What would that explanation be?

As per Grand Island, all explanations are lies unless they are a confession of guilt.

Retest it in a lab and if the original test was a false positive, drop the charge. I believe that's the procedure.

Only it takes 42 days, or sometimes, 5 years for them to get around to doing that. One woman was basically extorted into taking a plea deal over a white crumb in her car which ruined her career with a felony conviction, and it took that long for the lab to do the real test and determine it was not what the field test said it was.

I remember Nolu Chan seemingly not wanting to blame the legal system as broken for that, blaming instead the woman for not voluntarily remaining in jail, rejecting the advice of her court appointed attorney, taking it to court and risking years in prison, all without knowing the full ramifications of taking the plea deal. And that while she was aware of the possibility it was a piece of crack cocaine belonging to a hitchiker she had in the car at the time who denied any wrong doing.

Yes, a wonderful system we have her. Let's continue to use these faulty field test kits that cannot even be admitted in court to totally screw over people's lives.

Only it takes 42 days, or sometimes, 5 years for them to get around to doing that.

How long to execute someone after they've been found guilty -- 15 years?

Here's a thought -- don't carry around 92 grams of laundry detergent in an unmarked baggie, then refuse to cooperate.

And that while she was aware of the possibility it was a piece of crack cocaine belonging to a hitchiker she had in the car at the time

Yeah. Go with that.

I was watching some cop show where the scumbag was searched and had drugs in his pants pocket. He said they weren't his. When asked how they got there, he said they must have been there when he bought the pants.

The explanation is on a par with your "hitchhiker" story.

What would that explanation be?
As per Grand Island, all explanations are lies unless they are a confession of guilt.

Still can't come up with one, huh?

Retest it in a lab and if the original test was a false positive, drop the charge. I believe that's the procedure.

It would be... most do it that way. I did it different. In many cases, I confiscated my evidence, and let the scumbag go. Once the lab results came back, I got a warrant. It also works well because at the time of interdiction, you might not need Miranda, since they were released. Everything they say after you advise them they are free to leave, is admissible. Drug users are fucking stupid. Drugs do kill brain cells.

Here's a thought -- don't carry around 92 grams of laundry detergent in an unmarked baggie, then refuse to cooperate.

IOW, waive your 5th Amendment rights.

Got it. Legal advice from a true expert!

The explanation is on a par with your "hitchhiker" story.

Dude... if you read the whole thing....

It wasn't crack. It was not anything illegal. At all. And it destroyed a woman's career by tainting her with a felony conviction.

Still can't come up with one, huh?

I think you would be quite at home in either Nazi Germany or Stalin's USSR.

Retest it in a lab and if the original test was a false positive, drop the charge. I believe that's the procedure.

[Pinguinite #42]

Only it takes 42 days, or sometimes, 5 years for them to get around to doing that. One woman was basically extorted into taking a plea deal over a white crumb in her car which ruined her career with a felony conviction, and it took that long for the lab to do the real test and determine it was not what the field test said it was.

I remember Nolu Chan seemingly not wanting to blame the legal system as broken for that, blaming instead the woman for not voluntarily remaining in jail, rejecting the advice of her court appointed attorney, taking it to court and risking years in prison, all without knowing the full ramifications of taking the plea deal. And that while she was aware of the possibility it was a piece of crack cocaine belonging to a hitchiker she had in the car at the time who denied any wrong doing.

It did not take 5 years, or even 1 year, to test the sample. Albritton was arrested August 3, 2010, booked on August 4, 2010 at 3:37 a.m., and was convicted upon her plea of guilty on August 5, 2010. Following a guilty plea, confirmatory lab testing loses urgency. The lab test was performed on February 28, 2011.

There was no hitchhiker involved. The driver of the vehicle, Anthony Wilson, was her boyfriend who had no license to drive. As the owner of the vehicle, Albritton was responsible for what was found. Albritton consented to the search.

Albritton most certainly knew she was pleading guilty to a felony. She signed a waiver of indictment which read, "I am the defendant in the above felony information. My attorney has explained to me my right to be prosecuted by grand jury indictment, which I hereby waive, and I consent to the filing of the above felony information."

And there is the incident report:

Incident Report:
EVIDENCE:
OFFICER HELMS FOUND THE CRACK ROCK ON THE PASSENGER FRONT SEAT FLOOR BOARD AND TOOK CUSTODY OF THE EVIDENCE. I FOUND THE UNKNOWN POWER (sic) IN THE CENTER CONSUL (sic) AND THE USED NEEDLE HIDDEN IN BETWEEN THE LINING OF THE ROOF ON THE DRIVERS SIDE. OFFICER HELMS

You do not remember what nolu chan said in 2016. You misremember. As I noted in 2016:

The defendant's profession of innocence plays no role in explaining the legal alternatives and explaining an offered plea bargain. In this case, he [the appointed lawyer] should have explained that she could take 45 days or plead not guilty and possibly do several years, depending on the confirmatory drug test. Her professions that the drugs belonged to the boyfriend speak to her expectation that the presumptive drug test would be confirmed. It was her car. She got arrested because the evidence was found in her car. If the evidence were to be confirmed, she could/would be convicted.

If she pleaded not guilty and waited for the confirmatory drug test result, there is no guarantee the 45-day offer would still be there.

Albritton sued for damages in Federal district court in 2016. Her suit for damages was dismissed on the merits, with prejudice, on 28 March 2017.

Albritton et al v. The City of Houston, Texas et al, U.S. District Court, Southern District of Texas (Houston), 4:16-cv-02662, Doc 31, MEMORANDUM AND ORDER (28 March 2017)

[Excerpt at 13-14]

Albritton premises the County's liability on the District Attorney's Office's use of unreliable evidence as part of its actual prosecution and conviction of Albritton, its lack of appropriate policies related thereto, and its offer of a plea bargain to Albritton. These allegations involve "classic law enforcement and investigative functions" carried out by the District Attorney's Office in its prosecutorial capacity as an agent of the state. Id. at 855. Accordingly, Albritton's claims against the County are subject to dismissal.

[Excerpt, ORDER at 19]

For the foregoing reasons, it is

ORDERED that Defendants City of Houston and David Helms's Motion to Dismiss (Document No. 10) , Defendants Harris County, Texas and Harris County District Attorney Patricia Lykos's Motion to Dismiss Pursuant to FRCP 12(b)(6) (Document No. 13), Defendant Due Nguyen's Motion to Dismiss (Document No. 19), Defendants City of Houston, David Helms, and Due Nguyen's Supplemental Motion to Dismiss (Document No. 27), and Defendants Harris County, Texas and Harris County District Attorney Patricia Lykos's Supplemental Motion to Dismiss (Document No. 28) are GRANTED and Plaintiffs' claims against all Defendants are DISMISSED on the merits with prejudice. A Final Judgment will be entered separately.

It did not take 5 years, or even 1 year, to test the sample. Albritton was arrested August 3, 2010, booked on August 4, 2010 at 3:37 a.m., and was convicted upon her plea of guilty on August 5, 2010. Following a guilty plea, confirmatory lab testing loses urgency. The lab test was performed on February 28, 2011.

Okay, great. I stand corrected.

But then they didn't bother to notify Albritton until July 29 2014, about 3.5 years AFTER they discovered she was innocent, and almost 4 years after the ordeal began.

www.nytimes.com/interacti...ent-Innocence-letter.html

And if the account of an investigative journalist is correct, it was that journalist that was the first inform Albritton of the formal lab results, not the prosecutor's office. So all in all there is/was still a FUBAR situation within the state's legal system.

This appears to be a reasonably factual rundown on all that happened which mentions not only Albritton but a few hundred others who took plea deals in cases where subsequent tests found no drugs were present from this one jurisdiction.

trofire.com/2016/07/11/di...ar-drugs-false-positives/

By your own postings, Albritton was told that if she plead guilty, she would receive a much lighter sentence. That in spite of the fact that when people are asked by a judge about their state of mind in relation to pleading guilty, they are supposed to be doing so WITHOUT it being in exchange for anything whatsoever. So if in her case, if she affirmed that, then she flat out lied to the judge when she did so. And she lied to the judge because it was required to save herself from years in prison.

And anything and everything she signed and/or confessed to in official legal documents was done done *under coercion*. Now you can pretend that there was no coercion there if you want and cite the court verdict, but that is simply living in denial. Just because the courts are obligated to pretend that the papers she signed were signed honestly without coercion doesn't mean there wasn't any coercion because everyone knows it's there.

EVERYONE who pleads guilty in exchange for a lighter sentence lies when they say they are doing so freely and NOT in exchange for something.

It is all a total farce. I know it, prosecutors know it, those taking plea deals know it, and the judges know it too. But on paper it looks good so that's why it's required. You seem to be the only one that is in denial as you essentially treat the legal system as a priest would treat his religion. And I'm totally serious about that. I totally respect you for your desire for accuracy in all legal matters, but at the same time, I do criticize you for failing to recognize that the system, quite often, fails and does so in a manner that is not the fault of the people who are wrongly convicted EVEN IF they take a plea deal. This is a case of "the customer is always right" and the customers are the average people, like Albritton.

And it failed Albritton along with hundreds, thousands, hundreds of thousands and perhaps millions of people.

Okay, great. I stand corrected.

HAAAAAAA... that’s a fucking understatement.

You swallow Dicktards kook aid... you gulp that shit down with your already set in place police hatred... and he can sell you a fucking bridge for a dollar.

Dicktard does to you, what CNN does to the angry young stupid sheep. They slant the news to form hatreds... and after that, those stupid fuckers buy anything LameStreamMedia reports.

EVERYONE who pleads guilty in exchange for a lighter sentence lies when they say they are doing so freely and NOT in exchange for something.

That’s the biggest load of horseshit I’ve seen on here in a while. I wouldn’t call you a filthy fucking liar... because I know you’re too fucking stupid to know that’s not true.

And if the account of an investigative journalist is correct, it was that journalist that was the first inform Albritton of the formal lab results, not the prosecutor's office. So all in all there is/was still a FUBAR situation within the state's legal system.

As you know, she moved and left no forwarding address. A copy was mailed to Albritton's last known address and was found to be undeliverable. Albritton showed no interest in obtaining the lab results.

By your own postings, Albritton was told that if she plead guilty, she would receive a much lighter sentence.

The offered deal was for a 45 day sentence which is what she got. She served 21 days. Going to trial offered no time at all if not convicted, or likely 2 years if found guilty.

EVERYONE who pleads guilty in exchange for a lighter sentence lies when they say they are doing so freely and NOT in exchange for something.

It is all a total farce. I know it, prosecutors know it, those taking plea deals know it, and the judges know it too. But on paper it looks good so that's why it's required. You seem to be the only one that is in denial as you essentially treat the legal system as a priest would treat his religion.

I try to say what the law actually is, not what it should be. Disposing of most case by plea bargain IS the system.

nolu to Pinguinite, #19 of July 28, 2016; Pinguinite plea bargain

https://www2.libertysflame.com/cgi-bin/readart.cgi?ArtNum=47033&Disp=19#C19

From the 2016 thread:

#19. To: Pinguinite, goldilucky (#18)

I can understand that such a bitter pill is hard for you to swallow as you seem to regard the legal system with something akin to religious piety.

You would probably be able to respond more intelligently if you read what you are responding to. As I said,

You tried to blame an imaginary system failure on the defense counsel and that effort fell flat as the defense counsel has very little authority in the matter. Indeed, your fallback position is to not identify any failure in the system but to claim the woman was innocent and conclude the system failed. You fail to see that the system worked exactly as it has been designed and is intended to work. That may explain your frustration in attempting to identify the person responsible for the alleged failure. I did not just endorse the system, but I will not say it failed when it worked as designed. It is designed to impel the vast majority of defendants to waive trial and plead guilty.

It is your profound lack of knowledge of the system, and your ostrich-like living in denial, that leads you to make damfool claims that you would have advised Albritton to go to trial, and if convicted, you would expect the judge to go easy on her and just let her go. It even led you to falsely claim that the defense attorney must have failed to do his job, but when confronted, you could not support your baseless contention and now engage in your inane and spurious change of subject further demonstrating only that you do not understand how the system is designed to work, and how it does work.

I'll pound on this fact and this fact is very clear.

She was innocent of the crime she was accused of committing, and for which she received a felony conviction.

You seem to forget that Albritton pleaded guilty.

Your misbegotten attempt to blame the defense counsel only indicated that you did not understand the system. Your ridiculous claim of a system failure reveals that you have no read and learned.

Only a deaf person has not heard prosecutors cal for a level playing field. Now they have more than a level playing field—for defendant and defense counsel it is an uphill slog with advantage to the prosecution.

I did not pull statistics out of my ass. I pulled them out of the opinion of the U.S. Supreme Court in Missouri v. Frye, No. 10-444 (21 Mar 2012), 566 U.S. ___ (2012), slip op at 7.

Ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas. See Dept. of Justice, Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics Online, Table 5.22.2009, http://www.albany.edu/sourcebook/pdf/t5222009.pdf (all Internet materials as visited Mar. 1, 2012, and available in Clerk of Court’s case file); Dept. of Justice, Bureau of Justice Statistics, S. Rosenmerkel, M. Durose, & D. Farole, Felony Sentences in State Courts, 2006-Statistical Tables, p. 1 (NCJ226846, rev. Nov. 2010), http://bjs.ojp.usdoj.gov/content/pub/pdf/fssc06st.pdf; Padilla, supra, at ___ (slip op., at 15) (recognizing pleas account for nearly 95% of all criminal convictions).

Ibid.

Because ours “is for the most part a system of pleas, not a system of trials,” Lafler, post, at 11, it is insufficient simply to point to the guarantee of a fair trial as a backstop that inoculates any errors in the pretrial process. “To a large extent . . . horse trading [between prosecutor and defense counsel] determines who goes to jail and for how long. That is what plea bargaining is. It is not some adjunct to the criminal justice system; it is the criminal justice system.” Scott & Stuntz, Plea Bargaining as Contract, 101 Yale L. J. 1909, 1912 (1992). See also Barkow, Separation of Powers and the Criminal Law, 58 Stan. L. Rev. 989, 1034 (2006) (“[Defendants] who do take their case to trial and lose receive longer sentences than even Congress or the prosecutor might think appropriate, because the longer sentences exist on the books largely for bargaining purposes. This often results in individuals who accept a plea bargain receiving shorter sentences than other individuals who are less morally culpable but take a chance and go to trial” (footnote omitted)). In to­day’s criminal justice system, therefore, the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant.

95% of convictions result from a guilty plea. If that fell to just 90%, you would have to double the courts, judges, juries, lawyers, and others.

Quite obviously, there is a significant government interest in keeping 95% of convictions resulting from guilty pleas. Such statistics can only be maintained by the demonstrated probability of far more severe outcomes resulting from trial convictions.

There are about 2 million people incarcerated. If 5% resulted from trial conviction, that would be 100,000 processed via trial to conviction. Without guilty pleas, there would be a backlog of 1,900,000. Inducement to plead guilty leads to a system that works like a cattle call.

https://www.propublica.org/article/common-roadside-drug-test-routinely-produces-false-positives

The officers allowed her to make a collect call on the coinless cellblock pay phone. She had a strained relationship with her father and with her son’s father as well; instead she dialed Doug Franklin, an old friend who once dated her sister. No one answered. Near dawn the next morning, guards walked Albritton through a tunnel to the Harris County criminal-justice tower’s basement, where they deposited her in a closet-size holding room with another woman, who told Albritton that she had murdered someone. Albritton prayed someone would explain what would happen next, tell her son she was alive and help her sort out the mess. She had barely slept and still hadn’t eaten anything. She heard her name called and stepped forward to the reinforced window. A tall man with thinning hair and wire-rim glasses approached and introduced himself as Dan Richardson, her court-appointed defense attorney.

Of Dan Richardson, her court-appointed attorney, Albritton said: “You could tell he was very rushed, busy.”

Richardson told Albritton that she was going to be charged with possession of a controlled substance, crack cocaine, at an arraignment that morning. Albritton recalls him explaining that this was a felony, and the maximum penalty was two years in state prison. She doesn’t remember him asking her what actually happened, or if she believed she was innocent. Instead, she recalls, he said that the prosecutor had already offered a deal for much less than two years. If she pleaded guilty, she would receive a 45-day sentence in the county jail, and most likely serve only half that.

Albritton told Richardson that the police were mistaken; she was innocent. But Richardson, she says, was unswayed. The police had found crack in her car. The test proved it. She could spend a few weeks in jail or two years in prison. In despair, Albritton agreed to the deal.

Albritton was escorted to a dark wood-paneled courtroom. A guilty plea requires the defendant to make a series of statements that serve as a confession and to waive multiple constitutional rights. The judge, Vanessa Velasquez, walked her through the recitation, Albritton recalls, but never asked why she couldn’t stop crying long enough to speak in sentences. She had managed to say the one word that mattered: “guilty.”

Ms. Albritton joined the cattle call and pleaded guilty. She entertained no evidence faith that she would be found innocent. They dangled 45-days at her and she jumped at it. That was not a failure of the system, as you like to see it. That is the system. Her case was disposed of quick time with her consent. This is not some failure of the system; it is how the system works in 95% of the cases. Wake up and open your eyes and mind to the real world.

Oh wait. Never mind. Ms. Albritton was not alone when it came time for a professedly innocent defendant to take a plea.

From September 14, 2004

Some five hours after this all began, I was brought out of the cell to go see the 'commissioner'. I was charged with five counts. Three were traffic infractions: Driving without headlights on, Driving without a license, and Refusal to provide registration on demand. The fourth was a criminal misdemeanor: Obstruction of Justice. The fifth was a so-called 'common law' offense: Refusal to obey a reasonable/lawful order.

The commissioner noted that I was actually already in their database as having a suspended license for nonpayment of the traffic fine from 1999. She informed me that the state may amend the charge of driving without a license, but with reasonable time for me to prepare. Cool. That made the charge of driving without a license defective, though it also meant that I needed to keep this incident off my LWAN (Life Without a Number) emailing list until after the trial.

I did not expect the criminal charges. The obstruction charge was criminal and carried a max 60 day penalty. The reasonable/lawful order charge, as a 'common law' offense carried no max penalty defined by statute, meaning it was merely up to the judge or the judicial collective to define what was reasonable.

From October 1, 2004

The charges were read and I was told I had a right to an attorney. I waived it. I was asked to enter a plea. I said not guilty. I was told I had a right to a jury trial due to the common law charge which carried no statutory penalty limitation. In Maryland, any charge carrying a penalty greater than 6 months causes the court to recognize the right to a jury trial, and with common law offenses, the judge told me a 20 year penalty was not held to be unreasonable in past cases. I was therefore entitled ot a jury trial. I was confident, perhaps more confident a judge would recognize the legal line I stood behind more that lay people so I waived the jury trial. The judge asked the prosecutor how long he thought my trial would take. He said about an hour, and it was then that I learned that four of the police officers there were waiting all that afternoon just to testify against me. Four.

They took four officers off the street, away from whatever it is they normally do for an entire afternoon just because of me. Apparently, not giving your name at a traffic stop is taken extremely seriously in these parts. I am bad, bad news.

The judge didn't want to hold up the remaining half dozen people who's business probably wouldn't take long, so I was told to take my seat. And my case was held for last.

I planed to argue my case on the facts alone. In my mind I figured I had a 50/50 chance of winning the most serious criminal charges. The judge, coincidentally, was the same judge I saw 5 years prior on regular traffic charges. A friend of mine won a 'no seatbelt' case with this judge when the citing police officer got just a little lazy giving his account of events. I felt I could predict how this judge would respond, and I could possibly win.

Finally it was time. By now it was about 4:30 PM, which is the closing time for the courthouse. The room was about empty except for those involved with my case and a friend who came to support me. I was called back up, but this time the prosecutor told the judge that he hadn't yet spoken with me because he couldn't get to everyone before formal activities began and he offered me a plea bargin. If I plead guilty to the refusal to obey charge -- the common law offense -- and the driving without a license charge, he'd not prosecute the remaining charges and ask the judge for a 'Probation Before Judgment'.

Probation Before Judgment, or PBJ, is where the judge offers the accused the chance to have his/her record free of any criminal charges. In order to qualify for that limited time offer, the accused has to waive the right to appeal and in the case of criminal matters (as opposed to traffic), usually some probation term during which you gotta stay out of trouble. Failure to satisfy the terms of probation means you get the criminal record anyway.

The prosecutor told me he couldn't guarantee the judge would grant PBJ, only that he'd ask for it, and at that point the judge said 'I'll bind myself' to giving me the PBJ if I accepted that deal.

A lot of things ran through my mind in that moment.

* If I really was going to expatriate at some point, having no criminal record was certainly a plus. Countries generally take a dim view of aliens who have criminal records. Or they perhaps should.

* I am not guilty of these charges.

* I had already entertained the idea of getting a MD driver license, as it was possible in Maryland without an SSN. PBJ means no points, whereas and the penalty for no DL in Maryland is 12 points, which is revocation. (Never mind I don't have one to revoke. They'd figure out a way to do that). Of course I'll have to drive regardless just to put food on the table, and driving revoked, according to this state's rules is up to a 1 year in jail. If I took the PBJ I could avoid the points actually get a DL.

* 'Why am I doing this?'

* It's late in the day and in extending this PBJ promise to me on a silver platter, it seems this judge wants to go home. Would he appreciate my keeping him here late when he's made such an offer, or might my proceeding to trial irritate him and serve to my disfavor?

* I thought of my web site where I knew I would be documenting all of this. With that, it's not like I'd not get to give my side of the story. I would, and all of this would come to light. Taking the PBJ however, is nothing to boast about.

* If I proceed, I've got a 50/50 chance of winning, but I'm being handed a sure 'win' of sorts -- in the form of no criminal record -- on a silver platter.

At that moment the expatriation argument seemed to weigh heaviest of all things. This whole 'justice' system is a joke and I had the opportunity to make it all go away.

I looked at the judge and in what might be my most infamous moment, said 'I'll take it'. In that instant, I gave up on my case, gave up on the system, and quite possibly, I gave up on America. In my conscience, I was innocent of any wrongdoing, guilty of no crime, but it came down to this. I could have won, but I chose instead to put my own self interests first, and chose not to fight.

What followed was a series of questions from the judge ensuring everything was above board -- standard for pleas, like if I was free of drug impairment. There were two questions that stuck in my mind: 'Has anyone offered you any promises in exchange for your pleading guilty?'

'Well, um.... yeah. You did. You promised me PBJ if I plead guilty.' I didn't say that, of course. That's not how the game is played. I would later realize that the judge probably broke protocol in promising me the PBJ. But it was time to give the lie. The answer that the system expected. Besides, it's not like I was under oath. Never in that room did I take any oath to tell the truth. 'No'.

Soon after: 'Are you pleading guilty because you actually believe you're guilty?'

I had a flashback to when I was in a Baltimore courtroom supporting a friend charged with practicing dentistry without a license (his was not renewed by the system solely for lack of an SSN). I witnessed some other defendant pleading guilty to some drug charge and the judge (I recall his last name was 'Nance') asked him that same question. Taken back, the kid of some 20 years old shook his head showing he did not actually believe he was guilty. He was apparently only pleading guilty as a matter of expediency, not because his conscience was actually troubling him. Just like me.

With a slam of a gavel Nance bellowed out 'Let the trial begin'. That kid's attorney put his arm around the kid's shoulders and whispered to him for a couple minutes. When he was done, the judge repeated the question and the kid then answered yes, he admitted he really was guilty of the charge. Nance humiliated him right then and there about how he was not going to put up with nonsense. Judge Nance was an arrogant expletive who did not belong on that bench.

I think the people who came up with this plea bargin idea, whoever they were, were concerned about the possibility of innocent people being persuaded to plea guilty. They must have figured a good way to keep that from happening was to ask all defendants these questions. That way, if anyone ever suggested the system was snagging innocent people, they could just point to the transcript and say 'See, he admitted he was guilty so the system works just fine'. If that's the idea, it is a complete farce.

Now it was my turn. Of course I believed I was innocent. The 'correct' answer, however -- the one they want to hear -- is 'yes'. Again, I took no oath in that courtroom. The expectation was to play the game. Am I pleading guilty because I believe I'm guilty? With a shrug, I replied 'With this agreement, I guess I am'. Of course, that was a most ridiculous answer as no one can agree to believe anything, and I no more believed I was guilty of those two charges than the police officer believed I was not guilty of the other three that were dropped. But my answer was apparently good enough for government work and the judge moved on.

I was told that I was also giving up the right to appeal. Perhaps that was how the system views things, but the court of public opinion hears all appeals. Always. And that's something with which I must now be content.

So, it was over and no trial ever took place. My case was never heard by the judicial system. Whether that judge would have ruled in my favor I will likely never know for as long as I live.

Let me explain something.

I think the people who came up with this plea bargin idea, whoever they were, were concerned about the possibility of innocent people being persuaded to plea guilty. They must have figured a good way to keep that from happening was to ask all defendants these questions. That way, if anyone ever suggested the system was snagging innocent people, they could just point to the transcript and say 'See, he admitted he was guilty so the system works just fine'. If that's the idea, it is a complete farce.

The reason the defendant must allocute and answer those questions is so that the defendant cannot later make a plausible claim of being so dumb, stupid, or ignorant that he or she did not understand what he or she was doing. The defendant knows he or she swore to having done the deed, he or she stated they were guilty, and said their admission was voluntary, etc. This is not done because the system has some heartwarming concern for the defendant possibly being innocent, it has a concern for the defendant having grounds for appeal because of some claimed rights infringement. The defendant does not get the deal without acknowledging that they have been informed of and provided their rights. The system figured out a good way for the defendant to document that he or she had been informed and provided their rights.

In return for some peanut butter and jelly (PBJ), the previously defiant defendant said whatever they asked him to say. And the previously defiant defendant thought damn, a PBJ just sounds so much better than the alternative. This pro se defendant did not appear to have blamed his defense lawyer for incompetent assistance of counsel. He does not blame this incompetent legal advice for a proessedly innocent defendant pleading guilty.

As for the people who came up with the system of plea bargaining, it appears to have existed in this country for over two centuries.

People v. Selikoff, 35 N.Y.2d 227, 232-33 (N.Y. 1974)

Throughout history the punishment to be imposed upon wrongdoers has been subject to negotiation (see Comment, The Plea Bargain in Historical Perspective, 23 Buffalo L. Rev. 499, 500-501). Plea negotiation, in some form, has existed in this country since at least 1804 (see p. 512). Even in England, where there are no public prosecutors, no inflexible sentencing standards, and considerably less pressure on the trial courts, a limited form of plea negotiation seems to be developing (compare Cooper, Plea Bargaining: A Comparative Analysis, 5 N.Y.U. Journal of Int. Law Politics 427, 435; Thomas, Plea Bargaining and the Turner Case, 1970 Crim. L. Rev. [Eng.] 559, 561-565 with Davis, Sentences For Sale: A New Look at Plea Bargaining in England America, 1971 Crim. L. Rev. [Eng.] 150, 223, 225). Moreover, convictions upon guilty pleas, pleas probably to lesser crimes, have been high since 1839 both in rural, where there is little trial court congestion, and in urban areas, where there is much congestion (Nineteenth Annual Report of N.Y. Judicial Conference, 1974, A-97-A-99, A-129; Moley, The Vanishing Jury, 2 So. Calif. L. Rev. 96, 107, 109). History and perspective suggest, then, that plea negotiation is not caused solely, or even largely, by overcrowded dockets. This is not to say, however, that plea negotiation is not acutely essential to relieve court calendar congestion, as indeed it is (U.S. President's Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society, 135 [1967]).

In budget-starved urban criminal courts, the negotiated plea literally staves off collapse of the law enforcement system, not just as to the courts but also to local detention facilities.

nolu chan  posted on  2016-07-28   0:16:41 ET  Reply   Trace   Private Reply  

https://www2.libertysflame.com/cgi-bin/readart.cgi?ArtNum=47033&Disp=21#C21

From the 2016 thread:

#21. To: Pinguinite (#20)

Ms. Albritton joined the cattle call and pleaded guilty. She entertained no evidence faith that she would be found innocent. They dangled 45-days at her and she jumped at it. That was not a failure of the system, as you like to see it. That is the system.

You don't understand that she was innocent. A first grader could grasp this concept. But it is somehow beyond your intellect.

I understand perfectly well that at the time Albritton pleaded guilty, her chances of getting acquitted were about as good as yours when you absolutely jumped at a plea bargain. So stop the bullshit. Whether or not to take a plea deal must be judged at the time the offer is made, not under different circumstances that may later arise.

The very late testing on the Albritton evidence did not and could not prove innocence. The absence of evidence is neither proof of innocence nor guilt. Even a court acquittal is not proof of innocence.

You wrote series of self-serving, pie in the sky articles:

(1) Traffic Stop, Arrest, May 17, 2004 (September 14, 2004)

(2) Strategy, Preparation ad Vales (Septeber 19, 2004)

(3) The Trial (October 1, 2004)

(4) The Trial Aftermath (Regrets?) (November 11, 2004)

As you stated in episode 3, "A lot of things ran through my mind in that moment. ... * I am not guilty of these charges."

And after your recitation of things that ran through your mind, came, "I looked at the judge and in what might be my most infamous moment, said 'I'll take it.'"

Where did the system fail that time? You acted as your own lawyer. You made the decision. Did you fail the system as the defendant or as your own lawyer?

You had a simple traffic stop for not having your headlights on. You were the self-professed man living Life Without a Number [LWAN]. Your LWAN crap led to a second charge of driving without a license which turned out to actually be an expired license. In addition, there was the refusal to provide registration on demand, obstruction of justice, and refusal to obey a reasonable/lawful order. To simplify it, you had a routine stop for not using headlights and amplified it with four more charges for being a pain in the ass.

As for Life Without A Number [LWAN], in episode 4, after you got your mind right, you applied to a drivers license and gave the following account:

Clerk: What's your social security number?

Me: I don't have one.

He pokes some keys on his computer and asks some more demographic information.

Clerk: I'm showing that you have one. Did you know that?

Me: Is your computer hooked up to the Social Security Administration?

Clerk: Yes it is, and I'm showing you have an SSN.

Now the application for a driver license in Pennsylvania obligated the applicant to permit PennDOT to inquire of the SSA on behalf of the applicant, but the Maryland application had no such preprinted authorization paragraph. Was this guy's tying into the SSA database to make inquiries of me without my permission a violation of federal law?

Me: I don't have an SSN. It's against my religious beliefs.

Clerk: Well, it's doesn't get printed on the driver license.

His words were spoken as though he understood my sentiments better than I did. He then did something that stunned me. Without any further questions, he picked up his pen, went to the SSN box, crossed out my printed word 'None' and wrote in a nine digit number. This stunned me because what this guy from the Westminster office of Maryland's Motor Vehicle Administration did was modify a document signed true and correct under penalty of perjury. He doctored a sworn document. That has to be a crime, and a serious one. I've not looked it up, but what he did *must* be a crime.

Now, what the hell and I going to do about this?

To make a long story short, you saw the light and took the license. Apparently, Life Without A Number [LWAN] is making believe you do not have a Social Security number.

As I've stated many times but which have your head too stuck in legal morass to understand is that the purpose of the legal system is to punish the guilty without harming the innocent. Apparently you just do not get that, can not understand that very simple, basic principle.

So tell me, what made you, a professedly innocent man, plead guilty? Was it a failure in the system? What system prevents a person from pleading guilty?

Now, what happens when you make the court system prosecute all cases and do away with plea bargaining, given that the court systems are already so overwhelmed with cases? Budgets are tight now so....

First thing that happens is prosecutors start dropping cases that are least important. They only prosecute the worst crimes. Petty stuff involving no victims, much like the woman in the above case, don't go to trial at all. Prosecutors see a single tiny questionable crumb and send her home. Police get the message as well, to only arrest and charge people who are truly a problem. Then the record high incarceration rate of the USA starts to drop.

This works well in your dreamworld, especially in the world of mandatory mimimum sentences and in a Federal system without parole. It begins with a single step... one person refuses to consider any plea bargain... and he is joined by another... and another... and pretty soon it is a movement. Just think, you could have taken the first step.

I had this debate with an idiot about 15 years ago regarding the military justice system. If all service members just refused Article 15 administrative punishment, and demanded Court-Martial, the system would fall apart. Somehow, the movement has never taken hold. It seems few want to go first as there will be draconian sentences. Paging Eddie Slovik.

The record high incarceration will not drop while it remains a money making business.

So you now feel they should have forced you to stand trial. When given the choice in real life, you grabbed a plea agreement at first offer, and you were your own lawyer. You did not even attempt to negotiate for a better deal — because you did not believe all your proclamations of innocence.

You have told me that, as Albritton's attorney, you would have advised her to refuse the 21-day offer. Acting as your own advocate, representing yourself, when faced with far less jeopardy, you snatched up a deal as fast as you could. Albritton, faced with two years minimum, in prison, took a deal for 21 days in jail.

Why is it a system failure when Albritton takes a deal in her self-interest, but it is not when you make a conscious and knowing decision to take a plea in far less serious circumstances of your own making?

You don't understand that she agreed to the plea under duress and under kidnapping conditions.

You fully understand that you are full of shit, but make believe anyway. Your absurd point has been weighed, measured, and found wanting. It has zero legal merit and you, of all people, know that. When you were offered a plea bargain, you jumped at it. You swore you were not coerced, it was your choice. You were not about to be kidnapped.

Number 2) The whole point of having legal council is to have an advocate that understands the legal system and will do there best to act and advise in the best interest of the accused. It does not appear that the 2nd part of this was exercised by the attorney, and from your responses, it seems you don't even agree that this 2nd purpose exists. As I stated, if all this woman needed was a means of communicating with the prosecuting attorney about her options, she only needed to speak the same language.

I am of the opinion that these court appointed attorneys do NOT care about the many defendants they supposedly serve. Why would they? It's not like they are paying customers. These lawyers are probably a few years out of law school, bored to tears with the people they are told they have to represent, and certainly many or most of the ones they represent truly are guilty. Of course that would be the statistical truth. But it's also true that it's as statistical impossibility for them not to have innocent people commonly assigned to them.

That's real life. That is the human element part of these court appointed attorneys that compromise the whole idea of having court appointed attorneys. So yes, based on what I've read of this case, the court appointed attorney failed to give adequate representation to this woman. On the other hand, is it his fault for not caring about his clients if he's simply has no vested reason to care about them? Maybe not.

Albritton was told of her options, in English.

Well, hot diggity damn. In your own case, you spoke English, but every time you opened your mouth you seemed to create another problem for yourself. You chose to represent yourself, so there was no problem of a legal counsel who did not have your best interest at heart. You communicated as you pleased and the system communicated directly to you.

Another source who has an excellent reputation for really putting a cog in the gears suggested that I demand my right to 'assistance of counsel' in court. That's not a lawyer. That's not an attorney. That's not 'counsel'. That's 'assistance of counsel', which is the actual wording of our rights in the 6th Amendment. Assistance is different from 'counsel' in that with 'assistance', you are not represented. You manage your own case, but demand the assistance of one educated in protecting your constitutionally protected rights and court procedure with whom you may confer as needed. With any charge that might generate jail time, if you do not appear with an attorney, judges will ask you if you want to waive your right to an attorney. Standard court rules in jailable offenses is that trial cannot proceed until either you have an attorney or you waive the right to an attorney, or in this case, 'assistance of counsel'. This should, in theory at least, jam the wheels of the courts ability to proceed because no attorney will ever sign an agreement to serve in that capacity.

I was sent a copy of a contract that I could present to attorneies which provides the terms for being my 'assistance of counsel' and it seemed reasonable overall, but for reasons on which I was unclear, no attorney will sign it. Since it would be my obligation to find someone qualified to be my assistance, my strategy would be to provide the judge evidence that I was really, really trying to find 'assistance of counsel', but that 'none of the 150 attorneys I've found so far is willing to serve as assistance of counsel. There are still a couple thousand more I need to ask so I just need some more time'. Without my waiving that right, trial could not proceed, so it would be delayed indefinitely until they just got tired of it and removed it from the docket.

That's what I was told, anyway.

And you believe that bullshit???

You could at least pick up a dictionary and look up assistance of counsel.

Assistance of counsel. Sixth Amendment to Federal Constitution, guaranteeing accused i criminal prosecutions "assistance of counsel" for his defense, means effective assistance, as distinguished from bad faith, sham, mere pretense or want of opportunity for conferences and preparation.

Black's Law Dictionary, Sixth Edition, citations omitted.

First, if they are to appear in a criminal case, they damn sure have to be lawyers or attorneys with a valid bar card. You spent too much time around felons who fleeced people and appeared in administrative cases.

See U.S. v. Grismore, 546 F.2d 844 (10th Cir. 1976)

Grismore contends that he was denied his right to counsel as guaranteed by the Sixth Amendment to the Constitution of the United States because he was not allowed to have the person he requested represent him. Grismore requested the court to allow Jerome Daly to represent him. Mr. Daly is not a member of any Bar Association, having been disbarred by the Minnesota Supreme Court. In re Daly, 291 Minn. 488, 189 N.W.2d 176 (1971). The court denied Grismore's request:

. . . the procedure which will be followed in this case will be that either you represent yourself or you have counsel retained who is a member of the Bar of this Court, or you may proceed with your court appointed counsel.

(R., Vol. I, p. 4.)

Grismore chose to be represented by court appointed counsel who handled all arguments and the examination of all witnesses.

The Constitution does not provide the right of representation by a lay person. "Counsel" as referred to in the Sixth Amendment does not include a lay person, rather "counsel" refers to a person authorized to the practice of law. United States v. Cooper, 493 F.2d 473 (5th Cir. 1974), cert. denied, 419 U.S. 859, 95 S. Ct. 108, 42 L. Ed. 2d 93 (1974); Guajardo v. Luna, 432 F.2d 1324 (5th Cir. 1970); Harrison v. United States, 128 U.S.App.D.C. 245, 387 F.2d 203 (1967), reversed on other grounds, 392 U.S. 219, 88 S. Ct. 2008, 20 L. Ed. 2d 1047 (1968); McKinzie v. Ellis, 287 F.2d 549 (5th Cir. 1961).

[...]

In United States v. Hines, 470 F.2d 225, 232 (3rd Cir. 1972), cert. denied, 410 U.S. 968, 93 S. Ct. 1452, 35 L. Ed. 2d 703 (1973), the court held that, " . . . Effective assistance does not demand that every possible motion be filed, but only those having solid foundation." On this basis, we hold that Grismore's counsel was not compelled to argue that the Federal Reserve System is unconstitutional.

The test for incompetent counsel in this circuit is set forth in Ellis v. State of Oklahoma, 430 F.2d 1352 (10th Cir. 1970), cert. denied, 401 U.S. 1010, 91 S. Ct. 1260, 28 L. Ed. 2d 546 (1971):. . . that relief from a final conviction on the ground of incompetent or ineffective counsel will be granted only when the trial was a farce, or a mockery of justice, or was shocking to the conscience of the reviewing court, or the purported representation was only perfunctory, in bad faith, a sham, a pretense, or without adequate opportunity for conference and preparation. Goforth v. United States, 314 F.2d 868 (10th Cir. 1963).

430 F.2d, at 1356.

The term you were too lazy to look up was standby counsel. And no, you do not have some constitutional right to have one appointed to you if you proceed pro se. If you dismiss your court appointed attorney and demand to proceed pro se, the court may permit you to proceed as your own attorney. If you desire a standby counsel, the court may agree or refuse. If the court agrees to provide one, it may be the appointed counsel you just dismissed, now serving as standby counsel. No counsel is required to make any motion which has no legal basis, such as most of your rubbish. And none of this will jam the wheels of the system for eternity.

U.S. Supreme Court

McKaskle v. Wiggins, 465 U.S. 168 (1984)

Syllabus

At his state robbery trial, respondent was permitted to proceed pro se, but the trial court appointed standby counsel to assist him. Before and during the trial, respondent frequently changed his mind regarding the standby counsel's role, objecting to counsel's participation on some occasions but agreeing to it on other occasions. Following his conviction, respondent unsuccessfully moved for a new trial on the ground that his standby counsel had unfairly interfered with his presentation of his defense. After exhausting direct appellate and state habeas corpus review, respondent filed a habeas petition in Federal District Court, claiming that standby counsel's conduct deprived him of his right to present his own defense, as guaranteed by Faretta v. California, 422 U. S. 806. The District Court denied the petition, but the Court of Appeals reversed, holding that respondent's Sixth Amendment right of self-representation was violated by the unsolicited participation of overzealous standby counsel.

Held: Respondent's Sixth Amendment right to conduct his own defense was not violated, since it appears that he was allowed to make his own appearances as he saw fit, and that his standby counsel's unsolicited involvement was held within reasonable limits. Pp. 465 U. S. 173-187.

(a) The Counsel Clause of the Sixth Amendment implies a right in the defendant to conduct his own defense, with assistance at what is his, not counsel's, trial. Here, the record reveals that respondent was accorded the rights of a pro se defendant to control the organization and conduct of his own defense, to make motions, to argue points of law, to participate in voir dire, to question witnesses, and to address the court and the jury at appropriate points in the trial. Pp. 465 U. S. 173-175.

(b) The objectives of affirming a pro se defendant's dignity and autonomy and of allowing the presentation of what may be his best possible defense can both be achieved without categorically silencing standby counsel. In determining whether a defendant's Faretta rights have been respected, the primary focus must be on whether he had a fair chance to present his case in his own way. Such rights, however, do impose limits on the extent of standby counsel's unsolicited participation.

First, the pro se defendant is entitled to preserve actual control over the case he chooses to present to the jury, and, second, standby counsel's participation without the defendant's consent should not be allowed to destroy the jury's perception that the defendant is representing himself. Pp. 465 U. S. 176-179.

(c) The appearance of a pro se defendant's self-representation will not be undermined by standby counsel's participation outside the jury's presence. In this case, most of the incidents of which respondent complains occurred when the jury was not in the courtroom, and, while some of those incidents were regrettable, counsel's participation fully satisfied the first limitation noted above. Respondent was given ample opportunity to present his own position to the court on every matter discussed, and all conflicts between respondent and counsel were resolved in respondent's favor. Pp. 465 U. S. 179-181.

(d) It is when standby counsel participate in the jury's presence that a defendant may legitimately claim that excessive involvement by counsel will destroy the appearance that the defendant is acting pro se. Nevertheless, a categorical bar on counsel's participation is unnecessary. Here, where respondent's pro se efforts were undermined primarily by his own changes of mind regarding counsel's role, it is very difficult to determine how much of counsel's participation was, in fact, contrary to respondent's desires. If a defendant is given the opportunity and elects to have counsel appear before the court or a jury, his complaints concerning counsel's subsequent unsolicited participation lose much of their force. Once a pro se defendant invites or agrees to any substantial participation by counsel, subsequent appearances by counsel must be presumed to be with the defendant's acquiescence, at least until the defendant expressly and unambiguously renews his request that standby counsel be silenced. Pp. 465 U. S. 181-183.

(e) A defendant's Sixth Amendment rights are not violated when a trial judge appoints standby counsel -- even over the defendant's objection -- to relieve the judge of the need to explain and enforce basic rules of courtroom protocol or to assist the defendant in overcoming routine obstacles that stand in the way of his achievement of his own clearly indicated goals. At respondent's trial, a significant part of standby counsel's participation involved such basic procedures, and none interfered with respondent's control over his defense or undermined his appearance before the jury in the status of a pro se defendant. Pp. 465 U. S. 183-185.

(f) Aside from standby counsel's participation that was either approved by respondent or attendant to routine clerical or procedural matters, counsel's unsolicited comments in front of the jury were not substantial or frequent enough to have seriously undermined respondent's appearance before the jury in the status of representing himself. Pp. 465 U. S. 185-187.

681 F.2d 266, reversed.

Anne Bowen POULIN, The Role of Standby Counsel in Criminal Cases, In the Twilight Zone of the Criminal Justice System, N.Y.U. Law Review, June 2000, pp. 676-736, at 677-78 and 683-85, extensive footnotes omitted.

When a defendant exercises the right to proceed pro se, she imposes a greater burden on the trial court and the justice system to ensure a fair and efficient trial. Pro se representation threatens to create a disorderly and unfair trial because the defendant is both unversed in courtroom etiquette and uneducated in the law. Courts often provide standby counsel to alleviate the burden of presiding over the trial of a pro se criminal defendant and possibly to avert an unfair trial.' On the other hand, some courts regard pro se defendants as clever manipulators of the justice system. Judges may perceive defendants' requests for substitution of counsel as dilatory tactics and then respond by presenting defendants the choice of proceeding with an unsatisfactory attorney or representing themselves with appointed standby counsel.

[...]

In short, the constitutional guidance concerning standby counsel is limited. The pro se defendant cannot demand the assistance of standby counsel. A court may appoint standby counsel but is not required to. Appointed standby counsel may actively assist the pro se defendant but cannot interfere with the defendant's control of the case or the defendant's appearance of control. This bare standard reveals the importance of establishing more defined guidelines for the appointment of standby counsel and the obligations of the designated attorney.

PROBLEMS IN CURRENT PRACTICE

Judicial decisions addressing pro se defendants' complaints reveal troubling patterns in the appointment of standby counsel that heighten the importance of better defining standby counsel's role. The cases depict problems in how defendants choose to represent themselves and how courts assign standby counsel. The decision whether to appoint standby counsel for a pro se defendant generally falls within the trial court's discretion, although appointment is considered the better practice.

Nevertheless, many courts are ambivalent about whether a defendant who waives assistance of counsel should receive the benefit of standby counsel. Most decisions hold that a trial court may properly refuse to appoint standby counsel, and some courts are actually hostile to defendants' requests for assistance. For example, one court argued that "[t]he appointment of standby counsel frequently creates more problems than it solves and often is viewed by defendants as an important factor in making the decision to proceed pro se."' In Brookner v. Superior Court, a California appellate court suggested that the defendant be given the stark choice of self-representation (with no standby counsel) or assistance of counsel: "A self-representing defendant should be flying solo without the comforting knowledge that if turbulence shakes his confidence, a superbly qualified pilot is sitting in the front row of first class."

Before you tell everyone how the law works, you may want to make a minimal effort to learn how the law works.

From the positive point of view, when you represented yourself and you faced criminal charges of which you had every probability of being convicted, although you wrote patriotically of your professed innocence, you sensibly advised yourself to take a plea agreement, and you took your sensible, competent advice to plead guilty.

nolu chan  posted on  2016-07-29   13:53:50 ET  Reply   Trace   Private Reply  

https://www2.libertysflame.com/cgi-bin/readart.cgi?ArtNum=47033&Disp=26#C26

nolu to Pinguinite, #26 of August 1, 2016; Pinguinite plea bargain

#26. To: Pinguinite (#23)

[nolu chan #21] Whether or not to take a plea deal must be judged at the time the offer is made, not under different circumstances that may later arise.

[Pinguinite #23] Her chances were 100% of either aquittal or, more likely, charges dropped. Pleas can be changed later. Or is your idea of a decent justice system one where innocent people are compelled to gamble with the outcome?

Her chances, at the time she pleaded, were about 100% for conviction. Her only hope was that the confirmatory test came back negative, and she was blaming the drugs on the 30-day boyfriend. And once your guilty plea is accepted, it not often that you get a mulligan.

Who keeps "a used needle hidden in the lining on the roof," also identified as a syringe? It was confiscated for suspected trace evidence. It was not tested at the much later date. If the syringe were stuck in the lining, trace evidence could have been wiped off when it was inserted and removed. Had the case gone to a contested trial, the area where the syringe was inserted very well might have had a sample removed and subjected to testing. The guilty plea made that unnecessary.

The absence of guilt means "not guilty" and you know that, so you cut the bullshit. "Proof of innocence" is proof of a negative and not the burden of the defense.

Not guilty does not mean innocent. It means not being proven guilty beyond a reasonable doubt. O.J. was found not criminally guilty by proof beyond a reasonable doubt, but the civil case, O.J. was found liable by a preponderance of the evidence. The absence of evidence did not prove Albritton innocent.

Or is your idea of a decent justice system one where innocent people are compelled to gamble with the outcome?

As your agreement to a plea bargain spoke so eloquently, you did not want to gamble on trying to sell your legal theories to a jury or a judge.

Perhaps your idea of the ideal justice system is one without plea bargains. In such a system, you can plead guilty or go to trial on every case. So, the innocent murder defendant cannot plead to a lesser offense. He must take his chances. Undoubtedly, more innocent people are sentenced to death after a jury verdict than after a plea bargain. The Innocence Project (Barry Scheck, Peter Neufeld, et al.) regularly proves that juries are not infallible, prosecutors do not play by the rules, and law enforcement or expert witnesses tell lies and present junk science. You are greatly mistaken in your belief that an innocent person will gain an acquittal at a jury trial.

Speaking of your faith in jury trials, I note that before you entered into a plea bargain, you had already waived your right to a jury trial and chosen a bench trial.

Albritton choose not to risk trial for good reason. She had no reasonable expectation that the confirmatory test would be negative.

Choosing to go to trial was a crap shoot you chose not to make, for good reason. You had no reasonable expectation that anyone would accept your excuses.

Plea bargains are a judicial sham. If the state has a case, it should be compelled to make it. A right to a trial is just that.

There is a way to enjoy that right. Plead not guilty. This argument is a sham. It's like your Fifth Amendment right to remain silent. You can waive it.

Your problem, like Albritton, was that you did not have a case. Albritton had only a Hail Mary that the confirmatory test would be negative. She was not willing to bet years of her life on a prayer she did not believe in.

Your Cliff's Notes defense:

With that, of the five charges, (no headlights, no DL, refusal to provide registration, refusal to obey, and obstruction of justice), the second should be defective since I was actualy driving on a suspended license (a technicality, but acquitals have been made on less). The third, fourth and fifth should be beatable for lack of evidence of an actual order that was not obeyed and/or his coercive illegal order. The headlight charge appears the hardest to beat.

I took another look at the penalties for driving without a license and driving on a suspended license and discovered the laws had changed since I'd examined them in 1999. Back then, those two charges were punished identically: first offense was a fine, second and subsequent offenses earned up to 60 days in jail. (Incidentally, that is the reason I didn't bother to pay the fines from 1999. Maryland would have considered my subsequent driving illegal whether I paid the fines or not. Since I could not obtain a lawful driver license from either PA or Maryland, my choice was either be driving without a license or driving on a suspended. But with each carrying identical penalties there was no legal advantage in paying the fine so simply I opted to keep my money).

Now the laws had changed to driving without a license being only a fine for the first offense, and up to a year on the second offense while driving on a suspended was up to a year on the first offense. (A year!?) With that it appeared I benefited somewhat by getting charged with obstruction which 'only' carries a 60 day max penalty compared to a year with suspended. Perhaps I handled this arrest incident favorably after all.

(1) Driving down the street with the streetlights on, and your headlights off, and being stopped for not using headlights is hard to beat. It was May, 9:26 p.m., in Maryland. Sunset was at 8:13 p.m. and it was raining severely.

(2) No drivers license. As you said, "Maryland had me down for a suspended license." The lawyers straighten that out before trial. You can rely on, "I tried hard to get PA to take my application for one without the SSN, but failed. Driving for reasons of personal affair is still by moral dictates a right (it has to be)." Actually, operating a motor vehicle on the roads without a license is a crime. Having no registration does not fall under a secret moral rights codicil to the Constitution either.

(3) Refusal to provide registration. Cop wins. The cop will testify. And, as you said, "I don't even need to testify, probably, given the officer's own statement." Not testifying would be a wise decision, with the understanding that any argument would be hopeless, and you could only make things worse.

(4) Refusal to obey. As in refusal to provide any identification.

(5) Obstruction of justice.

Gerald Thomas Titus, Jr. v. State of Maryland

No. 6, September Term 2011, Opinion by Greene, J.

CRIMINAL LAW - OBSTRUCTING AND HINDERING A LAW ENFORCEMENT OFFICER IN THE PERFORMANCE OF A DUTY

The State has the burden of proving beyond a reasonable doubt each of the following elements of the common law offense of obstructing and hindering a law enforcement officer in the performance of his or her duty: (1) a police officer engaged in the performance of a duty; (2) an act, or perhaps an omission, by the accused which obstructs or hinders the officer in the performance of that duty; (3) knowledge by the accused of facts comprising element (1); and (4) intent to obstruct or hinder the officer by the act or omission constituting element (2). A conviction for this offense requires proof beyond a reasonable doubt of actual obstruction or hindrance of a police officer. The four-part test for obstructing and hindering applies to all categories of the offense.

Hiibel v. Sixth Jud. Dist. Ct. of Nev., Humboldt Cty, 542 U.S. 177, 180 (2004)

The petitioner was arrested and convicted for refusing to identify himself during a stop allowed by Terry v. Ohio, 392 U. S. 1 (1968). He challenges his conviction under the Fourth and Fifth Amendments to the United States Constitution, applicable to the States through the Fourteenth Amendment.

I

The sheriff’s department in Humboldt County, Nevada, received an afternoon telephone call reporting an assault. The caller reported seeing a man assault a woman in a red and silver GMC truck on Grass Valley Road. Deputy Sheriff Lee Dove was dispatched to investigate. When the officer arrived at the scene, he found the truck parked on the side of the road. A man was standing by the truck, and a young woman was sitting inside it. The officer observed skid marks in the gravel behind the vehicle, leading him to believe it had come to a sudden stop.

The officer approached the man and explained that he was investigating a report of a fight. The man appeared to be intoxicated. The officer asked him if he had “any identification on [him],” which we understand as a request to produce a driver’s license or some other form of written identification. The man refused and asked why the officer wanted to see identification. The officer responded that he was conducting an investigation and needed to see some identification. The unidentified man became agitated and insisted he had done nothing wrong. The officer explained that he wanted to find out who the man was and what he was doing there. After continued refusals to comply with the officer’s request for identification, the man began to taunt the officer by placing his hands behind his back and telling the officer to arrest him and take him to jail. This routine kept up for several minutes: the officer asked for identification 11 times and was refused each time. After warning the man that he would be arrested if he continued to refuse to comply, the officer placed him under arrest.

We now know that the man arrested on Grass Valley Road is Larry Dudley Hiibel. Hiibel was charged with “willfully resist[ing], delay[ing], or obstruct[ing] a public officer in discharging or attempting to discharge any legal duty of his office” in violation of Nev. Rev. Stat. (NRS) §199.280 (2003). The government reasoned that Hiibel had obstructed the officer in carrying out his duties under §171.123, a Nevada statute that defines the legal rights and duties of a police officer in the context of an investigative stop. Section 171.123 provides in relevant part:

“1. Any peace officer may detain any person whom the officer encounters under circumstances which reasonably indicate that the person has committed, is committing or is about to commit a crime.

. . . . .

“3. The officer may detain the person pursuant to this section only to ascertain his identity and the suspicious circumstances surrounding his presence abroad. Any person so detained shall identify himself, but may not be compelled to answer any other inquiry of any peace officer.”

Hiibel was tried in the Justice Court of Union Township. The court agreed that Hiibel’s refusal to identify himself as required by §171.123 “obstructed and delayed Dove as a public officer in attempting to discharge his duty” in violation of §199.280. App. 5. Hiibel was convicted and fined $250. The Sixth Judicial District Court affirmed, rejecting Hiibel’s argument that the application of §171.123 to his case violated the Fourth and Fifth Amendments. On review the Supreme Court of Nevada rejected the Fourth Amendment challenge in a divided opinion. 118 Nev. 868, 59 P. 3d 1201 (2002). Hiibel petitioned for rehearing, seeking explicit resolution of his Fifth Amendment challenge. The petition was denied without opinion. We granted certiorari. 540 U. S. 965 (2003).

[...]

Hiibel argues that his conviction cannot stand because the officer’s conduct violated his Fourth Amendment rights. We disagree.

Asking questions is an essential part of police investigations. In the ordinary course a police officer is free to ask a person for identification without implicating the Fourth Amendment. “[I]nterrogation relating to one’s identity or a request for identification by the police does not, by itself, constitute a Fourth Amendment seizure.” INS v. Delgado, 466 U. S. 210, 216 (1984). Beginning with Terry v. Ohio, 392 U. S. 1 (1968), the Court has recognized that a law enforcement officer’s reasonable suspicion that a person may be involved in criminal activity permits the officer to stop the person for a brief time and take additional steps to investigate further.

[...]

Petitioner further contends that his conviction violates the Fifth Amendment’s prohibition on compelled self-incrimination. The Fifth Amendment states that “[n]o person … shall be compelled in any criminal case to be a witness against himself.” To qualify for the Fifth Amendment privilege, a communication must be testimonial, incriminating, and compelled. See United States v. Hubbell, 530 U. S. 27, 34–38 (2000).

Respondents urge us to hold that the statements NRS §171.123(3) requires are nontestimonial, and so outside the Clause’s scope. We decline to resolve the case on that basis. “[T]o be testimonial, an accused’s communication must itself, explicitly or implicitly, relate a factual assertion or disclose information.” Doe v. United States, 487 U. S. 201, 210 (1988). See also Hubbell, 530 U. S., at 35. Stating one’s name may qualify as an assertion of fact relating to identity. Production of identity documents might meet the definition as well. As we noted in Hubbell, acts of production may yield testimony establishing “the existence, authenticity, and custody of items [the police seek].” Id., at 41. Even if these required actions are testimonial, however, petitioner’s challenge must fail because in this case disclosure of his name presented no reasonable danger of incrimination.

The Fifth Amendment prohibits only compelled testimony that is incriminating. See Brown v. Walker, 161 U. S. 591, 598 (1896) (noting that where “the answer of the witness will not directly show his infamy, but only tend to disgrace him, he is bound to answer”).

[...]

As best we can tell, petitioner refused to identify himself only because he thought his name was none of the officer’s business. Even today, petitioner does not explain how the disclosure of his name could have been used against him in a criminal case. While we recognize petitioner’s strong belief that he should not have to disclose his identity, the Fifth Amendment does not override the Nevada Legislature’s judgment to the contrary absent a reasonable belief that the disclosure would tend to incriminate him.

[...]

You could have argued in court, as you did in blog, that in Hiibel, "Contrary to popular belief, the question facing the court was not whether Hiibel was within his rights to refuse to give his name. That answer was already well documented and understood. The real question tackled was: 'What is the average IQ of the current supreme court justices' to which a majority gave a very unflattering answer."

I would not consider it a winning strategy. You can only be just so much of a dickhead with a cop, in the rain, backing up traffic, until a routine traffic stop threatens to be a stretch in jail. You were lucky to evade trial. They had you by the short and curlies.

Punishing people more because they choose one is a violation of a constitutional right. Ergo, plea bargains in exchange for a lessor penalty are really a violation of that right. That people freely choose them due to personal considerations doesn't change that.

You are entitled to your opinion and the courts are entitled to theirs. As I always say, their's carries more weight, so it pays to know what their opinion is before jumping in a pile of shit. Your novel idea of the constitution sounds good on a blog, but you hjave demonstrated that you know better than to try it in court when it is your own ass on the line.

As I quoted from the U.S. Supreme Court in Frye at #19,

Because ours “is for the most part a system of pleas, not a system of trials,” Lafler, post, at 11, it is insufficient simply to point to the guarantee of a fair trial as a backstop that inoculates any errors in the pretrial process. “To a large extent . . . horse trading [between prosecutor and defense counsel] determines who goes to jail and for how long. That is what plea bargaining is. It is not some adjunct to the criminal justice system; it is the criminal justice system.” Scott & Stuntz, Plea Bargaining as Contract, 101 Yale L. J. 1909, 1912 (1992). See also Barkow, Separation of Powers and the Criminal Law, 58 Stan. L. Rev. 989, 1034 (2006) (“[Defendants] who do take their case to trial and lose receive longer sentences than even Congress or the prosecutor might think appropriate, because the longer sentences exist on the books largely for bargaining purposes. This often results in individuals who accept a plea bargain receiving shorter sentences than other individuals who are less morally culpable but take a chance and go to trial” (footnote omitted)). In to­day’s criminal justice system, therefore, the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant.

That is not my opinion. It is the U.S. Supreme Court describing the system as it is. It is reality and not one of your fantasies.

Yesterday after seeing your response, I went out to the market. Bought some strawberries....

I take it you already had some steel balls to roll around in your hand, and someone stole your strawberries.

Living outside the USA is a very eye-opening experience, and one that gives a good contrast of culture and law as well, among other things.

You get to shop for fresas and uvas and ananas and such at the mercado. And vino may be cheaper than coca-cola. I am reasonably certain that I have spent several times over whatever time you have spent outside the USA.

You learn that what works in the end is the final arbiter of winning or losing, not any laws per se.

To the contrary, I learned that under the Roman Code system, what is in the laws counts. It does not rely on a system of precedents as does the English Common Law System (the U.S. system). I understand Ecuador uses a Civil Code system, typical of Latin countries, and in the USA unique to Louisiana state law, derived from the Napoleanic Codes. Your comment leads me to believe you have not yet enjoyed the experience of being a party to litigation under the code system.

Though you'd disagree, human laws are actually fickle. We've seen that even in the USA with the decision not to prosecute Hillary over her emails.

Hillary was politics, not law. That was all the Executive Branch and there was no referral to the Judicial Branch. The judiciary is empowered to interpret and construe the law. Your fanciful proclamations of the law are presented to a blog. When it was time to try it in court, you wisely chose not to. It was your voluntary choice.

I do respect you for your tenacity and ability to cite so much legal material, court cases and such.

I respect that you have convinced yourself to the point that you so ardently believe the way things ought to be, that you ignore the way they actually are. If some poor dumb slob reads your junk and believes it, and acts on that belief, he can wind up in prison. I do write extensive corrections of the law not because I value legal fantasy, but because it poses a danger to the public.

As for using your magic eight ball to make all sorts of wild guesses about me, your magic eight ball appears to get everything wrong.

You have zero personal experience with the legal system.

I have a great deal more personal experience than you. You definitely need a new magic eight ball. You know even less about me than you do about the law.

nolu chan  posted on  2016-08-01   0:03:03 ET  Reply   Trace   Private Reply  

Say what you will. I've seen the system from the inside. I suppose you haven't which makes me a better authority than you on the matter.

Who keeps "a used needle hidden in the lining on the roof," also identified as a syringe? It was confiscated for suspected trace evidence.

Or it was planted there by the cops to conveniently justify a further search of the car.

Is that an outlandish suggestion? I would point out that anyone with a habit of shooting up would unlikely still be a half cognizant person many years later, and she still had enough of her wits 6 years later to pursue a legal case against the department. Even though she lost that case, I'd think heroin addicts would be unlikely to file any suit or convince a lawyer to go pro bono.

Add to that the incompetence factor in the local system may not have been limited to the crime lab.

Quite obviously, there is a significant government interest in keeping 95% of convictions resulting from guilty pleas.

One of the most important statistics for the head prosecutor or DA. As an ELECTED person, the incumbent will always strive to show the very highest statistical conviction rate... and the person running against the incumbent will easily win if that statistic isn’t respectable.

This is the reason criminal shitbags get such good deals... some DA’s will plea their soul away to keep the statistics that keep them elected for a career.

August 1st, 2014

“• Matthew Ryan Crull, 23, of 1552 S.E. Crown Street, Port St. Lucie, was arrested on an active warrant for burglary of a conveyance.”

JUST ONE OF HIS PRIORS.

http://thesmokinggun.com/documents/crime/heroin-mixup-609312

At the time of Crull’s arrest, he was free on bond and awaiting sentencing in a 2017 case in which he had pleaded guilty to marijuana possession and tampering with evidence. His bond in that matter was immediately revoked following his December 5 collar by O’Leary.

After investigators determined that Crull was in possession of laundry detergent, they dropped the trafficking charge, an aggravated felony carrying a mandatory minimum of 25 years in prison. Prosecutors also subsequently declined to pursue the lesser drug counts.

Crull’s rap sheet includes convictions for marijuana possession; drunk driving; disorderly conduct; burglary; violating probation; and careless driving. Before last month, he had never been accused of trafficking narcotics.

https://www.tcpalm.com/story/news/crime/st-lucie-county/2017/04/17/st-lucie-county-felony-arrests-april-17-2017/100580812/

Re April 17, 2017 arrest of Matthew Crull:

Matthew Crull, 26, 1500 block of Southeast Crown Street, Port St. Lucie; resisting an officer with violence; battery on an officer; destroying, tampering with or fabricating physical evidence.

Or it was planted there by the cops to conveniently justify a further search of the car.

Is that an outlandish suggestion?

It's idiotic. It was a consent search. Having been given the owner's consent to search the car, the cop entered the vehicle and planted a used syringe in it to justify a further search of the car? Duh.

You are quite the cut n paste expert!

If it ain't broke, don't fix it. The 2016 thread got you to stick a sock in it for nearly three years.

Now, in 2019. you posted to misterwhite and did not ping me, you did not link or quote anything, did not identify the thread, did not reveal it was from 2016, and made believe you were acting on recall about something you attributed to me.

Mostly, you avoided linking or identifying the 2016 thread where you were shown to have accepted a plea deal. You acted as your own counsel, so you can't blame your counsel for the advice he gave you, and which you accepted.

And what you "recalled" and attributed to me was fictional bullshit.

Say what you will. I've seen the system from the inside. I suppose you haven't which makes me a better authority than you on the matter.

You profess to remain too clueless to realize that the overwhelming disposal of cases by plea bargain acceptance is how the system is designed to function, and how it functioned in your own case where you acted as your own counsel and advised yourself to cop a plea.

[Pinguinite #3] States should be obligated to prove all such cases and not simply accept plea deals.

Preach it, brother!!

Preach it, brother!!

Great thread.

It once again proves that the use of facts when presented to a reality-challenged libertarian through rational intelligence can never convince a staunch libertarian denialist to finally see the truth when confronting his raw emotional intelligence.

A libertarian’s belief system will continue to ignore scientific hard evidence in favor of making wide-sweeping and gross generalizations to support his beliefs that will forever be the bedrock principle on which his life is based.

"You can always tell a libertarian, but your can’t tell him much."

A libertarian’s belief system will continue to ignore scientific hard evidence in favor of making wide-sweeping and gross generalizations to support his beliefs that will forever be the bedrock principle on which his life is based.

It’s done purposely to indoctrinate and scare their sheep followers... to promote the pro drug AGENDA. Same strategy as LIBERAL MSM. Scare them... they will follow you and believe ANYTHING you say.

And what you "recalled" and attributed to me was fictional bullshit.

Law is your religion. Case law is your bible. You cite legal cases in a way that makes a bible believing Christian jealous. That is your world.

The topic on this thread: A guy spent 42 days in jail because cops couldn't tell laundry detergent from drugs. I have a problem with that, as I do a woman ending up with a felony conviction over aspirin and caffeine.

Both of those things happened because the system FAILED. You insist it's not a system failure because the system worked as designed, but guess what, bubblehead: If it happened because the system did NOT work as designed then that would NOT be a "system failure", but a failure of people work the system as DESIGNED, and we would instead look to understand why the people in the system did not do as they were supposed to. And I doubt you would call that a "system failure" then for those reasons.

No, for you, it's impossible for the system to ever fail.

Though there were apparently many problems on the part of the crime lab in Albritton's case, this is a problem NOT limited to a single police department. Yes, an overwhelming number of cases are settled in plea bargains and THAT is what's broke because people take pleas IN EXCHANGE for enormously lessor sentences, which contaminates the plea. It converts what is billed as an honest admission of guilt into something that has all the exact same hallmarks of a confession made under threat of torture.

Except in our legal system you insist is not a problem, anyone admitting to a crime under the threat of a 2 year jail time instead of 45 days is NOT being unduly coerced out of some bizarre theory that anyone truly innocent would be 100% confident of winning a not guilty verdict and would NEVER EVER, EVER plea guilty.

That is complete, unadulterated BULLSHIT but you stand in that bullshit wearing a straight face insisting there is no problem.

In these 2 cases we're discussing, they did go as they were "supposed" to go and as a result, INNOCENT people got slammed. The fact that it happened "as designed" is PRECISELY what makes it a "system failure".

Yes, that is why I make the observation that law is, for you, a religion. Just as religious zealots of whatever sort will NEVER find fault in their worshipped deity but instead blame all else for a lack of a perfect world, you will NEVER see any problem with our legal system. No, anything that goes wrong which causes innocent people to be damaged for crimes they did not commit is the fault of people not working the system correctly (in these cases the innocent people charged) but *never* the system itself.

The situation is similar to Plato's' allegory, "The Cave." I am confident that you read and comprehended this significant work. I doubt that others have even taken a philosophy class of study.

Case law is your bible.

When you are incarcerated, it better be your fucking bible, too. Dumb shit. There is only a few things that’s kinda comparable... but falls way short of case law. That’s a hack saw blade to escape or a bed sheet to hang yourself.

Both of those things happened because the system FAILED

I have a problem with that

The criminal justice system isn’t perfect AND our criminal justice system is the best anywhere on this rock. Nowhere else do more scumbag criminal fuck stains not get charged for their crimes due to lack of PC or get acquitted due to a strict due process standard.

Nobody really cares what you have a problem with.

The system didn't fail because it "worked as designed". Here I thought it was designed to convict the guilty and exonerate the innocent.

Silly me.

Silly me.

In no way are you criticized other than some of our posters are just not worth an original post. They are blind to real world.

but there's no hope of swaying others.

Certainly not with the emotion-filled, factless, biased, and ignorant arguments I've seen.

A guy spent 42 days in jail because cops couldn't tell laundry detergent from drugs.

And he's not at least partially responsible for having 92 grams of laundry detergent in an unmarked baggie -- along with alcohol and marijuana -- in his car, while asleep, in a KFC parking lot?

You don't think 42 days is appropriate for vagrancy, marijuana possession, and open alcohol in a car?

You don't think 42 days is appropriate for vagrancy, marijuana possession, and open alcohol in a car?

Let’s not forget this shitbag (known as a saint by the Paultards) has a criminal history longer than an encyclopedia. Cops in their jurisdictions, get to know the shitbirds. When you find a frequent flyer... you dig deep to find their criminal activity.

You don't think 42 days is appropriate for vagrancy, marijuana possession, and open alcohol in a car?

Who made the cops the judge and jury of any crimes? You?

Who made the cops the judge and jury of any crimes?

No one. He was awaiting trial.

Who made the cops the judge

The cops didn’t give him “41” days, dumb shit. It’s kind of like you accusing a firman for the 25 parking ticket for parking in a fire zone.

42 days for apparent, false crimes awaiting a preliminary trial?

I guess the courts were really backlogged. Are you saying they should have moved this scumbag to the front of the line?

We have the best criminal justice system of any country... it’s impossible to make it without errors.

Go fuck yourself with that idea.

Are you suggesting that, "there is no right to a speedy trial?"

He had a speedy preliminary hearing where his bond was set at $500K.

there is no right to a speedy trial?"

The standard for “speedy trial” is monumentally longer than 41 days. You fucking ignorant retarded simpleton.

I require a link to ensure accuracy about your post.

The link is: SCROLL UP TO THE ARTICLE AND READ IT

The standard for “speedy trial” is monumentally longer than 41 days. You fucking ignorant retarded simpleton.

There is no government standard of time for speedy trial you ignorant slut.

There is no government standard of time for speedy trial

Maybe in that spic filled filthy jungle where you live... but here in the MAGA country,

“In addition to the constitutional guarantee, various state and federal statutes confer a more specific right to a speedy trial.[3] In New York, the prosecution must be "ready for trial" within six months on all felonies except murder, or the charges are dismissed by action of law without regard to the merits of the case. This is also known as a "ready rule".[4] In California courts, defendants have a right to a trial within 100 days to a year.

Six months in NY an 100 days in Kookifornia... as just TWO EXAMPLES. Shut your fucking filthy shit spewing fecal spreader.

TWO EXAMPLES

You are a pathetic human being ... not so much as an American but one accepting months as a 'speedy trial.'

but one accepting months as a 'speedy trial.'

Do you accept the fact that the average time between a guilty verdict and execution is 15 years?

Yeah. Hurry up and have a trial then drag your feet for decades to carry out the sentence.