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A cautionary tale for gun owners and anyone who has been adjudicated as a juvenile delinquent

Attorney David Betras
BKM Managing Partner David Betras

One of the fascinating things about trying criminal cases—and one of the things that will keep me at it until I fall over at my desk—is that you never know where the law and the facts will take you. I was reminded of that reality during a just-concluded high-profile murder trial in which the provisions of Ohio’s “Constitutional Carry” firearms statute and my client’s failure to have his juvenile record sealed and expunged converged to forge the plea deal I negotiated on his behalf.

That said, this week’s column should serve as a cautionary tale for gun owners, any who has been adjudicated as a juvenile delinquent, and parents.

Chapter One: Where you can’t carry a firearm in Ohio.

While Ohio’s recently enacted Constitutional Carry law has relaxed or removed many of the statutes related to carrying a concealed weapon, including the need to apply for a permit and undergo training, it has not turned the entire state into Dodge City. There are still places the Wyatt Earps and Doc Holidays among us may not enter if they are packing. They include:  

  • Police stations, sheriff’s offices, highway patrol posts
  • Correctional institutions or other detention facilities
  • Airport terminals or airplanes
  • Courthouses
  • Universities, unless expressly permitted
  • Places of worship, unless the place of worship permits otherwise
  • School safety zones: schools, school buildings, school premises, school activities, and school buses
  • Private businesses, including bars, restaurants, and other places that serve alcohol may prohibit the carrying of concealed weapons but must post a notice of the prohibition in a conspicuous place.

That last proved problematic for my client because he did carry a concealed weapon into a bar/restaurant that expressly prohibits doing so which is a third degree felony punishable by up to three years in prison and a fine of up to $10,000.

He shouldn’t have done that—and neither should you. Take my advice, nothing good comes of carrying a concealed weapon into a place where people are consuming alcohol—especially if one of the people is you. BKM’s rule pertaining to driving while under the influence–Don’t Do It—also applies to doing shooters and carrying a shooting iron.

Chapter Two: Carrying a weapon under disability.

And, no I’m not talking about workers’ comp or SSDI. I’m referring to the Ohio law that makes it a crime to knowingly acquire, carry, or use any firearm or dangerous weapon if you:

  • Are a fugitive from justice;
  • Are under indictment for or have been convicted of any felony offense of violence;
  • Are under indictment for or has been convicted of any felony offense involving the illegal possession, use, sale, administration, distribution, or trafficking in any drug of abuse;
  • Are drug dependent, in danger of drug dependence, or a chronic alcoholic;
  • Are under adjudication of mental incompetence, have been adjudicated as a mental defective, or have been committed to a mental institution;
  • Have been adjudicated a delinquent child for the commission of an offense that, if committed by an adult, would have been a felony offense of violence;
  • Have been adjudicated a delinquent child for the commission of an offense that, if committed by an adult, would have been a felony offense involving the illegal possession, use, sale, administration, distribution, or trafficking in any drug of abuse.

If you guessed that my client ran afoul of the juvenile adjudication thing, give yourself a gold star. Like carrying a concealed weapon into a prohibited place, possessing a firearm under disability is a third degree felony punishable by up to five years in prison and a $10,000 fine.

Again, take my advice, this is something you really should not do.

Chapter 3: Failing to seal and expunge juvenile records can haunt you well into adulthood

Because the state of Ohio believes juvenile offenses should not impact a person’s life until they day they die, the General Assembly created a process for sealing and expunging juvenile court records. If you or someone you know has been adjudicated as a juvenile delinquent, I implore you to take advantage of the opportunity to obtain the fresh start the state is offering.

The client in the case I’m discussing today did not, and, as I noted above, that left him open to the charge of possessing a firearm under disability. While not as serious, failure to seal and expunge a juvenile record can make it difficult to get a job, be admitted to college, or obtain a credit.

Here is a brief overview of what is a complicated process:

First, let’s define our terms.

Sealing a record means it still exists but is hidden from public view. A sealed record can still be seen in limited circumstances by the Courts, law enforcement, or the defendant.

Expunging a record means all physical and electronic versions of the record are destroyed. The record then no longer exists, and for all intents and purposes, it never existed. Once the record is expunged you can truthfully say that you do not have a juvenile record.

Before records can be expunged, they must be sealed. All offenses, except for aggravated murder, murder, and rape may be sealed and expunged.

Contrary to what many people believe, with few exceptions, juvenile records are not automatically sealed and expunged by the courts. You must apply. I am sure that most readers will not be surprised to learn that as this guide clearly shows, the process is complicated and laborious. The law does not require applicants to be represented by an attorney, but if you take a look at the publication referenced above, you may decide to contact a lawyer.

Chapter 4: Conclusions

What have we learned from the cautionary tale?  Don’t carry a firearm into someplace you shouldn’t, don’t carry a weapon under disability, and do take advantage of the law that allows you to seal and expunge your juvenile record.

The End.

Do Trump gag orders pass constitutional muster? Probably not.

“Writing is easy. You only need to stare at a blank piece of paper until drops of blood form on your forehead.” Gene Fowler, American journalist

Attorney David Betras
BKM Managing Partner David Betras

Anyone whose job is or involves creative writing will agree with Gene Fowler. I’ve cranked out more than 200 of these columns over the years and I can tell you that staring at my computer monitor when the only thing on the screen is a blinking cursor—the days of paper and pen having disappeared long ago—is a frightening and frustrating experience.

Deciding what to write about is among the most difficult challenges I face. Some weeks my brain is devoid of possible topics, others my cranium is stuffed with so much flotsam and jetsam you’d need a Coast Guard icebreaker to cut through it. This week proved to be the latter because as I sat down and hovered my hands over the keyboard a number of my favorite subjects were bouncing around in my nugget: I decided to write about two of them: Donald Trump and the First Amendment.

Let’s jump in.

As most of you know, Donald Trump is embroiled in a dizzying array of  legal proceedings: a civil lawsuit in New York involving allegations the former president deceived banks, insurers and others by exaggerating the value of his assets, and four pending criminal trials related to charges that he engaged in a conspiracy to prevent the certification of Joe Biden’s victory in the 2020 presidential election, mishandled classified documents, paid hush money to coverup extramarital affairs, and violated Georgia’s anti-racketeering laws by plotting to overturn his loss in the state’s 2020 presidential contest.

All the cases are enthralling because this is the first time in history a former occupant of the Oval Office has been indicted on criminal charges, but the civil fraud and federal election interference proceeding are particularly fascinating because the judges presiding over them have issued gag orders against Mr. Trump. As my regular readers know, while I’m a huge fan of the First Amendment, I do recognize that the courts may limit free speech. For example, there is this well-known passage written by U.S. Supreme Court Justice Oliver Wendell Holmes in 1919:

The most stringent protection of free speech would not protect a man falsely shouting fire in a theatre and causing a panic… The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger…

Judges are permitted to issue gag orders if they believe there is a credible fear that jurors may be swayed by statements in the media or online, if people involved in the case could be threatened or harassed, or if confidential information could become public.

Judge Arthur Engoron, the New York State judge overseeing the civil lawsuit, told all participants in the case not to smear court personnel and warned that violations would trigger serious sanctions. Shortly after the trial began on October 2 Mr. Trump posted a photo of Allison Greenfield, the judge’s principal law clerk on Truth Social, his social media platform and said it was “disgraceful” that she was working in the courtroom. The judge reacted by slapping a gag order on the former president who has violated it twice and been fined a total of $15,000.

Given the fact the Mr. Trump’s ardent supporters have a proven record of attacking people who offend him, the judge’s reaction was at the very least prudent and met the standard of preventing or in the case of the former president attempting to prevent him from making public statements that could cause harm Ms. Greenfield.

U.S. District Judge Tanya Chutkan who is presiding over the election interference case imposed a partial gag order on Trump after special counsel Jack Smith and his prosecutors argued that the ex-president’s statements about the case risked prejudicing the trial. Mr. Trump has often railed against the judge, Smith and his staff, the jury pool in Washington, D.C where the case is being tried, and potential witnesses.

The order, which is now on hold pending an appeal by Mr. Tump’s attorneys, bars him and other parties in the case from making public statements about Smith, the defense counsel, members of the court or any of their staffers. They are also prohibited from targeting “any reasonably foreseeable witness or the substance of their testimony.”

Interestingly, the American Civil Liberties Union (ACLU) has filed a friend of the court brief in which they argue that the order is too vague, broad, and is not sufficiently justified. In a press release ACLU executive director Anthony Romero noted that “No modern-day president did more damage to civil liberties and civil rights than President Trump. “But if we allow his free speech rights to be abridged, we know that other unpopular voices — even ones we agree with — will also be silenced.” 

In their brief the ACLU said Trump has made many “patently false” statements that have “caused great harm to countless individuals,” but he “retains a First Amendment right to speak, and the rest of us retain a right to hear what he has to say.” They also assert that any restraint on the former president’s speech must be “precisely defined and narrowly tailored,” and concluded that Judge Chutkan’s order “fails that test.”

Is the ACLU right? I tend to object to prior restraint, and while Mr. Trump has in the past made troubling statements, in my opinion he has yet to cross the line in this case. Of course, there’s still plenty of time, the trial is not scheduled to begin until March 2024.

Alford Pleas: understanding why innocent people sometimes plead guilty…

Attorney David Betras
BKM Managing Partner David Betras

In the tradition of popular TV series like Ozark, Succession, Yosemite, and Breaking Bad, last week’s column was a cliffhanger. As you may remember, as I signed off I was ensconced in bucolic Findlay, Ohio busily preparing for a jury trial in Hancock County Common Pleas Court that was scheduled to begin on Monday, October 2. I had done my due diligence, readied my defense, pored over the prosecution’s exhibits, and was geared up for voir dire which is fancy way of saying selecting a jury. Just wait, there’s more legalese to come in the column.

Anyway, I was fired up, ready to go and—now for the resolution of the cliffhanger you’ve all been sitting on the edge of your seats awaiting: the verdict. Was my client found guilty or not guilty by a jury of his peers? Well, you can sit back and relax there was no courtroom drama because my client was offered accepted a plea deal before the trial began.

To be more specific, he entered an Alford Plea which permits defendants to admit to criminal charges while maintaining their innocence. A defendant who enters an Alford Plea is, in essence, acknowledging that the prosecution has enough evidence to convict them even if they did not commit the crime. To understand why an innocent person would agree to plead guilty, it is helpful to examine the case of Henry Alford, the man for whom the Alford Plea is named.

In 1963 Mr. Alford was indicted for first degree murder in North Carolina where the death penalty was the default sentence for the offense at the time. Alford would probably have received a life sentence had he pleaded guilty, but he maintained his innocence. He subsequently agreed to plead to second degree murder for one reason and one reason only: to avoid the gas chamber. He was sentenced to 30 years in prison.

Alford appealed, arguing that he was forced into a guilty plea because he was afraid he would be sentenced to death. The North Carolina Supreme Court and a Federal District Court both found that Alford had entered the guilty plea voluntarily and denied his appeal. The Fourth Circuit Court disagreed and held that Alford’s plea was not voluntary because it was made under fear of the death penalty.

In a 6-3 decision handed down in 1970 the U.S. Supreme Court reversed the Circuit Court. Writing for the majority Justice Byron “Whizzer” White said courts may accept whatever plea a defendant chooses to enter, as long as the defendant is competently represented by counsel; the plea is intelligently chosen; and “the record before the judge contains strong evidence of actual guilt.” Faced with “grim alternatives,” the defendant’s best choice of action may be to plead guilty to the crime and the courts must accept the defendant’s choice made in his own interests.

Since then, the Alford Plea have become an important component of a criminal justice system in which more than 90% of cases are resolved with plea bargains. As I did last week, I have advised defendants to enter Alford Pleas. Why? Because although I revere the jury system, clients I knew to be innocent were convicted and received stiffer sentences than would have been imposed had they agreed to a plea deal.

Does the fact that the Hancock County case ended in a plea deal mean all the work I did to prepare for it was wasted? The answer is no. In the course of dissecting the prosecution’s case I discovered some evidence that I believed was inadmissible and should not be heard by the jury. Based on that discovery, I filed, and the judge granted what is known as a “motion in limine” which excluded the evidence in question from the case. The exclusion of that evidence significantly weakened the state’s case, substantially strengthened my bargaining position, and enabled me to secure the best possible outcome for my client.

Students’ right to privacy is limited in public schools, random searches of lockers/contents permissible under the 14th Amendment…

Attorney David Betras
BKM Managing Partner David Betras

To the relief of parents and the chagrin of students, summer is over and a new school year has begun. That makes this an opportune time to convene another session of Professor Dave’s Shade Tree Legal Academy. During today’s lecture I will discuss whether the law allows public school teachers and administrators to search students and their property. It’s a fascinating topic that involves the Fourth Amendment, a landmark Supreme Court decision, and state statutes.

Class is about to begin so please no gum chewing, turn off your cell phones and handheld devices, and, as usual, there will not be quiz or test on this material because Professor Dave doesn’t have time to grade them.

Let’s begin our exploration of the topic with a look at the Fourth Amendment which states in part: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…” For years various state and federal courts reached various conclusions regarding the applicability of the Amendment to public schools. The issue finally was resolved in 1985 when the U.S. Supreme Court handed down its landmark ruling in New Jersey v. T. L. O.

The case revolved around TLO, a 14-year-old New Jersey high school student who was caught smoking in a school bathroom by a teacher. The teacher escorted TLO to the school office where she was questioned by assistant vice principal Theodore Choplick. During the questioning, the student denied that she had been smoking and said she “did not smoke at  all.” At that point, Mr. Choplick demanded to see her purse, opened it and found a pack of cigarettes and rolling papers. He continued to search the purse and found a small amount of marijuana and a list of students to whom she had sold pot. The police were called and TLO was eventually found to be delinquent by a juvenile court judge and placed on probation for one year.

During the juvenile court proceeding TLO filed a motion to suppress the evidence found in her purse because the search had violated the Fourth Amendment. The juvenile court judge denied the motion because Choplick “had reasonable cause to believe that smoking, a violation of school policy, had occurred” TLO’s appeal of the juvenile judge’s ruling was rejected by the New Jersey Superior Court. The New Jersey Supreme Court then ruled that Choplick’s search of TLO’s purse had violated the prohibition against unreasonable search and seizure and reversed the decision. The state then appealed the case to the U.S. Supreme Court.

In a 6-3 decision authored by Justice Byron “Whizzer” White, the Court ruled that students were protected by the Fourth Amendment. Unfortunately for TLO, the justices also held that in the interest of maintaining order and discipline, officials could search students in a public school environment without a warrant or meeting the probable cause standard that applies to adults as long as they had a “reasonable suspicion” to believe a rule or law had been violated. Because she had been caught smoking in the bathroom and taken directly to the office, the justices found it was reasonable to assume she had cigarettes in her purse which, in turn, gave the vice-principal reasonable cause to search the purse.

Voila, a new precedent—and the basis for laws and regulations that govern searches in public schools was born.

What does that mean for Ohio students? It means that under ORC 3313.20  a principal may search any pupil’s locker and its contents if they reasonably suspect that “…the locker or its contents contains evidence of a pupil’s violation of a criminal statute or of a school rule;”

In addition, the statute permits the random search of all lockers and contents at any time provided the school has posted signs in conspicuous places that notify students that all lockers are the property of the board of education. In this situation neither the Fourth Amendment nor the “reasonable suspicion” standard apply. Bottom line: if that notice is posted in your school don’t put anything in your locker you don’t want a teacher or principal to find.

The reasonable suspicion standard also applies to searches of desks, backpacks, and cars parked on school property. One exception: the Ohio Supreme Court has ruled that the standard does not apply to searches of unattended backpacks.

The standard does not apply when students do not have a reasonable expectation of privacy, i.e. items that are in plain view, school property such as computers, including laptops owned by the school that students are permitted to take home. Student activity on school internet networks and the browsing/download histories are also subject to search and review.

While the rules that apply to public schools may seem to invite invasion of students’ privacy, the rules that apply to private schools are even more draconian because, for all intents and purposes, privacy protections exist do not exist.

So there you have it class—understanding your rights, or lack thereof, will help you avoid trouble. And, oh, by the way, you don’t have to worry about Professor Dave searching your locker or electronic devices, I respect the Fourth Amendment and anyway, I just don’t have the time.

A look back at SCOTUS’ 22-23 term, predictably conservative with a dash of surprise

Attorney David Betras
BKM Managing Partner David Betras

On Friday, June 30, the nine learned women and men who preside over the Supreme Court of the United States (SCOTUS) issued their final decisions for the 2022-2023 term, sent their black robes to the dry cleaners, and high-tailed it out of the nation’s capital—some, perhaps on private jets, a topic I’ll address in a future column.

That means it is time for me to hand down my annual review of the justices’ work over the past 12 months, beginning with just how much work they actually did. Each year 5,000 to 7,000 cases are filed with the Court, the vast majority arrive as appeals from the federal Appellate and District Courts and the highest court in each state. In an average year SCOTUS accepts 75 to 80 cases or approximately one percent. This year the justices took up 60 and decided 58. Given the Court’s conservative majority, people on the left of the political spectrum probably wish the number had been six, those on the right would be thrilled if 600 or more had made it onto the docket.

Although a number of the 58 decisions deal with significant issues that will effect millions of Americans for decades to come, none will have the seismic impact of Dobbs v. Jackson Women’s Health Organization which reversed Roe v. Wade and gave each state the authority to regulate abortion within its borders.  The aftershocks of that ruling are still being felt across the country, including here in Ohio, where a citizen initiated constitutional amendment guaranteeing reproductive freedom and abortion access may appear on the General Election ballot later this year.

With all that as preface, let’s take a look at some of the most important and closely watched cases decided during the term:

Biden v. Nebraska. Americans owe more than $1.78 trillion in student loan debt which is more than any type of debt other than mortgages. During the 2020 presidential election Joe Biden promised to cancel up to $10,000 of that debt per borrower. Wonder of wonders, after he won, he kept his promise and signed an executive order that wiped out $10,000 in student loans for borrowers with an annual income of less than $125,000. 

Officials in Nebraska, Missouri, and three other states were not amused. They sued, arguing that the Biden Administration did not have the statutory authority to implement the loan forgiveness program. A 6-3 majority of the Court, led by Chief Justice Roberts agreed and basically said everyone who owes has to pay up. As I write this the President, who noted that the government has forgiven $757 billion in loans to businesses made under the Paycheck Protection Program, is searching for a new way to deal with the problem.

Students for Fair Admissions v. President and Fellows of Harvard College and v. University of North Carolina. In these two separate cases, Students for Fair Admissions argued that Harvard’s affirmative action admissions program violated Title VI of the Civil Rights Act of 1964 by discriminating against Asian American applicants in favor of white applicants. The same plaintiffs argued that UNC’s program violates the Fourteenth Amendment by using race as a factor in admissions. The programs were upheld by the District and Appellate courts.

SCOTUS disagreed and in a 6-3 ruling overturned the lower courts and held that the use of race in college admissions is unconstitutional. In response, a number of colleges and universities are exploring utilizing class rather than race as a factor in making higher education more accessible to a wider segment of Americans.

Moore v. Harper and Allen v. Milligan These two cases which involve legislative redistricting and gerrymandering produced decisions that were surprising in light of the fact that the Court has in recent years handed down a number of decisions that eroded the landmark Voting Rights Act of 1965 and approved partisan gerrymandering.

In Moore the Court rejected North Carolina lawmakers’ claim that the “independent state legislature” theory gave them the sole authority to draw whatever districts they wanted in any way they pleased. In a 6-3 opinion written by the Chief, the Court held that districts drawn by state authorities were subject to review by the federal courts. The ruling has special significance for Ohio that I will address next week.

In Allen, a 5-4 majority, again led by CJ Roberts, found that Alabama officials had violated Section 2 of the Voting Rights Act by packing Black voters into a single district in a way that made it nearly impossible for Black voters to elect the candidates of their choice.

The two rulings provide a glimmer of hope that at some point before the end of the 21st Century our gerrymandering will be outlawed, and our electoral process will feature a modicum of fairness. OK, I’m not holding my breath, but I can dream can’t I?

Democracy word cloud

DAVID BETRAS: August’s ballot decision asking to create a 60% supermajority goes against majority rule

In the 220 years that elapsed since Ohio became a state, the General Assembly has never scheduled a special election for the sole purpose of considering a legislatively initiated constitutional amendment. That streak is about to come to an end. As I write this week’s column, the state’s 88 county boards of election, are preparing to do exactly that. This extraordinary situation provides context for a Civics lesson that I hope will provide voters with the information they need to make an informed decision when—and if-they cast a ballot on August 8.

Attorney David Betras
BKM Managing Partner David Betras

I say “if” because turnout for August specials is incredibly low. For example, only eight percent of the electorate participated in last year’s primaries for seats in the state house and senate. In fact, turnout has been so abysmal that the very same legislators who just scheduled the upcoming election actually voted to do away with them just a few months ago. I’ll have more to say about that in a bit.

For now, back to the Civics lesson. Let’s start with the basics: our form of government. While commonly referred to as democracies, the United States, Ohio, and the other 49 states are democratic republics in which the people vote for the representatives who do the actual governing. The Founding Fathers embraced this model because they believed it was the most effective and efficient way to manage the nation’s affairs.

The principle of majority rule is the engine that drives democratic republics. According to famed mathematician Kenneth May, majority rule is the only “fair” way to conduct elections because it does not allow some votes to count more than others and unlike super majority rules, it does not allow the status quo to prevail even though it received fewer votes.

Is the system perfect? Of course not. When our elected representatives abandon or ignore the will and wishes of their constituents due to corruption, gerrymandering, or the influence of big money, the public justifiably loses faith in government. That is exactly the situation that existed in Ohio at the beginning of the 20th Century. Outraged by a state government that was being sold to the highest bidders, a group of reformers and progressives convinced the voters to convene a Constitutional Convention in 1912.

During weeks of deliberations delegates wrote and voters later approved a proposal that serves as the antidote to unresponsive government: Article 2, Section 1 of the Ohio Constitution which enables citizens to place an amendment directly before voters on a statewide ballot who must approve it by a simple majority vote.

The citizen-initiated amendment process is, as it should be, complicated and laborious. Over the past 111 years, 71 proposals have been placed before the voters, 19 have been approved. Many have improved our quality of life including imposing a10-mill limit on unvoted property taxes, home rule authority for cities and counties, banning smoking in public places, and raising the state’s minimum wage and indexing it to inflation. By any measure, the process has benefited Ohioans.

Which brings us back to the impending unprecedented August election. For a reason I will not address here, the Republican majority in the General Assembly is placing an amendment that will fundamentally change the rules that govern the initiative process on the ballot in  August. Their proposal will raise the threshold for approving initiated amendments from the century-old 50% plus one standard to a 60% supermajority. If passed it will erase the principle that is at the very heart of our system of government and replace it with minority rule.

And, in a final bit of irony, they will only need to secure 50% plus one vote to do it in  election they hope most Ohioans won’t notice.

Constitutional scholar and former Ohio House members Mike Curtin believes trashing Ohio’s 220-year-old tradition of respecting voters is a historic and contemptuous act of bad faith. Fortunately, the voters, thanks to the 1912 Constitutional Convention, will have the final say.

A message from David Betras to anyone who is being questioned by the police: Shut Up!

Attorney David Betras
BKM Managing Partner David Betras

On a number of occasions, I’ve addressed what people should do if they are stopped and questioned by the police. Here’s an excerpt from an August 2021 blog post on the topic:

“First, if you are stopped by law enforcement and questioned you are under no obligation to do anything other than provide your name and ID.
Second, remember, the police will delay placing you in custody so they can use what you say to establish probable cause for arrest.
Third, your pre-arrest statements are admissible in court.
Fourth: Shut up. What you do not say cannot be used against you.”

That’s right I said just shut up.

I raise the topic today because as New York Times columnist Faraj Manjoo points out in his most recent piece, prosecutors in New Mexico plan to charge actor Alec Baldwin with involuntary manslaughter in the death of cinematographer Halyna Hutchinson. Hutchinson was working on the set of the movie rust when Baldwin pulled the trigger of a gun that was not supposed to be loaded with live ammunition. She was struck by a bullet and died shortly thereafter.

After the shooting Baldwin agreed to be interviewed by police without his attorney present, waived his Miranda rights, and did anything but shut up: “Still, for about an hour, Baldwin not only answered detectives’ many questions about the shooting but also offered his own theories about the incident and suggested the next steps the police might pursue in their investigation.”

As Manjoo notes, “The Fifth Amendment of the Constitution allows Americans to refuse to answer questions from law enforcement. Yet despite the ritualistic incantation of the Miranda warning on every TV police procedural, silence is a right that people can find hard to accept. If you’re convinced of your innocence, aren’t you obligated to help the police solve the matter under investigation? Refusing to talk to the police seems like something people do only when they’ve got something to hide.”

I’ve lost count of how many clients I’ve defended in court because they decided to abandon their Fifth Amendment rights and “help” the police who in turned helped themselves to an arrest.

In the column Manjoo praises the work of law professor and former defense attorney James Duane, one of the nation’s leading proponents of just shutting up when questioned by law enforcement. The video of his lecture “Don’t Talk to the Police,” has been viewed millions of times on YouTube, you should make it millions plus one by watching: https://youtu.be/d-7o9xYp7eE

In his lecture Duane offers this quote from former US Attorney General Robert Jackson: “Any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to the police under any circumstances.” It’s good to know that AG Jackson, one of the most respected lawyers in the history of American jurisprudence would think I am worth my salt.

“The average American — even if they’re a highly sophisticated college graduate or a law school student — really doesn’t know an awful lot about the many different ways in which even innocent people can regret for the rest of their lives the biggest mistake of their lives, the decision to waive their Fifth Amendment right and agree to talk to the police,” Duane said.

Duane argues that a key danger is that in trying to defend yourself to the police, you may unwittingly admit some wrongdoing. Navigating around such dangers is made all the more difficult because courts have given the police wide leeway to lie to people being interrogated.

“They will lie to you about what crime they are actually investigating,” Duane writes in his book, “whether they regard you as a suspect, whether they plan to prosecute you, what evidence they have against you, whether your answers may help you, whether your statements are off the record, and whether the other witnesses have agreed to talk to them — even about what those witnesses have or have not said.”

Manjoo closes his column with this passage: “The Fifth Amendment is no mere formality. It is among the best defenses against government overreach that Americans enjoy. We should guard it vigorously. Anytime you’re asked to talk to the police about an incident you are involved in, there are just four words you need to say: “I want a lawyer.”

And then please for the love of God, shut up.

Time for a Supreme Court retrospective; ‘goodbye and good riddance’

Three days after assuming the presidency in 2009, Barrack Obama looked House and Senate Republican leaders in the eye and uttered the phrase, “Elections have consequences.” The just-concluded term of the U.S. Supreme Court proves the former president was exactly right — most likely much to his chagrin. I know I have written about the court often over the past few months. Thankfully, this will be the last time I address the topic for a while because the justices are headed off to do whatever they do when they remove their robes and go on vacation. Here is a retrospective on the 2021-2022 term, which, by any measure, was one of the most consequential in history.

I will begin with the biggie: Dobbs v. Jackson Women’s Health Organization, the 6-3 decision that overturned Roe v. Wade and tossed nearly a half-century of legal precedent on the trash heap of history. With hours of the decision, Ohio AG David Yost successfully petitioned a federal court to lift a stay on the state’s “heartbeat bill,” which bans abortions after six weeks and does not include an exception for rape or incest. A few days later a 10-year-old girl who was six weeks and three days pregnant as result of a sexual assault was forced to travel to Indiana to receive the medical care she needed.

The 6-3 ruling in New York State Rifle & Pistol Assoc. v. Bruen eviscerated a New York state law that required residents to obtain a permit to carry a weapon and will make it extremely difficult for other states to strengthen their gun safety regulations. Keep in mind, this is the same year in which there were mass shootings in Buffalo, New York; Uvalde, Texas; and the July 4th massacre in Highland Park, Ilinois, where seven people died including the parents of a 2-year-old toddler who was left to wander down the street as her mother and father laid dead.

A number of decisions eroded the constitutional wall the Founding Fathers erected between church and state. Most notable were Carson v. Makin, which will make it easier for state governments to divert tax dollars from public education to religious schools, and Kennedy v. Bremerton School District, which cleared the way for prayer at public school football games and other events.

The conservative 6-3 majority struck a blow in West Virginia v. Environmental Protection Agency by curtailing the EPA’s ability to order existing power plants to reduce their carbon emissions. Ironically, this means that if more kids are born as a result of Dobbs it will be more difficult for them to breathe. Just saying.

Because the federal government has not broken enough promises to or heaped enough indignity upon Native Americans, the Court ruled against the Cherokee Nation in Oklahoma v. Castro-Huerta. Conservative Neil Gorsuch joined the court’s three liberals in dissent arguing that the decision reneges on the federal government’s centuries-old promise that tribes would remain forever free from interference by state authorities.

Because even a stopped clock is right twice a day, I will acknowledge that the justices ruled correctly in a few cases, including Biden v. Texas, a 5-4 ruling that permitted the current administration to reverse a Trump-era policy that requires asylum seekers to remain in Mexico while their cases are reviewed in U.S. courts. And Biden v. Missouri approved a federal vaccine mandate for health care workers employed at facilities that receive Medicare and Medicaid funding.

So, with that, I will say goodbye and good riddance to SCOTUS’s 2021-2022 term and take a three-month break from writing about the Supreme Court.

Leak of Alito’s draft Roe v Wade opinion threatens American jurisprudence

Supreme Court will decide unprecedented number of blockbuster cases during 2021-2022 term

Attorney David BetrasLike kids counting the days until Christmas, attorneys, legal scholars, and jurisprudence junkies, including me, eagerly anticipate the first Monday in October, the day the Supreme Court of the United States (SCOTUS) begins its new term each year. We can barely control ourselves as we wait for the justices to decide which of the 7,000 cases submitted to them annually become one of the 150 or so they hear.

Under normal circumstances, the justices go about their work in relative obscurity because the cases on the Court’s docket, which is dominated by battles between states over water rights, business disputes, and arguments about arcane legal principles, do not impact the lives of most Americans or generate much media coverage aside from long, jargon-packed pieces posted on SCOTUSblog. Believe me, if you have insomnia, spend a few minutes on the site and you will be sleeping in no time.

This year, however, is far from normal. Although the 2021-2022 term is less than two weeks old, the Court is under intense scrutiny because the justices have agreed to hear a number of cases that may ignite legal and societal firestorms while further undermining the public’s waning support for the Court which was once widely regarded, in the words of Alexander Hamilton, as the “least dangerous” branch of government.

Entrance to US Supreme CourtChief among the potential blockbusters is Dobbs v. Jackson Women’s Health Organization, which centers on a Mississippi law which, with few exceptions, prohibits abortions after 15 weeks of gestation. Dobbs gives the Court the opportunity to overturn  Roe v. Wade which established a woman’s right to choose and Planned Parenthood v. Casey, which protects that right until viability. It is, quite simply, the most important reproductive rights case to come before the Court in 30 years.

New York State Rifle & Pistol Association Inc. v. Bruen is the first significant firearms case to come before the Court since the 2008 ruling in District of Columbia v. Heller that extended Second Amendment protections to individuals. Bruen arrives at the Court on appeal from the 2nd Circuit which upheld New York state’s strict gun licensure law which requires residents to obtain a permit to possess a firearm and totally bans open carry. A decision in favor of the Association could gut gun laws across the nation.

Like Bruen, Carson v. Makin which challenges Maine’s prohibition against using state funds to pay tuition for schools that offer religious instruction has nationwide implications. The justices will decide if Maine’s law violates the free exercise, establishment, and equal protection clauses of the Constitution. If they so hold, voucher programs across the U.S., including Ohio’s will be impacted and taxpayer dollars will begin flowing to schools that promote religion.

Other important cases include Students for Fair Admissions v. President and Fellows of Harvard College which poses a lethal threat to race-based college admission programs,  CVS Pharmacy Inc. v. Doe which involves alleged discrimination against persons with HIV, as well as cases focused on national security, campaign finance laws, and Texas’ new draconian abortion restrictions.

The last time the Court ruled on this many consequential cases in one term was, well, never. Throughout history, cases of similar magnitude to the ones on SCOTUS’ 2021-2022 docket were heard and decided every five or ten years. As a result, one thing is certain: the justices will not labor in obscurity over the next 12 months.