Are you ready to become an expert on your Constitutional rights? The news isn't good for American criminal justice as the rules and realities are two very different things. Here's where we stand in 2016.
Myth #1: You have the right to be secure against unreasonable searches and seizures.
This is definitely a myth in practice. The fourth amendment is basically burned and dead and buried in this country and exceptions to this supposed Constitutional right swallow the rule. If an officer lies in court about a search and seizure, DAs won't acknowledge it and judges won't give it a second look. Judges can know a cop is lying and way too often in my experience, those judges are basically in on the “joke”.
Judges in California see their job as to support police officers, right or wrong. A judge cannot survive reelection without the support of police officers, the police officers' union, and the DA's office. If a judge's job depends on making the DAs office and/or law enforcement happy, they are going to incorrectly choose law enforcement over someone accused of a crime every single time.
Myth #2: You have the right to remain silent.
If you want to argue that a police officer didn't read you your rights when you were arrested, the judge will always reply “F… You.” The Supreme Court of the United States decimated that rule within the last couple of years when they said that citizens must affirmatively assert their right to remain silent.
Consider the words… REMAIN Silent. The statement itself presupposes silence before AND after. Before, I was silent. The cops came, and I REMAINED silent. You can almost see the Supreme Court choking their laughter back when an officer asserts “He didn't SAY that he wanted to remain silent.”
If we have the right to REMAIN silent, this means we should never have to say ANYTHING. Our Supreme Court completely took that right away. It's a vulgar way to look at things, but is also the most honest analysis of what has happened to this key Constitutional right.
Myth #3: No one shall be deprived of life, liberty or property without due process of law.
People talk about sustainability in terms of the environment, but we don't talk about sustainability in terms of our political systems. Someone in a position of power being egocentric or vindictive or hateful and using their position of power for their own personal gain is not sustainable.
Early in my career, and a lot of older people will remember this, if you got in trouble and were willing to join the military, the DA's office would dismiss your case and let you go into the military. If you were willing to put your life on the line for our country, they were willing to let the little matters go. Now, the deputy DAs are so vindictive they would rather deprive our military of service men and women and deny someone an opportunity to redeem themselves by giving them a conviction.
Because DAs aren't being discriminatory in terms of what charges to file or not to file, what charges to pursue or not to pursue, our prisons are full. In California a few years ago, we had something pass through the legislature called “realignment,” which made it so that low level offenders, instead of going to prison, would do their prison time in county jail (which is now also getting full).
Along with realignment came “flash incarceration.” For people who do make their probation officer angry or rub him the wrong way, the probation officer can do flash incarceration, putting people right back into prison without any check of a judge or jury. It's simply because they feel like it and with no accountability or judicial review.
When I first started, if a 19 year old dating a 17 year old had engaged in adult behavior but were going to get married, the DA would dismiss the charges. Now, they will prosecute. The man will end up having to register as a sex offender for the rest of his life, destroying chances of future employment, housing and other opportunities.
Back in the day, if two kids got in a fight, they were suspended from school for a week and would come back and become best of friends. Nowadays, when two kids get in a fight, they're expelled. The winner of the fight is given a criminal record and maybe even a strike (under California's notorious 3 strikes law) to boot. If a kid is wearing the color red or some specific sports gear then gang charges are added on top of everything.
Let's talk about asset forfeiture. If law enforcement believes your money was in any way related to a drug crime, they can seize your money and property and the DA's office doesn't have to file charges for five years in order to keep it.
They take first – then it's up to you to file a claim to get it back. This recovery effort costs money, including payment of jury fees. The burden is on you to fight it and get it back.
If you are being investigated or have been arrested for a crime, get an experienced criminal defense attorney on your side as soon as possible – one who understands the reality of today's criminal justice system as well as the rules. Hardworking, ethical American citizens deserve the best possible defense. It IS possible to protect yourself and preserve your freedom, but it isn't easy. A powerful and aggressive legal defense team is the answer.