MESSAGE
| DATE | 2016-09-07 |
| FROM | Ruben Safir
|
| SUBJECT | Re: [Hangout-NYLXS] All-Writ, the FBI and contempt of court
|
On 09/06/2016 11:07 PM, Rick Moen wrote:
> Quoting Ruben Safir (mrbrklyn-at-panix.com):
>
>> On 09/06/2016 09:02 PM, Ruben Safir wrote:
>>> has anyone followed the imprisonment and months long interment in
>>> Solitary Confinement of Francis Rawls, of Philadelphia? He is accused
>>> of watching child pornography and they are holding him in contempt of
>>> court because his systems are locked with cryptography.
>
> ^^^^
> Are you forwarding mail from your evil twin Ruben Safir?
>
> You did not bother to provide the news article, just the full text of an
> advocacy blog post. The interesting legal question is: What evidence
> did prosecutors provide to the judge to support application of the
> 'foregone conclusion' doctrine's exception to the Fifth Amendment?
>
> Without understanding the legal issue, your covering this matter is
> pretty fruitless. If you agitate about legal issues without bothering
> to understand the law, you are just making noise.
>
>
> NY Times article says on that point, 'Parts of the court documents that
> would explain the reasons for Mr. Rawls’s detention and the court order
> are still under seal.' So, we presently do not know.
>
> The doctrine was developed by the USSC in 1976 in the case Fisher v.
> United States, 425 U.S. 391, 411 and reaffirmed in United States v.
> Hubbell, 530 U.S. 27 (2000). The Fifth Amendment privilege against
> 'self-incrimination' has always been ruled to extend only to
> 'incriminating communitcations... that are testimonial in nature' (US v.
> Hubbell).
>
> Fisher was an IRS case in which defendant Fisher refused to produce
> documents sought by IRS, citing Fifth Amendment privilege. The USSC
> disagreed, ruling that "the act of producing [the papers]—the only thing
> which the taxpayer is compelled to dowould not itself involve
> testimonial self-incrimination." The Court held that the government
> can compel production when the "existence and location [of documents]
> are a foregone conclusion and [the defendant] adds little or nothing to
> the sum total of the Government’s information by conceding that he in
> fact has the papers." Thus, the act of producing papers wasn't
> testimonial; it was not functionally equivalent to admitting-guilt words
> from Fisher's mouth.
>
> By contrast, the USSC disagreed with prosecution in the Hubbell case,
> where a grand jury had subpoenaed documents from an official who refused
> to comply. Here, the Court found that the prosecution had _lacked_
> a priori knowledge of the subpoenaed documents, and thus compelling the
> papers would have constituted a testimonial act.
>
> Lower courts have tended to follow dicta in the Hubbell case and
> requiring the state seeking compulsion under the 'foregone conclusion'
> doctrine to be able to show the court independent, convincing evidence
> of the 'existence, custody, and authenticity' of the material sought --
> all three of those elements, not just police handwavium.
>
> Moveover, because of subsequent cases, in three District Courts (DC
> Circuit, Ninth Circuit, Eleventh Circuit), prosecution must also have
> existing knowledge of the subpoenaed documents with "reasonable
> particularity" before "the communication inherent in the act of
> production can be considered a foregone conclusion." (Philadelphia's
> served by the Third Circuit.)
>
> _So_, the implication in the Rawls case is that the judge has seen other
> evidence (so far under seal) that already convinced him/her past a
> reasonable doubt that the hard drives' contents are child pornography,
> which is why he ruled that decrypting them isn't a testimonial act, and
> refusing his order to do so is contempt of court. Rawls's public
> defender's job was to convince the judge that whatever-that-was _didn't_
> establish the 'existence, custody, and authenticity' of kiddie porn on
> Rawls's hard drives -- but on the evidence he didn't succeed.
>
>
> Now, you can dislike the court's holding if you like, but at least you
> understand it better.
>
>
> And, next time, don't try to understand legal issues by reading advocacy
> blog postings.
>
> _______________________________________________
> hangout mailing list
> hangout-at-nylxs.com
> http://www.nylxs.com/
>
Thank You for explaining why the court is using an unjust doctrine to
imprison someone in isolation for over 7 months without his being
convicted of a crime. This, BTW, came originally from an article that I
clipped with scissors from the NY Times on May 1st 2016 page 20. I just
got to it now. I don't care what evidence the Judge has (sealed BTW).
I only care that he is torturing a man in order to have him fork over
his decryption codes. The justification is irrelevant to me, although
others might find it of interest.
Reuvain
--
So many immigrant groups have swept through our town
that Brooklyn, like Atlantis, reaches mythological
proportions in the mind of the world - RI Safir 1998
http://www.mrbrklyn.com
DRM is THEFT - We are the STAKEHOLDERS - RI Safir 2002
http://www.nylxs.com - Leadership Development in Free Software
http://www2.mrbrklyn.com/resources - Unpublished Archive
http://www.coinhangout.com - coins!
http://www.brooklyn-living.com
Being so tracked is for FARM ANIMALS and and extermination camps,
but incompatible with living as a free human being. -RI Safir 2013
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