[extropy-chat] John John Perry Barlow vs The Man

[Mike Lorrey]

State district courts are notoriously unconcerned with constitutional
issues and refuse quite often to rule on the constitutionality of
issues. When the facts 'clearly' show you did the act in question, the
constitutionality of the law, or the methods of law enforcement, are
rarely called into question, particularly when the defendant is arguing
pro se.

If you have good lawyers on your side, like Barlow apparently does, and
the money to burn in their use, as he also seems to have, the district
courts will rule against you if the prosecutors want them to if only to
make you waste as much money and time and inconvenience as possible. It
is purely for discouragements sake.

Don't think for a minute that the judges and prosecutors are not on the
same side. Few judges have not spent time as prosecutors and/or
campaigned for their positions (officially or unofficially) on a hard
anti-crime stance.

--- Patrick Wilken <Patrick.Wilken at Nat.Uni-Magdeburg.DE> wrote:

> Amara:
> 
> But won't this will be appealed to a higher court? You wouldn't
> expect 
> the lowest level court to be particularly interested in making a bold
> 
> statement on the 4th amendment.
> 
> best, patrick
> 
> 
> 
> 
> On 17 Dec 2004, at 15:35, Amara Graps wrote:
> 
> > Sadly, it looks like things didn't go so well for Barlow at his 
> > hearing.
> >
> > John Perry Barlow's account of the situation (I posted this before)
> >
> http://barlow.typepad.com/barlowfriendz/2004/12/a_taste_of_the_.html
> >
> > Barlow's relevant legal documents
> > http://www.barlowfriendz.net/busted/
> >
> >
> > From an attendee in the Courtroom:
> > "Thursday 16th December 2004
> > In the Superior Court of California, County of San Mateo"
> >
> >
>
http://vitanuova.loyalty.org/weblog/nb.cgi/view/vitanuova/2004/12/16/1
> >
> > "On Wednesday I went to Superior Court for the hearing on John
> Perry's
> > motion to suppress. The defense claimed that the search at the
> airport
> > in 2003 was not "reasonable" and therefore that evidence obtained
> from
> > it should not be admitted. The Superior Court of California, County
> of
> > San Mateo, is accustomed to dealing with cases that arose at the
> San
> > Francisco Airport, but it's not particularly used to constitutional
> > challenges to aviation screening procedures, nor to having multiple
> > camera crews turn out for a single pre-trial evidentiary hearing in
> a
> > misdemeanor drug possession case. "
> >
> > [many details deleted here.. you should real the full acount]
> >
> > "Despite the drama and entertainment that developed at the end of
> the
> > defense testimony, the judge ruled against Barlow, denying the
> motion
> > to suppress and ruling that the search was lawful and that the
> results
> > of the search could be introduced into evidence against Barlow. In
> his
> > ruling from the bench, there was not a lot of intricate logical
> > argument about caselaw; instead, it was dominated by references to
> > common sense. (In appellate courts, in my experience, and perhaps
> even
> > in Federal trial courts, judges may be more apt to plunge into
> > abstractions and theoretical principles and the categories drawn by
> > caselaw; this judge seemed extremely disinclined to do that. I do
> keep
> > in mind that he had only seen the case file for the first time two
> > hours before, and that he was perhaps surprised by the explosion of
> > highly abstract civil liberties arguments, some of them likely
> matters
> > of first impression. I imagine that usually disputes in state trial
> > courts are a good deal more concrete!).
> >
> > "The judge mentioned that the penalty Barlow would face, if
> convicted,
> > would not be particularly severe, and seemed to express slightly
> > obliquely the view that it would be in Barlow's best interest to
> plead
> > guilty -- and that it was surprising that he hadn't done so, or
> would
> > be surprising if he didn't do so. (I think there's also a class
> issue
> > at work here. Most defendants can't afford to fight for principle
> and
> > can at the very best afford to look out for themselves, not for the
> > abstract rules by which the fourth amendment is brought to bear on
> a
> > class of cases.)
> >
> > "The judge remarked that obviously it must not be the rule that
> > screeners have to ignore contraband when they find it. So the
> > question, he said, is whether they have a reason to look in the
> first
> > place; if they have a reason to look, then they can use their own
> > judgment -- and that's what Ms. Ramos did. When she shook the
> bottle
> > and opened it, that didn't indicate that she was looking for drugs;
> > perhaps she was stupid to do so, but being careless about one's own
> > safety is not sufficient to make a search unreasonable under the
> > fourth amendment. She used her own judgment about the nature of the
> > threats and the best way of investigating them, which is a
> reasonable
> > search. Hence Barlow's motion must be denied; his argument about
> > reasonableness, while founded on a commendable concern with
> privacy,
> > is too broad in its implications, because it would ultimately
> suggest
> > that screeners must ignore contraband they find.
> >
> > "Apparently, Barlow did intend to suggest this. At least, he was
> > prevented from introducing a lot of evidence about how screeners do
> > things that are useful for finding drugs. At a minimum, Barlow
> wanted
> > to suggest that screeners who are supposed to be looking for
> > explosives should not be permitted to use search techniques or
> > procedures that are specifically aimed at finding drugs rather than
> > explosives (arguably, for example, shaking a bottle).
> >
> >
> >
> > -- 
> >
> > Amara Graps, PhD
> > Istituto di Fisica dello Spazio Interplanetario (IFSI)
> > Istituto Nazionale di Astrofisica (INAF),
> > Adjunct Assistant Professor Astronomy, AUR,
> > Roma, ITALIA     Amara.Graps at ifsi.rm.cnr.it
> > _______________________________________________
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> > extropy-chat at lists.extropy.org
> > http://lists.extropy.org/mailman/listinfo/extropy-chat
> >
> 
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=====
Mike Lorrey
Vice-Chair, 2nd District, Libertarian Party of NH
"Necessity is the plea for every infringement of human freedom.
It is the argument of tyrants; it is the creed of slaves."
                                      -William Pitt (1759-1806) 
Blog: http://www.xanga.com/home.aspx?user=Sadomikeyism


		
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