I feel OK simultaneously believing that Sullivan should not go to jail for smoking marijuana,

but that

the shitheels who decided to let him go because he was politically connected rather than because it was the right thing to do should.

Your discussion of forcing these cases to trial in order to encourage the prosecutor to drop them put me in mind of Tom Cruise's character in A Few Good Men. When we first meet him that's precisely what he's doing, and has built his short career in JAG on that precise tactic. His boats, in fact, is that he's won every case assigned without setting foot in a courtroom.

I don't know if that actually happens in that environment, but it makes much sense in civilian life. And military court martials are very disruptive to the command, since it has to provide from three to five officers for the board, officers who are not lawyers and who have primary duties that go to the back burner while the court martial is in process.

Suffice to say they are not popular in fleet commands - I sat on three boards during my time and they're a huge pain in the neck. Consequently they are probably much rarer than equivalent courts in the civilian world. Most relatively minor infractions are handled administratively, or through Article 15 hearings. Drug case, however, always go to a court martial unless the defendant waives it.

But given the seriousness with which the military takes drug use, I doubt that the Tom Cruise character would get as much slack as he does in the film. On the other hand, his other role as a Naval officer got much more slakc than any real world one would have, as well - I knew aviators who had their wings pulled without doing a quarter of the crap Maverick pulled.

Anyway, thanks for the insight. I would suggest, however, that any case, however minor, involving a high profile defendant assumes a political dimension. If esteemed amateur gynecologist Sullivan is high enough profile to move into the "political" category we should leave to normal people, who spend no more than fifteen minutes a day online. I realize my perceptions are skewed by my 'net usage.

Sullivan commented on his case Sep. 12:

"Here is an AP story. And a story in the Globe. Readers well know that I have never failed to address even personal matters on this blog, which is why I hope you understand that it's clear and binding legal advice that prevents me from commenting. I'm sorry about this, it's frustrating for me, but I hope readers understand."

To paraphrase:

"On the advice of my attorneys, I must remain the cowardly asshole I've always been. To be caught in such a tiny peccadillo just when my services are most needed to help shepherd in universal bondage, I mean health care, in my adopted home, well...it's most frustrating. I hope, and pray that my readers will understand since duplicity has been my trademark and yellow my favourite color (for several reasons)."

Miranda rights are triggeered by a stop, when the police say you are not free to go. talking to a cop does not trigger Miranda. There is no evidence that AS was subject to a stop. He seemed to believe his actions wee legal and freely talked to the cop. He could have refused to talk or walked away. If the cop said "wait" then Miranda would apply. Now I don;t have a full report but simply talking to a cop does not trigger miranda, and as a n educational freebe for you all - never voluntarily talk to a cop. I may have violated a dozen statues in this post and the blog owner certainly violated many federal statues (the book of them is tens of thousands of pages) do never talk to a cop. If the cop wants to talk to you, ask politely if you may refuse. If the answer is no ask for a lawyer. Andrew free, and so would you be.

As a matter of fact, I "booked" criminal procedure at a top ten law school and I can boil down my $150,000 education into a sentence or two. No horrible criminal, child murderer or monster, got his just deserves under normal criminal procedure without a confession. Maybe one or two but it is as rare as hens teeth. So, if you refuse to confess, talk or help the opposition in every way you are legally entitled, the chances of you being convicted are slim to none. Always refuse to talk. If it gets ugly, ask if you are free to go. If the answer is "no", ask for a lawyer. You will be surprised how much better you are treated when you have a lawyer - for one thing they can never contact you outside your lawyer shield ever again.

Eric:

If the cop smelled dope, he had PC. No ifs ands ors or buts. No court will accept that a cop's nose is inadequate to establish PC.

The cop can ask any damn thing he wants. Particularly if he's not putting Sullivan under arrest, the cop has total freedom to ask questions.

If the criminal answers, that's on his head. He needn't be Mirandized to be asked a question. If he's arrested, then Miranda applied. But Miranda is only good if the answer is going to be used in court. As Sullivan surrendered a second joint, the cop has the evidence and doesn't need the testimony.

Search & seizure? The cop sees and recognizes contraband in a public venue. He seizes it with no problem at all.

Chain of custody might have traction, if it's a really dumb cop who didn't turn it in. But even here, Sullivan is up on a complaint. He already acknowledges the truth of the charge. The prosecutor would be unlikely to put the joint into evidence in the first place. He can rely on Sullivan's statement and that of the cop. His defense attorney isn't going to try to blow smoke on this.

Good law or bad law, Sullivan broke it. Breaking the law should have some consequence. As it is, Sullivan seems to have evaded even the fine.

Whether it will (or should) have bearing on his immigration status is another question. That will be handled under a far slipperier set of laws in an entirely different kind of court. He might not dodge that particular bullet.

Of course if you are innocent of any crime . . .

I'm attempting to spot possible issues here that might have been disputed by Sullivan's attorneys, not settling them or arguing Sullivan's side. They're moot now anyway.

But again, how do we know that at the outset, the cop saw and recognized contraband? What he saw was a cigarette, and we do not know the distance between him and Sullivan at the time, or whether he smelled marijuana before approaching Sullivan.

Breaking the law should have some consequence.

Certainly, breaking any law can have consequences. But I don't agree that people "should" face criminal punishment in the case of unjust or unconstitutional laws.

In any case, it's also relevant whether Sullivan break the law knowingly, as it raises a mens rea issue.

All that aside, there's no question that Sullivan was very stupid to talk to the officer and consent to the search.

1. Sales to minors?

2. Product liability (pregnant mom)?

comments

Kent, I'm having trouble following that.

I read the links about law enforcement in Detroit with some interest. Given that the Detroit PD can't solve murders and won't solve theft or burglaries; what do they do? Do they still expend resources shaking down prostitutes and drug dealers? Are they still writing traffic tickets?

Eric: I guess I'm just a sheep, but if it's the law, it has to be followed, not appreciated, loved, or thought sane.

If a jury wants to nullify, that's up to them.

But if a law is stupid, then get it changed. Until it's changed, it's still a violation to break it.

John, you have a principled position and you may be right (and I may be wrong) but I would never think of you as a sheep!

I appreciate your comment, but I cannot advocate enforcing laws against drugs, any more than I could advocate enforcing Jim Crow or sodomy laws.

Eric, I would argue that if you're in a position where you're obligated to enforce laws, and you cannot in good conscience do so, then in good conscience you need to relinquish that position and work to overturn the laws.

Granted, prosecutors have to evaluate cases and determine which they will prosecute for many tactical reasons (as you noted yourself) but I think a principled opposition to a specific law or class of law obligates one to step out. In the same way that a prospective juror must be capable of considering the full range of penalties attached to a crime, so that one absolutely opposed to the death penalty, for example, must be disqualified from a capital case.

I suppose one might think it's more moral to enter the system and attempt sabotage, but to me that's a violation of public trust. Further, such positions usually involve taking an oath, and I am very uncomfortable with breaking an oath. Of course, if everyone were, that would eliminate nearly all disputes in contract law... and an entire category of lawyers out of work.

How to hire a criminal defense lawyer:

http://www.scribd.com/doc/6123526/The-Truth-About-Hiring-a-Criminal-Defense-Lawyer