Criminal

5th Fifth Amendment Part 1

Let’s talk about the 5th amendment. We talk about this every year but these, some of these are so good, they’re nuggets. We’re going to rethread old ground. And Shatzer, Justice Scalia holds for the majority 5/4 as usual, that a prison inmate is not in custody for Brenda purposes. Prison inmates are not in custody. Why? Well, because it’s his home, he lives in prison. Now we need to take some of these folks and let them see what prison life is like. If that’s not coercive, if you can eat, shit, sleep, watch TV without permission. It’s the most coercive other than Ariel Castro’s flacing I can’t imagine a more coercive, sorry! I can’t imagine a more coercive atmosphere than being a prison inmate. And one has to wonder, if the prison cell is their home for 5th amendment purposes, how come it’s not their home for 4th amendment? Right! No no no, you can’t shake down my cell, this is my castle, this is my home. Can you imagine us… Sometimes we ought to be turning some of these issues on their head. In Berghuis versus Thomkins, this time another 5/4 often a swing vote justice Kennedy writing for the majority said, “You got to speak up to remain silent” that’s right. This poor sucker is dead silent for 3 fucking hours. Alright 3 hours and they don’t get the hint. What happened to the presumption that one need not speak up to remain silent. This is an interesting analogy remember the, this is corporate constitutional rights which I said business, trumps even the government.

Citizens united! Remember this is the McCain Finegold bill that dealt with campaign financing in the movie Hilary and the court was and it prohibited corporate campaign contribution of that like, and the issue was whether or not the 4th amendment protected these corporate contributions. And again, another 5/4 decision, again the swing vote writes the majority opinion Kennedy and he finds that corporations have a right to free speech. We know what that means; money talks! But also in that 5/4 decisions, how about this, if corporation have a first 1st amendment right to speak, how come they don’t have a 5th amendment right to remain silent. Look at Braswell. I mean the reason corporations have no 5th amendment to remain silent is if they can’t speak! Turning it on its head again! What constitutes custody?

In this case 40 to 50 fully armored officers in armored vehicles break through these surrounding gates. They set up concussive devices all over the grounds to scare the shit out of the occupants. they then take grappling hooks with big recors and yanked the front door and all the burglar bars of all the windows and they have my client naked from the waist down at gun point when they questioned the 5th circuit in a 2 to 1 opinion found that he was not in custody for 5th amendment purposes. That’s my client’s bare butt there! You can barely see the gun the officer has over his head while he’s questioning him. And unfortunately that’s both his wife and his girlfriend. It was a bad day for Mr. Fike.

With him lying in the driveway. Never mind the guns, the tanks, the explosives; where the guy with no pants going to go? His freedom of movement was restricted in my eyes. Just last week, if you think you’ve seen it all the court criminal appeal on June 6th, held that and this is a judge explaining to a, giving instruction to a jury. Initial instruction on a defendant’s constitutional right on the 5th amendment to remain silent. This is the instruction,” Praise God I haven’t been charged with a crime if I were, then I would probably want to get up and tell my side… that’s just me”

No reversible error! Because the judge in saying that was just trying to protect the rights of the accused! So much for the 5th amendment, in the state of Texas. Ok, let’s go on to the 4th amendment. I can do this in 2 hours Betty so don’t worry!

Francisco Hernandez

Author Francisco Hernandez

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