Law Office of Michael J. Kennedy

Stop talking to the cops when contacted about possible criminality! They are not your friends, pastors, social workers, confidential confessors: they are there to put cases together, by any plausible means possible. You have a right to silence (whether Miranda applies or not): exercise that right. More expansive discussions of that issue can be found on my blog: www.kennedyforlaw.com

Good Grief, Patrick Kennedy and I were jeeping in that area a week ago!

It is vital that people not let down normal guards against government overreaching merely because we are in the midst of a pandemic emergency. The general rules about being careful about what you do in your exchanges with government regarding statements, turning over hard evidence, accusing others, etc., still applies. To be sure, we are being well-served by our government and private first responders, etc., but when the emergency is over, criminal cases will be prosecuted,... and if you have unwisely shot off your mouths about things you have done, what loved ones have done, what you have observed, how you feel about things, and if your mouths have supplied evidence against yourselves, it will not be of any assistance to cry that you were only cooperating because of the health concerns. Your mouths and cooperation can put you and loved ones in jail regardless of the health concerns of this deplorable day. Protect yourselves by separation, others by wearing masks, and self and family and friends by not making statements or allowing warrantless liberty infringements. Be safe. From bugs. And from government.

I long for the day that the state courts come to understand that state law standards NEVER trump (!) inconsistent Federal constitutional standards. The most glaring problem there now is in bail - many of our courts thumb their noses at 8th Amendment rules in service to inconsistent state statutory standards, which is why the pretrial detention populations of our jails are unconstitutionally bloated. It might be a Constitution that we should be expounding, but right now it’s one the courts are ignoring.

There are ways and then there are ways.

I cannot emphasize enough, although the message too often gets lost in the heat of the moment, that if you are stopped or otherwise contacted by the police about criminal conduct, keep your mouth shut! It never, ever helps to talk to the cops when they are investigating a crime you might somehow be connected with. It NEVER helps. The cops are not your friends, pastors, social workers, advisers; they are there to put cases together, not to clear anyone of criminal accountability. Keep your mouths shut. And, no, you are not obligated to talk to the cops. They do not have a right to your comments, explanations, rationalizations, etc. You have a right not to talk to government; stand on that right.

The drunk driving exception to the Constitution and to other legal standards is expanding.

"Moreover, Hyatt's ahistorical literalism proves too much. There are many other constitutional doctrines that are not spelled out in the Constitution but are nevertheless implicit in its structure and supported by historical practice...." Yeah, such as popular sovereignty. The states are not sovereign, the people are, so the next time OUR government tries to invade our peace, it needs to be reminded that we, as sovereigns, are immune! The mind reels!

The state Chief Justice has occasionally implored the Bar to rave to the public about how great our judiciary is, how gifted and thoughtful and resourceful and selfless it is, and she asks why we are not doing so. I suggest that she visit some of our courthouses, without an entourage and bodyguards, and sit in the back of some of the courtrooms and see how rudely and arrogantly some of the judges deal with the public and counsel and witnesses and parties. She will have her answer. I would be happy to steer her to the most significant courts and judges. Very happy. Some judges are out and out punks. Would she do something about them? Does she really care? Does she really not know?

Interesting PBS program on "drugged driving." Don't forget that in California one can be convicted of impaired driving if the consumption of a legal substance [Kava!] has caused a provable effect. http://www.pbs.org/video/drugged-driving-pcc9tg/

Although there are many complaints about Trump out there, a significant legal scholar has complimentary comments about his pending judicial nominees: http://reason.com//the-judicial-nomination-train-keeps-roll

It seems as though, in search and seizure motions, trial courts are increasingly deferring to police conclusions, accepting them unless the defense proves otherwise. In other words , trial courts are giving appellate court-like deference to the police, instead of requiring the police/prosecution to prove their case against a presumption that liberty has been wrongfully invaded. I’ve done enough thousands of motions over 35 years to be able to authoritatively assert the existence of this evolved trend, one that turns the Constitution on end. The Bar must fight aggressively against this police-statistic reality lest statism dethrone constitutionalism.

We must continue to press for educating jurors about their full powers under the scheme envisioned by the Framers. https://www.kennedyforlaw.com/jury-nullification-it-is-not-