death into the stew. Carbon monoxide poisoning. He noted Floyd’s head was close to the tailpipe of the running police cruiser. This expert had no evidence that carbon monoxide was the cause of death, no statistics, no science, but he threw it up against the wall anyway. But even if he is correct, hasn’t his testimony incriminated the defendant? It was Chauvin and his colleagues who had complete control of a prostrate, noncombatant prisoner, and they chose to place him face down with his face inches from the tailpipe spewing carbon monoxide from their police vehicle. If it was the carbon monoxide that killed Floyd, then Chauvin is the killer.

                                                            II

In a small town in Minnesota, a 26-year police veteran shot and killed an unarmed black 19-year-old. It is not clear whether he had been pulled over because of a pair of dice dangling from the rearview mirror, or whether the temporary license tag on the new car had expired. At gunpoint, with several police officers in attendance, he was ordered out of the vehicle. He complied and stood while an officer bungled the handcuffing chore. The 19-year-old panicked jumped back into his car and was shot and killed by the veteran police officer while she yelled, “ Taser, Taser, Taser.”

Questions:

Why did the officer even draw her weapon? The subject was unarmed. There was no crowd of hostile onlookers. No one’s life was in danger. There was an order for his arrest because he had been earlier charged with a misdemeanor – so far the press has not revealed the nature of that minor crime.

Is it conceivable the officer mistook her Glock from her Taser? First, the Glock is holstered on the right side of her utility belt, the Taser on the left. The Glock is black, the Taser is yellow. The Glock weighs two pounds, the Taser weighs one quarter of that: 8 ounces. The Glock has a safety device on the trigger on the right side, the Taser has no trigger but is discharged by a button on the left side.

Question: There is no evidence I am aware of that officer Potter set out to kill Daunte Wright, but do not the incredible number and seriousness of Potter’s errors raise the matter beyond negligence? In most jurisdictions, there is a degree of recklessness that, for the purposes of the criminal law, is tantamount to criminal intent. Would Potter have pulled her gun in a traffic stop if Wright had been a white teenager?

Questions:

Title 18, United States Code, section 242, makes it a crime, under color of law, “willfully to deprive a victim of his civil rights.” In the event death results, the guilty party may be “imprisoned for any term of years or for life, or both, or may be sentenced to death.”

Again would the police have pulled Wright over for having dice dangling from his rearview mirror if he were white?

Would Potter have drawn her weapon if Wright were white?

Would Potter have been so unbelievably frantic if it were a white kid at the wheel?

                                                                III

Less than three weeks ago, a Chicago policeman shot and killed a 13-year-0ld Latino boy. Once again the black and Latino community is up in arms. But this case is different. The police were responding to “shots fired.” Two suspects were identified and ran away. The police chased and caught a 21-year-old, but the 13-year-old was faster and didn’t stop. An officer, who believed the boy had a gun, chased him down an alley and called, again and again,” stop and let me see your hands.”

Instead, the boy appeared to retrieve a dark object from his waistband and in one move throw it away and whirl with his hands raised. Too late. Within the fraction of a second it took to accomplish that maneuver the officer had pulled the trigger. So far as the published evidence reveals, there is no indication the officer knew anything about the racial characteristics of the 13- year-old with the gun.

A gun was found nearby. We do not yet have evidence of what it was used for, who used it, etc. We do know that the 13-year- old’s glove and hand had gunshot residue.

At first, the police wanted to publish the cop's body-camera video of the incident, but the family objected. Then they relented.

The black and Latino community of Chicago is upset, Prospective plaintiff’s lawyers are giving television interviews, and tension is building.

Question: So while there are lots of questions to be answered about the activities of that night, I have yet to see in the press the question that occurred to me the moment I read the story. And even though I suspect it will get me into trouble with some of my readers for saying out loud what I suspect many are thinking to themselves, I can’t help but ask it. If it reveals my age, so be it:

The incident occurred at 2:38 AM. What was a 13-year-old doing out at that hour on a school night?

A bientot.

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CROSS-EXAMINATION AND THE ART OF SELF-IMMOLATION

 

I have been watching bits and pieces of the trial of Derek Chauvin. So far we are still on the prosecution case and I do recognize that it is always dangerous to jump to conclusions before you have heard both sides.

I have tried lots of cases in almost 50 years at the bar, both as a prosecutor and as a criminal defense lawyer. (My role as a “prosecutor“ was not to send people to jail, but to serve as a court-appointed prosecutor to remove corrupt and incompetent judges from the bench.) All that in addition to representing plaintiffs and defendants in scores of civil cases. I once made a rough calculation that in my career I spent more than 1,000 days on trial.

So I watched the Chauvin trial from two aspects. First, like everyone else, I was eager to see the real-life drama that had great consequences not only for the defendant, but also for the political and social future of our nation. (Do Republicans see different videos of officer Chauvin's knee on Mr. Floyd's neck than I do? Does Fox really think the trial is not one of today's top five news stories? Does Laura Ingraham really believe the fact that Vice President Kamala Harris has not  had a news conference in 10 days is more important than the fact that Chauvin's supervisor testified that the fired police officer used excessive force in the process of causing Mr. Floyd's death?)

Second, I couldn’t help but observe and make comments about courtroom tactics. Sometimes I made a comment to my wife who is sitting with me, and most often I made the comments to the television set. In any case, neither one responded.

I thought the prosecution's technique of interlacing video and live witness testimony was tremendously effective. It was also clear to me that the prosecutors had worked hard with their technicians to coordinate the presentation of video with live testimony. Nothing is as boring to a jury as frequent pauses in the narrative to get the right slide or video up on the screen or to replace a burned-out lightbulb in a projector. Been there, done all that. Time-consuming preparation is vital, and I thought the prosecutors did an excellent job. 

My criticism of the defense lawyer is that he apparently believes that part of the lawyer's job is to cross-examine every opposition witness. A basic fault. One of a trial lawyer's basic skills is the ability to decide when to speak up, and when to shut up.

We all learned in law school of the classic (mythic?) tale of the lawyer who did not know when to shut up and asked one question too many. The story may not be true, but it dramatically illustrates the point.

The scene: a civil trial, In which the plaintiff is suing the defendant for physical injuries suffered in a barroom fight.  Plaintiff's witness testified on direct he was there when the defendant had bitten off the plaintiff's ear. On direct, he never did say he actually saw that happen, and defense counsel, instead of saving that gem for his summation, proceeded to screw the pooch. The transcript of the cross read something like this:

"Q: So let me get this straight Mr. Witness. The fact is you did not actually see my client bite off the plaintiff's ear. Correct?

A: Yes sir, that’s true."

Dangerous enough, but the lawyer went on to jump off the cliff:

"Q: So why did you testify that he did so?

A: Because I saw him spit it out."

In the Chauvin trial, I watched a portion of the testimony of a young woman off-duty emergency medical technician who happened upon the scene. Her direct testimony was to the effect that she recognized Mr. Floyd was in distress as a result of the officers pinning him down in the prone position, with one of them having a knee on the back of his neck. She offered emergency medical assistance but was rebuffed by a police officer.

Her direct testimony described what she observed. On cross-examination, Chauvin's lawyer attempted to discredit her observations. This was entirely unnecessary (and highly unproductive) given that the jury already knew exactly what had occurred because they had seen a 9.5-minute video of what had occurred. Why would the defense want to rehash those awful facts? I thought the defense lawyer would simply pass the witness.

But instead, he tried to discredit her observations by suggesting she was so dismayed by the scene that her descriptions were inaccurate. The cross went something like this:

"Q: Were you angry?

A: Yes I was.

Q: You were upset?

A: Yes, It was upsetting to me to watch that policeman kill that man.''

Today's overall conclusion:

Even discounting the fact that I was listening to only one side so far, I do not see how Chauvin could escape at least a manslaughter conviction, unless one or two jurors, acting on rock-ribbed racial prejudice, vote not guilty and hang the jury.

In that event, Chauvin would certainly face another state trial, and perhaps a federal civil rights indictment and trial as well.

A bientot.

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