ATTORNEY PAUL A. KSICINSKI 414-530-5214
ATTORNEY PAUL A. KSICINSKI
TOP 100 WISCONSIN CRIMINAL DEFENSE LAWYER
​414-530-5214
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COURTS SAY YOU ARE NOT SECURE IN YOUR VEHICLE FROM THE POLICE

5/31/2021

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One of the main reasons America was founded was because of British general warrants.  Using "writs of assistance," the King authorized his agents to carry out wide-ranging searches of anyone, anywhere, and anytime regardless of whether they were suspected of a crime. These "hated writs," Stanford v. Texas, 379 U.S. 476, 484 n.13 (1965) spurred colonists toward revolution.  Stanford, 379 U.S. at 481 (“Vivid in the memory of the newly independent Americans were those general warrants known as writs of assistance under which officers of the Crown had so bedeviled the colonists.”) See also Marcus v. Search Warrant of Property, 367 U.S. 717, 729 (“The Bill of Rights was fashioned against the background of knowledge that unrestricted power of search and seizure could also be an instrument for stifling liberty of expression.”). The problem of general warrants directly motivated James Madison to write the Fourth Amendment.

The bad news for Americans is that general warrants are back.  Today general warrants are contained in the traffic code.  Barbara C. Salken, The General Warrant of the Twentieth Century? A Fourth Amendment Solution to Unchecked Discretion to Arrest for Traffic Offenses, 17 Pace L. Rev. 97 (1997), https://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=1405&context=plr

The Fourth Amendment provides, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated."  But courts have created an incredible number of exceptions to that rule: because vehicles are mobile, citizens are not secure in their car and maybe seized and searched for any of the possible 1000s of traffic violations which exist even if upon conviction you cannot be placed in jail.
 
Don’t take my word for it.  Ask Ms. Atwater.   Atwater was traveling approximately 15 miles per hour with her crying children in her pickup truck in a suburban neighborhood when she was pulled over by Officer Bart Turek for no seatbelt on.  Atwater v. Lago Vista, 532 U.S. 318 , 121 S.Ct. (2001).  Clearly Atwater was a criminal.

Turek approached and yelled "we've met before" and "you're going to jail." When Atwater's children began crying and were upset, she asked Turek if she could take them to a friend's house down the block. Turek told her "you're not going anywhere." Atwater's purse had been stolen the day before which meant her driver's license and insurance were missing. Turek allegedly replied that he had "heard that story 200 times." According to Atwater, she was apologetic about the seatbelt violation and took responsibility for her actions. Luckily, the nearby neighbor learned what was going on and arrived to take charge of the children. Otherwise, Turek had apparently threatened to take the children into custody as well. Atwater was handcuffed and placed in the police car, but interestingly, Turek did not seatbelt her.

At the police station, Atwater’s shoes, jewelry, eyeglasses were taken and she emptied her pockets. Officers took her mug shot and placed her alone in a cell for about one hour, after which she was taken before a magistrate and released on a $ 310 bond. Later, she pleaded no contest to the seatbelt violation and paid a $ 50 fine. The other charges were dismissed presumably because Atwater was able to produce the valid driver's license and insurance. Finally, Atwater claimed that her children were so traumatized by this incident that they required psychological therapy. So even though under the worst possible penalty for this offense, Atwater could not go to jail.   Nevertheless, police through her in jail before she was released.  Incidentally, under Wisconsin law when a stop involves a minor equipment violation or seatbelt offense, courts hold there is a reasonable basis for the search of his vehicle.  State v. Moretto, 144 Wis. 2d 171, 423 N.W.2d 841 (1988).
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So much for the right of the people to be secure in their persons.
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IS IT TOO MUCH TO ASK FOR JUDGES TO BE INTELLECTUALLY HONEST?

5/18/2021

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In 2011, Ronald Dworkin wrote in The New York Review , https://www.nybooks.com/articles/2011/05/26/courts-embarrassingly-bad-decisions/ about the intellectual dishonesty of several recent decisions by Justice John Roberts and Justices Anthony Kennedy, Antonin Scalia, Clarence Thomas, and Samuel Alito.   Dworkin is a major figure in American Jurisprudence, unlike most of the Supreme Court Justices, whose backgrounds are quite ordinary. According to a survey in The Journal of Legal Studies, Dworkin was the second most-cited American legal scholar of the twentieth century.   After his death, the Harvard legal scholar Cass Sunstein said Dworkin was "one of the most important legal philosophers of the last 100 years.”

Dworkin found it unacceptable for a judge to decide a case based on an agenda rather than the issues and law in a case:

So if a justice is disposed to advance [certain] goals through his decisions, he must invent arguments that disguise rather than exhibit his actual motivating convictions. These are likely to be artificial and therefore bad arguments.

Unfortunately, today many judges disguise rather than exhibit their actual motivating convictions.  It is extremely sad when such a judge sits on the US Supreme Court.

In an article titled “Elena Kagan Has Had Enough of Brett Kavanaugh’s Judicial ‘Scorekeeping’” by Mark Joseph Stern, https://slate.com/news-and-politics/2021/05/edwards-vannoy-kagan-kavanaugh-scorekeeping.html Brett Kavanaugh’s bad arguments were laid bare as follows:

Last year, the Supreme Court issued a landmark decision in Ramos v. Louisiana, prohibiting nonunanimous convictions of criminal defendants. Under the Constitution, the court declared, a split jury verdict is “no verdict at all.” On Monday, however, the court walked back this declaration. In Edwards v. Vannoy, the conservative majority held that Ramos does not apply retroactively—that is, to defendants who have already been convicted by split juries. The court then took the extraordinary step of overturning precedent that had allowed retroactive application of new decisions. No party asked the Supreme Court to reverse this precedent; the question was not briefed or argued. But Justice Brett Kavanaugh’s majority opinion reached out and grabbed it anyway, slamming the courthouse door on convicted defendants seeking the benefit of a new Supreme Court decision.

Kavanaugh’s overreach drew a sharp dissent from Justice Elena Kagan.  The justice also responded to Kavanaugh’s charge that she is a hypocrite, criticizing his cynical view of “judging as scorekeeping.” It appears that Kagan is losing patience with Kavanaugh’s efforts to “insulate” himself from criticism with rhetoric that obfuscates the cruel consequences of his decisions.

Since joining the bench, Kavanaugh has sought to frame himself as an honest broker who empathizes with the parties he rules against. In Bostock v. Clayton County, he spent 27 pages explaining why the Civil Rights Act does not protect LGBTQ employees but closed by praising the “exhibited extraordinary vision, tenacity, and grit” of gay Americans. In the peace cross case, Kavanaugh voted to uphold a huge cross on public land while expressing his “deep respect for the plaintiffs’ sincere objections,” as well as their “distress and alienation.” In the DACA case, Kavanaugh empathized with Dreamers who “live, go to school, and work here with uncertainty about their futures,” then voted to let them be deported. And last month, in Jones v. Mississippi, he restored juvenile life without parole while highlighting “moral and policy arguments” for the early release of juvenile defendants that can be presented “to the state officials authorized to act on them.”

Justice Kagan says Kavanaugh is being intellectually dishonest.

Kagan’s dissent in Edwards  explains Kavanaugh is trying to “bank capital” by flaunting his empathy, as if he can mitigate the unjust effects of his most conservative opinions. His deep concern for the losing party should offset the actual ramifications of his actions. When he supports a liberal outcome, even better: He can defend himself against future charges of callousness by pointing to his past votes. In doing so, Kavanaugh seeks to “insulate” himself from criticism when he writes a decision like Edwards, which will keep people locked up on the basis of “no verdict at all.”

In Edwards, Justice Kagan’s dissent explained how Kavanaugh’s decision was an attack on precedent. “The majority gives only the sketchiest of reasons for reversing Teague’s watershed exception,” Kagan wrote. “Seldom has this court so casually, so off-handedly, tossed aside precedent.” And it did so even though “no one here asked us to.” The result is fundamentally unfair: Thousands of people will remain behind bars, some for life, because they happened to exhaust their direct appeals before Ramos came down.

Kavanaugh, stung by the criticism, responded by accusing Kagan of posturing. “It is of course fair for a dissent to vigorously critique the court’s analysis,” he scolded. “But it is another thing altogether to dissent in Ramos and then to turn around and impugn today’s majority for supposedly shortchanging criminal defendants.” Kavanaugh wrote that “criminal defendants as a group are better off under Ramos and today’s decision, taken together, than they would have been if Justice Kagan’s dissenting view had prevailed in Ramos.”

In her final footnote, Kagan responded to this charge. Kavanaugh’s claim that he is “properly immune from criticism” because of Kagan’s position in Ramos “is surprising,” she wrote. She went on:

It treats judging as scorekeeping—and more, as scorekeeping about how much our decisions, or the aggregate of them, benefit a particular kind of party. I see the matter differently. Judges should take cases one at a time, and do their best in each to apply the relevant legal rules. And when judges err, others should point out where they went astray. No one gets to bank capital for future cases; no one’s past decisions insulate them from criticism. The focus always is, or should be, getting the case before us. 
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The word of law limits governmental power

5/4/2021

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"{W}ords are how the law constrains [governmental] power. In this case, the law’s terms ensure that, when the federal government seeks a procedural advantage against an individual, it will at least supply him with a single and reasonably comprehensive statement of the nature of the proceedings against him. If men must turn square corners when they deal with the government, it cannot be too much to expect the government to turn
square corners when it deals with them." Justice Gorsuch, Niz-Chavez v. Garland, 593 US _____(2021), slip opinion, p.19
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    These are reflections I have had about our criminal justice system.  Some of it may make sense, some of it might not.

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