[conspire] (forw) Re: [Hangout-NYLXS] All-Writ, the FBI and contempt of court

[Rick Moen]

----- Forwarded message from Rick Moen <rick at linuxmafia.com> -----

Date: Tue, 6 Sep 2016 20:07:10 -0700
From: Rick Moen <rick at linuxmafia.com>
To: hangout at nylxs.com
Subject: Re: [Hangout-NYLXS] All-Writ, the FBI and contempt of court
Organization: If you lived here, you'd be $HOME already.

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.

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