Jacki’s whereIstand Blog

to defendants from outside the U.S. 

From CNN:

The court ruled against two foreign suspects who argued [the Vienna Convention required police to inform them that they had a right to contact their governments when they were arrested.

By a 6-3 vote, justices did not decide whether the [Vienna Convention] requires suspects to be informed of such a right.

Writing for the majority, Chief Justice John Roberts said the two men — one from Honduras, the other from Mexico — are not entitled to suppression of statements to police or another chance to raise objections based on the treaty after failing to do so at trial.

Roberts said such remedies are too harsh for the treaty’s requirement — if it exists — that only deals with notification and does not require consulates to provide assistance to suspects.

The United States is one of 168 countries that signed the Vienna Convention on Consular Relations, which requires "competent authorities" to tell a consulate when one of its citizens has been arrested.

A few years ago we moved to vacate our client’s death sentence based on the grounds the Court just struck down.  Our client was from Mexico and the U.S. failed to notify the Mexican government or my client of his right to contact the Mexican consulate.  A few weeks before the new sentencing phase of the trial was to start, the prosecutor in Oklahoma offered a plea agreement converting our client’s death sentence to life in prison w/o parole.  We were thrilled. 

Based on the Court’s ruling today, defendants will be forced to raise Vienna Convention violations at trial.  If criminal defense lawyers fail to raise these issues at trial, the rights will be waived forever.

This is just the beginning of the end for Vienna protections.

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Nick’s at it again.  Here, he claims Cindy wore the shirt for attention. 

^{Regarding Cindy, I am asked to "explain…how her conduct was disruptive". Well, if it wasn’t intended to be disruptive, why did she do it? She clearly wanted attention, right? She did expect that people would read her statement, didn’t she?}

Well, attention is a zero-sum game. If you are getting it from someone you are reducing that person’s available supply of it. If it was already engaged, you must be taking it away from something else.

I might concede the point except, um, how the hell does anyone know why she wore the shirt?  In Sheehan’s statement, which I posted a few days ago, she claims she wore the shirt all day and had the shirt on when Rep. Lynn Woolsey gave her ticket to the State of the Union Address to Sheehan. Sure, maybe she wore the shirt for the express purpose of protesting the invasion of Iraq at the State of the Union Address, but I am not willing to accept that hunch as fact.  One of my pet peeves is when people assume facts to fit their arguments. 

I’ll play along though.  Let’s assume Sheehan wore the shirt to "get attention."  The only attention she received was from the police officer that arrested her.  Does anyone really believe that the biased news media would have fanned out to Cindy Sheehan during the President’s speech?  Come on.  Protesters do not receive mainstream media attention.  Does anyone really know how many people were at the RNC protests?  I was there.  It was a major news story.  The major networks did not seem to agree.

Besides, if nothing else the First Amendment allows you to take away attention from the President of the United States.  That is sort of the point of the First Amendment - to protect political dissent.  Is it wrong for the Democrats to stand up and clap when the President mentions legislation that failed to pass?  Is that "disruptive?"  Where does it end?  If the President needs all eyes on him without any distraction whatsoever, hold the speech in the Oval Office, better yet run for office in China. 

Now this is my favorite argument:

This isn’t a freedom of speech issue. It’s a freedom of assembly issue.

No, it isn’t.  According to the First Amendment to the U.S. Constitution,

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Nowhere in the First Amendment does it read, " … unless you are a protester at the State of the Union Address." 

‘Peaceably to assemble‘ means the right to associate with, or organize any groups, gatherings, clubs, or organizations that one wishes.  This is not what Sheehan did.  She wore a tee-shirt in protest of the invasion of Iraq.  No one claims she was disruptive.  In fact, Sheehan publicly stated that she knew that she could not be disruptive because if she had it would reflect poorly on Woolsey.  Yes, she wore the tee-shirt in a public place.  This is not a crime.  It is protected free speech, no matter how you want to look at it. 

According to Nick’s argument, it is legal for Sheehan to wear the shirt in one place, i.e. outside the Capitol, but criminal for her to wear it in another, inside the gallery.  Do you believe that she does not have the right to be told or given any notice whatsoever as to when wearing her shirt becomes a crime? 

By the way, if police had confiscated her shirt, we may have had a real distraction on our hands.

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Read Nick’s post on free speech, or should I say read his post on prohibiting free speech.  He equates Cindy Sheehan wearing a tee-shirt protesting the invasion of Iraq with "interrupt[ing] a movie."  Let’s assume for a moment that his argument has merit.  Try to put aside the fact that he equated political symbolic speech in protest of an invasion where innocent men, women and children are dying daily with interrupting a movie.  If Sony produced a film that depicted millions of penguins getting slaughtered so that Christian fundamentalists could wear black and white cloaks, I want the opportunity to protest that film, inside that film without "losing my citizenship."  Read his post, you will understand.   

That’s the point of the First Amendment - it protects speech that annoys people.  In the interest of full disclosure, I believe that racial slurs made in public should not be protected under the First Amendment because they violate the civil rights of those targeted by the speech.  Some of you will call me out on this.  I understand.

Here’s my bigger contention with Nick’s argument.  He insists that Cindy Sheehan "disrupted" the State of the Union Address.  She wore a tee-shirt in protest of the invasion of Iraq.  She did not yell.  She did not stand up.  She did not bring in a bullhorn.  She did not carry a sign.  She wore a tee-shirt.  How is this disruptive?  You may not like her tactics but don’t fabricate the issue.  Explain to me how her conduct was disruptive. 

I suppose Nick would be comfortable with Sheehan wearing that tee-shirt along the Champs-Elysees.  Is it fair to expect Sheehan to know where she is allowed to wear her tee-shirt and where she cannot.  Should she not be given any notice of when wearing her tee-shirt constitutes unlawful conduct?  Sound familiar?

Notwithstanding Nick’s judgment, the U.S. Supreme Court seems to agree with me.  Anyone remember the "Fuck the Draft" jacket?  Sorry to "go legal" on you Nick, it’s in my nature.

All in all, I say "thank you" to Cindy Sheehan.  This nation has lost its appetite for dissension.  In a time where our civil liberties are violated daily - subway searches, warrantless wiretaps, airport stop and frisks, infringements on Miranda warnings, and the list goes on, we should have seen hundreds more tee-shirts like the shirt Sheehan wore. 

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Reading Clark’s post describing the New York Department of Corrections, NYPD and New York Unified Court System’s treatment of RNC protesters last summer, prompted me to shed a bit of light on detention here in NYC - Manhattan to be precise. 

You see, the awful "fenced pen with no seats" Clark describes, the bologna sandwiches and the "sanitary concerns," well those conditions exist on a daily basis for thousands upon thousands of inmates in Manhattan.  I can tell you because I witness it daily.  I do not mean to minimize the experiences suffered by the protesters in NYC but I would like to raise awareness of what people endure when they are arrested and detained in Manhattan.  Keep in mind the majority of criminal cases in Manhattan are misdemeanors and many are drug-related or non-violent.

What’s worse about the RNC protest cases is that many protesters - if not the vast majority- were detained over twenty-four hours before arraignment.  Under New York law, a defendant must see a judge within twenty-four hours of arrest.  Of course, with respect to the RNC protest cases, the city’s argument was that extraordinary circumstances caused by the volume of defendants from the protest warranted a departure from the 24 hour rule.  I suspect the number of defendants is not what kept people detained for days, but the motivation by some to keep protesters off the streets during the RNC.

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