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Is White House fence jumper getting a pass?

My latest column on CNN Opinion: http://www.cnn.com/2015/06/10/opinions/cevallos-white-house-fence-jumper/index.htmlAttorney at Law Danny Cevallos on White House fence jumper

 

(CNN)Prosecutors have asked a federal judge to sentence Omar Gonzalez, who scaled a White House fence in September, to almost two years in prison.

The reaction from the public and lawyers alike was similar — it feels like a light sentence.

But federal court is generally not the place where you hear about a “slap on the wrist” type of sentence. Quite the opposite — stories about federal sentences resemble mournful dirges about banishment and oblivion.

For example, there’s a formerly convicted felon who got 15 years for possessing shotgun shells. There’s a man with no history of drug dealing who received a 25-year mandatory minimum for selling his prescription pain pills to an undercover informant.

Unlike state and local courts, federal court is the Thunderdome.

The U.S. Sentencing Commission is an independent agency in the judicial branch of government. It establishes sentencing guidelines for federal courts directing the appropriate form and severity of punishment for federal offenders. Sentencing judges, while not bound to apply the guidelines, are required to calculate and consider them when sentencing.

So how does sentencing actually work? In both state and federal courts, the algorithm of sentencing is at its core a function of: one, the gravity of the offense you were just convicted of, and two, your prior criminal record. After that, a broad spectrum of aggravating and mitigating factors can be presented to the court.

While sentencing in federal court is designed to be formulaic, to jaded defense attorneys that formula usually feels like — start at 120 months. Then, add 240 months. Then, tell client to kiss his family goodbye.

Is White House fence jumper getting a pass

Defense attorneys have long criticized the federal sentencing guidelines as draconian. There’s a reason why so many cases in federal court result in plea agreements — the risk of being convicted at trial and sentenced to the equivalent of a one-way trip to Mars is just too much for most defendants to stomach. The choice to plead guilty or go to trial is often really a Hobson’s choice, i.e., no choice at all.

That’s why everyone — civilians and attorneys alike — probably thought the government’s sentence of Omar Gonzalez seemed light. But if you calculate the prescribed guidelines, the prosecution’s recommendation is actually on the high end.

In a world dominated by oppressive mandatory minimum sentences, it turns out that rushing to the White House with a weapon and laying your hands on federal officials trying to stop you from rushing the White House … is not as serious as other federal crimes.

At least according to the Sentencing Commission and Congress. Now Gonzalez was aided by the fact that he pleaded guilty and accepted responsibility, which can get you a decent reduction at sentencing. But otherwise, the sentencing range for this Army veteran is only 15 to 21 months of imprisonment, and that’s even with Gonzalez’s prior criminal record.

If you think the fence jumper’s sentence is light, don’t blame the U.S. attorneys. They asked for a sentence at the top of the guidelines, which means they asked for the most time within the prescribed range of months.

You could blame Congress for the light sentence and guidelines, but there were certainly enough federal statutes available in this case. The government dropped several of them in exchange for Gonzalez’s plea agreement.

When a federal judge hands out a double-life sentence for mailing 5.2 grams of LSD to a buddy, we don’t bat an eye. In federal court, we’re surprised when a sentence doesn’t eat up at least half of one’s natural life.

Full disclosure: I’m one of those criminal defense attorneys who has had his heart broken by federal sentences handed out to his clients. It makes practicing in federal court a harrowing, sometimes soul-crushing endeavor. Federal court is not for the faint of heart.

Maybe Gonzalez’s sentence was appropriate. Maybe it just feels light because we’re used to all the other seemingly interminable federal sentences. Then again, if Gonzalez’s sentence fails to deter the next White House fence jumper, perhaps it was indeed not harsh enough.

Is female sterilization OK or creepy?

(CNN) — Recently, Nashville’s district attorney banned prosecutors from offering female sterilization in plea deals. Believe it or not, Nashville prosecutors have offered this option four times in the past five years.

There has been public outrage at the notion that a defendant in America in 2015 would be offered a choice of sterilization as part of a plea deal.

Except, it happens all the time.

Some have claimed this practice “evokes a dark corner of American history” where the mentally ill or “deficient” were forced to undergo sterilization.

Yeah, that’s true. We did that. And it was bad. Except this isn’t quite that.

Female sterilization is linked to the controversial “eugenics” movement, which advocated for the notion that the human race can be improved by selective breeding of people with superior genes.

There is even a 1927 Supreme Court case, Buck v. Bell, in which the justices ruled that a state statute permitting compulsory sterilization of the unfit and “imbeciles,” “for the protection and health of the state,” was constitutional. The opinion in the case is stunning, especially because the Supreme Court has never technically overruled it. But Buck v. Bell dealt with involuntary sterilization of people because of their mental disabilities, not because they were being punished for a crime.

You can hate sterilization, and the Tennessee case may have the creepy feel of the antiquated practice of eugenics, but it’s not that. Present-day sterilization plea deals involve a voluntary choice of sterilization by persons accused of a crime, and for whom sterilization will be part of their punishment.

Others may argue that the Supreme Court has already spoken on the issue of compulsory sterilization as punishment, and struck it down. That’s true too, sort of.

In Skinner v. Oklahoma, the court struck down a law permitting compulsory sterilization of criminals as unconstitutional, but not because it was cruel and unusual. Instead, the law was struck down because the law was unequally applied for similar crimes.

So the question remains: Is sterilization as a punishment unconstitutional?

The Eighth Amendment provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

Practically, however, punishments are rarely deemed cruel and unusual by the judiciary. We have executed people with hangings and by firing squad. Sterilization has to be somewhere below that, right? Ultimately, however, the constitutionality of sterilization may be a red herring in this analysis, because it appears that even if a punishment violates the Constitution, it is permissible, if you willingly choose it.

Suppose arguendo (for argument’s sake) that sterilization is judicially labeled a cruel and unusual punishment, violating the Eighth Amendment. This is where it gets interesting: It still might be an appropriate and constitutional part of a plea deal. Shocked? You shouldn’t be.

As citizens, we validly waive our constitutional rights all the time. You waive your Fourth Amendment protections against search and seizure when you answer “yes” to an officer’s “Mind if I look in your trunk?” You waive your Fifth Amendment privilege against self-incrimination when you try to explain to the detective in the interrogation room how that body got in your vehicle’s trunk. So then, if we can validly waive our other constitutional rights, can we waive our Eighth Amendment rights and choose a cruel and unusual punishment, .even if it would otherwise be unconstitutional? And are people outraged because this is a new step in punishment or a new frontier and a slippery slope in the world of plea deals?

Nope.

Sterilization statutes have been around for a while as punishment for defendants all over the country, and defendants have willingly chosen the procedure.

If sterilization plea deals are likely constitutional, and we’ve been doing it for a while, then that begs the question: Why the outrage now? Why the story that a Tennessee prosecutor was fired for a plea bargain that appears to be widely practiced?

There are really only two possibilities. First, some people just had no idea that this was going on until this story hit the news. Second, even if we knew about it, we didn’t mind the practice until now because of one fundamental difference.

Most of the sterilization defendants are men.

Search your feelings, Luke. When we talk about castrating men who are recidivist sexual predators and child molesters, the idea of castration as punishment doesn’t sound so bad right? Be honest: Let go of your “we’re-all-equal-in-all-ways” banner for a moment. After all, not too long ago, execution was a legal punishment for nonhomicide sex crimes in some jurisdictions. So if we’re OK with the gas chamber, we’re probably OK with a snip. It’s OK. You can admit it; we are all hardwired with a modicum of gender bias, whether we like it or not.

Still not convinced? Watch this parlor trick: What if I suggested sterilization for a person convicted of having sex with a minor? So far you’re not ruling it out.

And what if it’s a young female high school teacher having sex with her 17-year-old student? Most of our gut feelings shifted from “maybe” to “no” just now. It’s OK to admit that, too. Of course, sterilization won’t prevent a female sex offender from offending again, no more than sterilization will prevent a male offender from offending again. But the point is, somehow, the notion of sterilizing a male criminal somehow sits better with us than sterilizing a female criminal.

Maybe it’s that on a primal, unconscious level, what feels cruel and unusual punishment for a woman just feels less so for a man. Even if you’re offended by this theory of why an old practice is now a “shocking” news story, you must concede it fits. Why else has castration of men not been a blip on the radar, but offering a woman the option of sterilization is suddenly a travesty? Of course, we have to consider the related justification. Overall, a lot more men commit acts that merit sterilization than do women. Just ask any domestic violence prosecutor.

Are sterilization plea deals morally right? It’s hard to say. For now, they appear to be constitutional, but controversial. If we know a mother is likely to kill or seriously hurt her current children or her unborn child, should the government step in? If so, to what degree? Fortunately, we can avoid a final decision and continue to attack the problem in a way that seems to be more acceptable for now: just keep neutering the men.


Originally posted at http://www.cnn.com/2015/04/09/opinions/cevallos-female-sterilization

Can UVA fraternity sue Rolling Stone?

(CNN) — According to an outside review by Columbia Journalism School professors, “(a)n institutional failure at Rolling Stone resulted in a deeply flawed article about a purported gang rape at the University of Virginia.”

The Columbia team concluded that “The failure encompassed reporting, editing, editorial supervision and fact-checking.”

Hardly a ringing endorsement of the editorial process at the publication.

The magazine’s managing editor, Will Dana, wrote, “We would like to apologize to our readers and to all of those who were damaged by our story and the ensuing fallout, including members of the Phi Kappa Psi fraternity and UVA administrators and students.”

The next question is:

Can UVA, Phi Kappa Psi or any of the other fraternities on campus sue for defamation?

The Virginia Supreme Court said in Jordan v. Kollman that “the elements of libel are (1) publication of (2) an actionable statement with (3) the requisite intent.”

“Actionable” means the statement must be both false and defamatory. Of course, the law of defamation must be balanced against the freedom of speech protected under not only the First Amendment to the United States Constitution, but also the Virginia Constitution.

True statements cannot be defamatory. Neither can pure statements of opinion, because they theoretically cannot be either true or false. But the Rolling Stone article certainly purported to be fact, and it apparently is not exactly what the law considers “true.”

The individual members of the fraternity will likely be considered private individuals, and not public figures; the latter have a harder time proving defamation.

A private person suing for defamation must establish that the defendant has published a false factual statement that is about the person and that it also harms the person’s reputation. The private plaintiff also must show that the defendant knew that the statement was false, or believed it was true but lacked a reasonable basis, or acted negligently in checking the facts. At first blush, that sounds like it fits perfectly, right? The Columbia report may go a long way toward establishing at least a modicum of the required intent.

But that’s only half the battle. There are strict rules about who can be a plaintiff in a defamation action like this. The identity of the aspiring plaintiff matters.

First, let’s eliminate UVA. The university is a public university, and therefore it is a governmental entity. The Supreme Court has been clear on the issue of libelous statements about the government: The government cannot sue for defamation. There is no such cause of action in American jurisprudence.

Now the fraternities, starting with Phi Kappa Psi.

A fraternity is not an individual, but a group. A plaintiff in a defamation case must show that the statements were “of or concerning” the plaintiff. It sounds obvious, but if you’re going to say a statement hurt you, you have to prove the statement actually was about you to begin with.

When the statements are about a group without naming an individual, it’s hard to say the statement is “concerning” the individual — and groups generally cannot sue. For example, you can be sued if you call a specific lawyer a thief, but that same person cannot sue you if you simply call all lawyers thieves. Defamatory statements about a group are therefore not actionable by the group’s individual members, for the most part.

Like all rules, however, there are exceptions. If the defamatory language is about “a comparatively small group of persons and the defamatory part is easily imputed against all members of the small group, an individual member may sue.” If I said, “The 1980 Philadelphia Phillies infielders were a bunch of criminals” (they weren’t), the individual players could sue, because that mean statement is clearly about certain persons — if I said that — which I didn’t.

Phi Kappa Psi would likely argue that the “small group” exception fits it perfectly: Even if the individual members were not identified by name, the defamatory story has been imputed directly to individual members, who have suffered by their association with the group.

On the other hand, Rolling Stone’s lawyers would likely argue that the group is so large and fluid (after all, the membership changes somewhat every year), that even though the fraternity’s reputation is tarnished, the members have suffered no individualized injury.

As for the other fraternities on campus but not implicated in the story, that’s likely a group that moves from the small category to large, and the members of Greek life generally will have a harder time bringing a lawsuit.

Lawyers will tell you that a libel suit is one of those things that citizens often threaten each other with on Facebook, but that such cases are rarely actually filed. That’s because a plaintiff usually has to show some kind of financial harm. So if your Aunt Edna calls you a loser on Twitter, you’re going to have to spend money on an expert to explain to a jury how that actually damaged you financially. And since most of the people who waste time threatening each other with defamation suits on Facebook live in their moms’ basements and are “between jobs,” these are not the kind of people who have money or reputation to damage in the first place.

The UVA situation is not your run-of-the-mill defamation case. The university won’t be able to sue, but if the members of the fraternity can get past some of the preliminary hurdles of a defamation claim, and they can make a tangible case for damages, then this could be one of those rare successful defamation cases.


Originally posted at http://www.cnn.com/2015/04/06/opinions/cevallos-rolling-stone-retraction-legal-consequences

The Justice Department’s questionable battle against FedEx

(CNN) — The United States Department of Justice has named a new defendant in the war on drugs, and the charges are serious indeed.

A 15-count indictment filed in federal court in California bristles with accusations of conspiracies, transporting prescription pharmaceuticals dispensed with illegal prescriptions, violations of the Controlled Substances Act, misbranding charges, and money laundering charges.

Who is this menace to society?

FedEx.

Yes, the courier delivery service.

Wait, can companies even be charged with crimes? Where would a FedEx be incarcerated? Is there a corporate Shawshank Prison? How does one fit a company for a prison jumpsuit?

It turns out a corporation can indeed be prosecuted like a person. It’s a practice the Supreme Court has approved of for over a century. In fact, in many ways they are easier to prosecute than people. Corporations don’t have all the same inconvenient constitutional rights as citizens accused of crimes. Imprisoning convicted citizens is expensive, but corporate convictions, on the other hand, turn tidy profits for the U.S. government, with zero prison overhead.

Even if corporations can be held criminally liable, should a courier service like FedEx be held liable for “possessing” what bad guys may send through the service?

The answer, according to FedEx, is not just “No,” but a “No” so conclusive that this case should never see a courtroom. The company maintains that it is innocent.

It has a point.

“Possession” is an elusive concept. When it comes to drugs, the law recognizes two kinds of possession: actual and constructive. Actual possession is when you have physical control over the contraband. When you have a gun in your hand or drugs in your pocket, you “actually” possess those things.

The somewhat hazier concept of “constructive possession” means you can “possess” something without even having it on your person, as long as you have ownership, dominion or control over the contraband or the property where it is found. For example, the government would argue that while you may not have actual possession of the 5,000 OxyContin pills in the trunk of your car parked in your driveway, you “constructively” possessed them.

Conversely, sometimes you can be holding something in your hand or have it in your vehicle, but not “possess” it either actually or constructively, in the eyes of the law.

Such is the case with couriers who routinely drive to your home, walk up to your door and hand you a package, completely ignorant about what is inside it. It’s hard to argue the UPS guy intentionally “possessed” your subscription to porno mags, in their nondescript brown packaging. That is the idea behind the “common carrier” exception to possession, and a large part of FedEx’s compelling legal argument.

A “common carrier” is one who offers its services to members of the public — without much discretion — and is engaged in the business of transporting persons or property for compensation.

The public policy reasons behind “common carrier” exemptions make sense; the industry simply couldn’t function if every driver, courier and handler who touches a valid shipment of OxyContin had to obtain a prescription for opiates to be legally allowed to deliver it to your front door. That would lead to an absurd result.

That’s why the Controlled Substances Act and the Food, Drug, and Cosmetic Act allow common carriers to lawfully possess controlled substances, so long as it is in the usual course of their business.

Of course, this is not a permission slip for drug runners to avoid liability by calling themselves “common carriers.” That’s why the “usual course of business” language acts as an additional safety measure.

In court papers, FedEx’s lawyers offer the example of an airline whose sole activity was flying controlled substances from Jamaica to Miami. This would not be acting in the usual course of business of a common carrier, since this imaginary airline is not offering its services to the public, generally.

On the other hand, FedEx argues that it is indeed a common carrier, performing the normal duties of a common carrier, because (a) it is engaged in the business of transportation of property and (b) it offers its services to the public generally.

It’s hard to imagine extending liability to common carriers for possession of contraband. Does this mean a Greyhound bus driver becomes liable for marijuana possessed by a passenger? The bus driver would argue he has no reason to know if a particular passenger is carrying drugs. But if the guy boards the bus with a Grateful Dead T-shirt and a set of bongos, shouldn’t the driver at least have a hunch? That seems dangerously close to profiling. Is this another illogical straw man argument? Maybe.

Obviously, the Department of Justice disagrees, which is why it has brought this criminal prosecution.

According to the indictment, from at least as early as 2004, the Drug Enforcement Administration, the Food and Drug Administration, and members of Congress put FedEx on notice that illegal Internet pharmacies were using its shipping services to distribute controlled substances and prescription drugs in violation of the Controlled Substances Act, the Food, Drug, and Cosmetic Act, and numerous state laws.

The indictment alleges that as early as 2004, FedEx knew that it was delivering drugs to dealers and addicts. FedEx’s couriers in Kentucky, Tennessee, and Virginia expressed safety concerns that were circulated to FedEx senior management. The DOJ is making the argument that even though FedEx carries and delivers whatever is handed to it by the public, FedEx knew or should have known in specific instances that it was involving itself in suspicious drug activity.

It raises a larger question, though: Why do we prosecute inanimate objects that we can’t even incarcerate? The answer is the same reason that the drug dealers deal drugs, and drug smugglers smuggle them: Money. Power.

The government in these cases gets to impose its will and policy upon large corporations — in this case, it would be to force FedEx to help law enforcement in policing shady pharmaceutical transportation. The government also gets to extract gargantuan sums of money from corporations in “deferred prosecution agreements.”

The reason you don’t see a lot of corporate trials is because most companies prefer to enter into such agreements; for a company, a public prosecution alone would be tantamount to a death sentence, whether or not it’s found guilty. Still, every defense attorney would love to offer the option to his or her human clients of avoiding felony conviction and a potential life sentence — by agreeing to pay some fines.

Don’t get me wrong: I’m all about prosecuting the black market, especially if that means prosecuting the guys who send us those spam emails to our work accounts with “V1AGRA” in the subject line, for our co-workers to see while we go to the bathroom. I want those guys locked up for sure. I’m just not sure that FedEx has anything to do with the kingpins of the “FR33 CYALIS” email campaign.

The DOJ’s underlying intentions are noble enough — this is an attack on the supply line of the illegal drug market by attacking the actual supply chain. It makes good strategic sense. It might seem like good financial sense in the short run, with the millions in fines extracted from corporations, but that money has to come from somewhere.

It’s just a matter of time before that trickles down to job cuts and less leg room on our flights. It probably doesn’t make good legal sense either. Yes, we have been treating corporations as fictional “persons” for centuries in some ways — but it’s silly to treat them as persons in all ways. FedEx has a strong argument for dismissal in this case, but even if not, it won’t be swapping its logo orange for prison orange anytime soon.


Originally posted at http://www.cnn.com/2015/04/05/opinions/cevallos-fedex-common-carrier-drugs

Does Alabama law put minors seeking abortion on trial?

(CNN) — The American Civil Liberties Union is challenging an Alabama law that will force those under 18 seeking an abortion to go through an adversarial process that’s akin to a trial.

Generally, laws in the United States require parental consent for a minor to obtain an abortion. But for some children, parental consent is impossible or even dangerous. This class of minors must seek a judicial bypass. While the bypass is a common feature of abortion laws in other states, this Alabama law may have gone too far. Here are the suspect provisions of this “bypass by trial”:

  • Alabama has turned what is supposed to be an informal, child-centered hearing into more of a trial.
  • The court can appoint a Guardian ad Litem — normally an appointed lawyer for a child in, say, a divorce proceeding or a hearing involving unfit parents — for the fetus.
  • The minor may be cross-examined by the district attorney and possibly the minor’s parents.
  • Information about the minor’s pregnancy may be disclosed to her family, friends and employers, and they might even be brought to court to testify — against the minor.

When it comes to abortion, minors are supposed to enjoy the same constitutional right of privacyas adults, free from undue state interference. However, the Supreme Court has also specifically articulated reasons why the constitutional rights of children are not identical to the rights of adults. Children are vulnerable and unable to make critical decisions and, of course, parents have a right to participate in raising their child.

States may pass laws that subject minors seeking an abortion to an additional requirement: parental involvement. However, if the state chooses to require parental consent for a pregnant minor to get an abortion, the state also must provide an alternative procedure for obtaining that authorization — one that “bypasses” having to get Mom and Dad’s permission.

The Supreme Court has required that these hearings “must assure that resolution … be completed with anonymity and sufficient expedition to provide an effective opportunity for an abortion to be obtained.” Plus, and perhaps most importantly, the procedure bypassing parental consent cannot be a thinly veiled mechanism for an “absolute, and possibly arbitrary, veto.” In plain language, hearings must be quick and quiet, and they cannot be held in kangaroo court.

The problem is, this does not give a lot of detailed direction to courts about how exactly to conduct these hearings. It’s not surprising that court procedures vary wildly, and that sooner or later, a state like Alabama would experiment with state abortion law. Our system was specifically designed to allow states to experiment with social and economic legislation. Of course, that state prerogative is also tempered by a federal court’s power to strike these laws down if they are unconstitutional.

In this case, the ACLU’s position is that creating an adversarial hearing goes too far. A hearing is fine, it seems, but something approaching a trial rises to the level of an impermissible “undue burden” on the right to have an abortion. This has been defined by the courts as placing a substantial obstacle in the path of the adult, or minor child seeking the abortion.

The federal court that reviews these state statutes will be charged with determining whether Alabama’s law violates established Supreme Court bypass requirements.

But what about the actual bypass requirements themselves? They are a creation of the Supreme Court. Striking down an act of a state legislature is one thing — challenging settled Supreme Court precedent is entirely another.

What if the constitutional standards for bypass procedures contain something of an intrinsic paradox? Consider how it applies in this case.

In Alabama, a judge at one of these hearings is required to waive the parental consent requirement if the judge finds either:

  1. that the minor is mature and well-informed enough to make the abortion decision on her own; or
  2. that performance of the abortion would be in the best interest of the minor.

Abstract concepts like “mature” and “best interest” are rather amorphous at best. (True story: A respected law professor advised many classes of students that when confronted on the bar exam with a question about a child, do the following: Write “best interest of the child” somewhere in the first sentence; then write “whatever the heck you want” for the rest of the answer.)

So then, the court must determine whether the minor is mature — mature enough that she may have the court’s permission to have an abortion. This means the court can then arrive at this Kafkaesque, perplexing alternative: A particular minor is too immature to have an abortion — with the result being that this immature minor … should therefore be … a parent of an infant? It gets stranger: What about a finding that it is in the best interest of the young mother to have the baby, even though she is deemed too immature to have an abortion? How would it be in the best interest of the immature mother to have a child?

State courts and legislatures are not completely to blame; after all, the law of minors and juveniles is always going to be about some difficult but arbitrary line-drawing. Whether we’re considering the drinking age, the driving age or the voting age, we’ve learned over the centuries that kids mature at different ages. Plus there is no easy legal formula to address the myriad situations of messed-up families.

Unfortunately, legislatures must draw some lines — lines that will not always be workable in every situation. And there are surely situations where the bypass might actually be effective: for example, a very young pregnant minor with completely absent parents, who needs court intervention. The problem is, if it creates an undue burden in one situation, then it’s constitutionally suspect.

But ultimately, building up the procedural hurdles for a pregnant minor almost by definition encroaches upon the limits set some time ago by the Supreme Court. It’s a procedure that needs to be defined; teen pregnancy certainly isn’t going anywhere anytime soon. Neither are lousy families, unfortunately. Whether the boundary lines of judicial bypass ebb toward the autonomy of minors, or back toward the state interest in the fetus, the broader social “findings” of judicial bypass proceedings will always remain the same: It’s all very sad.


Originally posted at http://www.cnn.com/2015/03/23/opinions/cevallos-alabama-abortion-trial

Robert Durst’s bathroom folly

(CNN) — The end of “Jinx,” the six-part HBO documentary about real estate heir Robert Durst, has launched a debate about whether some potentially incriminating statements Durst made while in the bathroom to a microphone may be used in his criminal prosecution.

Durst, as you probably heard, is charged with murder in a killing in California 15 years ago, and he has been suspected, but never charged, in the disappearance of his first wife in New York.

Whether or not the taped words of an accused person will be admissible against him involves a look at the rules of evidence and the Constitution, as well as our fast-evolving ideas about privacy. While Durst’s attorneys can make a number of arguments to suppress these statements and bar their admission at trial, the bathroom confessions will likely be factored in.

Let’s go over three main reasons why:

1. Is this inadmissible hearsay? Probably not.

Hearsay is defined as a statement made outside of court that is offered in court for its truth. It really just means a witness can’t testify at trial about someone else’s version of the facts.

If a sentence starts with “He told me” or “She said that,” it’s probably hearsay. As general proposition, hearsay is supposed to be inadmissible, but the exceptions nearly swallow the rule itself — so much so that many commentators have suggested abolishment of the exception-riddled rule itself.

Perhaps the largest and best known category of hearsay exceptions is admissions and confessions. These can be admitted against a defendant. Why? Well, the idea is that these statements are reliable. The thinking is that people don’t ordinarily confess to something unless they did it.

2. Is this a violation of Durst’s constitutional privilege against self-incrimination? Again, probably not.

The rules of the U.S. Constitution are a different matter. The Fifth Amendment’s self-incrimination clause states that “[n]o person … shall be compelled in any criminal case to be a witness against himself …”

By definition then, compulsory self-incrimination requires, well, “compulsion.” And not just any compulsion. The kind of compulsion targeted by the Fifth Amendment is governmental coercion.

Durst may still contend that his “confession” wasn’t voluntary. It’s true that confessions deemed “involuntary” are often excluded at trial under the Due Process Clause of the 14th Amendment. However, a confession will only be considered involuntary if it is the product of police activity.

Voluntariness is not an issue when admissions are made to a private person, such as a journalist.

What of Durst’s likely claim that the filmmakers were essentially acting as an arm of the police? Sometimes law enforcement exercises so much control over a civilian that his private actions become police action, constitutionally speaking.

This is not an easy case for a defendant to make, though. Durst would have to establish that the HBO interviewers were direct agents of the police and that the interview was coerced by police.

The police undoubtedly benefited from the work of these citizen documentarians. But the police frequently benefit from the work of good Samaritans or citizens volunteering information, photos or iPhone videos. The television show “America’s Most Wanted” has been premised on this idea for decades. Given the defendant’s burden here, it’s unlikely that he can convince a judge that, in light of all the circumstances, filmmakers acted as an instrument or agent of police.

The bottom line is this: A voluntary confession must be the product of a rational intellect and a free will, not physical intimidation or psychological pressure. How was Durst “pressured” when alone in the bathroom? However, his attorneys might argue that some mental impairment rendered him incapable of the necessary rational intellect and free will.

3. Can Durst argue for some “reasonable expectation of privacy” that was violated by his being taped in the bathroom? Not in our modern world, and not in this case.

Perhaps in decades past, a court might be offended at an audio recording of someone in the bathroom, but things have changed.

Subjects of documentaries and reality TV stars alike routinely sign contracts allowing camera crews to pin a microphone to their lapels and follow them around 24 hours a day. Moreover, everyone in the television news business has a story about some famous correspondent going to the bathroom and forgetting about their “hot” mic. In this brave new media world, the rule appears to be: You wear a lavalier microphone at your own risk.

This is why defense attorneys tell clients to not give interviews. No matter how good an interviewee a client may be, audio and video editors have an uncanny knack for isolating the less than flattering sound bites. Admitting to killing “them all” would fall into this category.

When it comes to giving interviews, it’s probably better for defendants such as Durst to keep silent and be thought a fool than to open your mouth and remove all doubt, especially doubt of the reasonable kind.


Originally posted at http://www.cnn.com/2015/03/18/opinions/cevallos-hbo-robert-durst/index.html