Lets add provision to Miranda warning

[CARLHAYDEN]

Most of you know that when arresting a person for a serious criminal offense, law enforcement must tell the arrested of his rights pursuant to the Miranda case.

It seems to me that considering the volume of serious crime committed by aliens and the international obligations, that every arrested for a serious crime should as part of the Miranda warning be advised that if an alien, he/she has the right to speak with a representative of his government.

Those who request to speak with a representative (typically consular officer) should have their legal status checked, and those not legally present in this country should be subject to deportation.

Those who do not request to have such a representative present will have been considered to have waived their right with respect to appeals.

[CARLHAYDEN]

Most of you know that when arresting a person for a serious criminal offense, law enforcement must tell the arrested of his rights pursuant to the Miranda case.

It seems to me that considering the volume of serious crime committed by aliens and the international obligations, that every arrested for a serious crime should as part of the Miranda warning be advised that if an alien, he/she has the right to speak with a representative of his government.

Those who request to speak with a representative (typically consular officer) should have their legal status checked, and those not legally present in this country should be subject to deportation.

Those who do not request to have such a representative present will have been considered to have waived their right with respect to appeals.

First, I've yet to see that "volume."

Second, as far as I know, police can check the alien status of anyone arrested, whether or not they make the request.

Third, why are you so worried about abridging due process?  You are basically setting up a situation where the police can just deport anyone, without any appeals.  What it the police simply make a mistake?

JJ,

First, I am well aware that you are blind to things you do not want to see.

Second, there are a number of cases were defendants who are foreign nationals whohave appealed to the World Court where they were not apprised of their right (under international treaty) to consult  with a consular representative of the country of which they are a citizen.  Now, if the United States does not adhere to international law in this context, we can expect other nations to arrest, try and convict American citizens without allowing them to speak with American consular officials.

Third, I don't know what you are imbibing, but there was absolutely no statement or even implication pm my part that "You are basically setting up a situation where the police can just deport anyone, without any appeals."

[CARLHAYDEN]

Stranger,

Please review Article VI of the Constitution of the United States with respect to the force (supremacy) of treaties.

Then review Article 36 of the Vienna Convention which was ratified by the United States on Nobemver 29, 1969.

[CARLHAYDEN]

First, please check the Avena case, decided by the International Court of Justice on March 31, 2004.

Second, illegal aliens have devised a method of avoiding deportation by concocting police brutality stories under the supervision of Mexican Consuls.

Third, aliens are seeking to have sentences overturned based on failure to be advised of right to consult Consul.

[CARLHAYDEN]

First JJ, I understand that when you have no cogent argument to make, you engage in name calling.  This is very childish of you/

Second, I would like to see the Uniform Crime Reports include a category for persons arrested for commission of murder or nonnegligent manslaughter by status (citizen, legal aliens, illegal alien).  Unfortunately at this time the FBI does not provide this data.  Would you like to have this categorization included in the UCR?

Third, you really need to reread my original post as you seem to have completely misunderstood it.  As I noted, persons arrested for serious crimes would be provided with the enhanced Miranda warning.  The scenario you alledged is completely and totally bogus.  There was NO abridgement suggested in my post!

[CARLHAYDEN]

First JJ, I understand that when you have no cogent argument to make, you engage in name calling.  This is very childish of you/

Second, I would like to see the Uniform Crime Reports include a category for persons arrested for commission of murder or nonnegligent manslaughter by status (citizen, legal aliens, illegal alien).  Unfortunately at this time the FBI does not provide this data.  Would you like to have this categorization included in the UCR?

No, an accurate description of a xenophobe.

Now, I have, using your "logic" a much stronger group of criminals, people involved in the country music business.  I just read about the father of Cheri Otari being murdered by country song writer. 

http://www.people.com/people/article/0,,20195882,00.html?xid=rss-topheadlines

Now, obviously we have people like Merle Haggard, Gary US Bonds, Mindy McCready, Weylan Jennings, Willie Nelson, and, of course Johnny Cash, and his stepdaughter Carlene Carter.

Obviously me much stop this cadre of country criminals, these homicidal honkytonk hillbillies!  Oh, I forgot, there white and speak English.

You must be logged in to read this quote.

The fact that they are currently illegal, might change after adjudication.  You would deny that possibility.

Yes, JJ engages in ad hominen arguments rather than deals with facts or logic.

Oh, and once again, aliens illegally present in this country would not lose any rights to adjucication under my proposal.

Oh, and I note for the record, you ignored my proposal that the FBI include the categories I cited.  Guess you don't want to deal with data either.

[CARLHAYDEN]

JJ,

You have yet to cite any fallacy in my posts.

You have however engaged in extensive name calling (ad hominem attacks).

You have also declined to answer my challenge on UCR statistics.

[CARLHAYDEN]

Yes, JJ engages in ad hominen arguments rather than deals with facts or logic.

You don't post facts; you post your own, opinion, and try to pass it off as a fact.  That you engage in an ad hominem, by claiming that I "blind to things you do not want to see." 

So, we see the start of KKKarlHayden's ad hominem.

You must be logged in to read this quote.

You don't seem to understand that someone may enter the country illegally, and still be legally entitled to legal status.  You proposal would prevent that.

You must be logged in to read this quote.

No, I don't have an objection, but I'm not the director of the FBI, so there is very little that I can do about it.

First, as to facts, I suggest you read the Avena case.  Or are you suggesting that I made that up?

Second, nothing in my proposal would prevent aliens in this country from appealing their status.  You have yet to cite any basis for your opinion that my proposal would have this effect.

[CARLHAYDEN]

You totally misconstrued what I said by taking it out of context!

The "right" which would be "lost" would be the right to consult with a consul of their country, which they would lose only if they declined the offer to consult with that entity.

Its sort of like offering a person a chance to speak with an attorney, and when they decline, they can be questioned.

Do you really not understand this, or are you playing dumb?

[CARLHAYDEN]

You really need to review Miranda.

Competent law enforcement agencies prior to the Miranda decision were aware that if a person arrested for a serious offense requested to speak with an attorney prior to questioning could not be legally denied that right.  However, the Court made it clear that such persons needed to be advised of that right.

If, upon being advised of the right to speak with an attorney or consul the person elects (informed consent) not to speak with either, then he/she cannot latter appeal a conviction based on being denied that right.

Now, an alien can appeal a deportation under my proposal.  Hence, there is no "erosion" of rights.

Now, you change definitions, when I note that a person cannot legally be questioned if they have requested to speak with an attorney (a prohibition on law enforcement) but they are not required to answer such questioning (a completly different matter).

Nice try to change definitions.

[CARLHAYDEN]

You presumed that I was saying would be subject to immediate deportation, which I did NOT say.

However, they would be subject to deportation (with the right to appeal) now, just as they would under my proposal.

The difference is that they could not credibly allege lack of knowledge of their right to consult with counsul and the police would be obligated to advise them of their right, and check legal status if they requested to speak with consul (pun intended).

[CARLHAYDEN]

Again, there are two benefits.

First, aliens (whether legally or illegally in this country) could not contest conviction for a serious crime based on inability to consult with counsul.

Second, contrary to your "knowledge" many law enforcement agencies have been told not to ask concerning legality of residence. 

[CARLHAYDEN]

First, I cited the Avena case. 

Second, the Mayors of a number of cities have instructed their police forces to NOT ask about legal residency status.


Here's a url which provides a brief explanation of the sanctuary city approach:

http://www.ojjpac.org/sanctuary.asp

[CARLHAYDEN]

First, I cited the Avena case. 

Second, the Mayors of a number of cities have instructed their police forces to NOT ask about legal residency status.

Please provide a link to the "Avena case."

Second, police can and do decline to enforce various laws.  That has nothing to do with your premise, because they can do that with or without a warning.  (Numerous marijuana laws are good examples.)

First, I'm sorry you had so much trouble finding the decision of the International Court of Justice in Avena.  Here is the url:

http://www.icj-cij.org/docket/index.php?p1=3&p2=3&k=18&case=128&code=mus&p3=5&PHPSESSID=64670f39301279f5103f22c3984dabac

Second, you apparently did not understand the source I cited.  Police are often prohibited by local authorities (Mayors, City Councils, etc.) so it is not the case of police electing on their own to not enforce certain laws, but rather often being prohibited from enforcing those laws.

[CARLHAYDEN]

Most of you know that when arresting a person for a serious criminal offense, law enforcement must tell the arrested of his rights pursuant to the Miranda case.

It seems to me that considering the volume of serious crime committed by aliens and the international obligations, that every arrested for a serious crime should as part of the Miranda warning be advised that if an alien, he/she has the right to speak with a representative of his government.

Those who request to speak with a representative (typically consular officer) should have their legal status checked, and those not legally present in this country should be subject to deportation.

Those who do not request to have such a representative present will have been considered to have waived their right with respect to appeals.

First, I've yet to see that "volume."

Well, Sen. Spector apparently sees an "enomerous problem."  Maybe he doesn't have his eyes shut.

http://www.azstarnet.com/allheadlines/237364.php

[CARLHAYDEN]

Do you really fail to grasp the concepts presented?

First, if Avena had been advised of his right to consult with consul and declined, then he would not have been able to appeal on denial of consul.  Since he was not advised of that right, he was able to appeal to the International Court of Justice.  So, having the warning is not "moot."

Second, as a practical matter, its hard to see many mayors/councils telling their police forces not to provide the Avena warning, and just about as hard to order police forces to not check the legal status of a person who advises them by seeking consul representation.

[CARLHAYDEN]

You still don't understand.

If Avena had been notified of his right to consult with consul and declined to exercise that right he would not have been denied that right.

Also, you fail to comprehend that while a local authority (Mayor, Council, etc.) can instruct the police to not ask about citizenship/legal residency, if the person arrested for a serious crime requests to speak with consul, they he has admitted he/she is not an American citizen, and it will be rather difficult to tell the police not to determine legal residency by checking with the Feds.

[CARLHAYDEN]

You still don't understand.

If Avena had been notified of his right to consult with consul and declined to exercise that right he would not have been denied that right.

The right to consult exists in treaty.  A law cannot abrogate that treaty.  What part of that don't you understand?

You must be logged in to read this quote.

Whether or not they admit it still doesn't mean that law enforcement will enforce it.   An illegal alien, in those localities (and I guess there are some out there) can walk up to police officer and say, "I'm an illegal alien."  If that locality chooses not to enforce it, it won't make a difference.

\

The proposal does NOT abrogate the treaty, but rather guarantees that the person arrested has the ability to consult with consul.  They do not have to consult with consul if they don't want to do so.  However, if they are not advised of the right, and do not themselves demand it (being ignorant of the right), then they have grounds for appeal.  However, if they are aware of the right, and decline to exercise it, then failure to consult with consul is not the fault of the entity prosecuting!

Now, as a practicality, there is a difference between "don't ask" and "don't act on volunteered information."  Sorry you cann't understand the difference.

[CARLHAYDEN]

I don't know whether you are unable to understand or are simply deliberately misrepresenting what I have posted.

The warning I would add to Miranda would assure that a defendant could not plead that he was not givern his rights under international law to consult with consul.

Second, do you understand the existing 'don't ask, don't tell' policy in the military?  Well, in many cities, the same policy is applied to illegal aliens.  While a Mayor or Council might well pressure the police to not ask the legality of residency of a suspect (particularly for minor offenses), it an arrestee for a serious offense tacitly admits to not being an American citizen by requesting to consult with a consular representative, then most Mayors/Councils would be highly reluctant to instruct the police to not check on legal residency.

[CARLHAYDEN]

Lets see.

If a person isn't told of his/her right to consult consul, and does not request such a right (being ignorant of it) then there is a basis for appeal on failure to enforce that right.

However, if a person is advised of the right and declines to exercise it, then if the person asserts they were denied the right as part of an appeal, the notice would contradict that assertion.

Do you really have difficulty understanding this?

[CARLHAYDEN]

You really have a difficulty understanding rather basic legal principles.

First, if a person is advised of their right, and declines to exercise it, they are not being denied that right.

Are you suggesting that a person cannot decline to exercise the right to consult with consul?

Second, as I pointed out earlier, the advice would apply in the case of serious crimes, as when the Miranda warning would be required.

You really do have some problems understanding basic legal principles.

[CARLHAYDEN]

You really have a difficulty understanding rather basic legal principles.

First, if a person is advised of their right, and declines to exercise it, they are not being denied that right.

Are you suggesting that a person cannot decline to exercise the right to consult with consul?

Under the treaty, the right appears to be ongoing and there also seems to be a requirement that the government doing the arresting must inform the consular officers.  In the second case, the alien could not waive that right, because it is a requirement based on the government.

You must be logged in to read this quote.

I'm not clear that, under treaty, this applies to "serious crimes."  In US v. Mexico, it was applied only to death penalty judgments; it was actually withdrawn when three death sentences were commuted in IL.

You must be logged in to read this quote.

I'm afraid you have let you xenophobia cloud both your understanding of the law and your abilitity to comprehend English.  The latter might be a sign of illegal immigrant status.

Sorry, but a arrestee cannot be compelled to consult with counsul.

However, he/she has the right (if they so choose) to consult with consul.

My proposal makes sure they are advised of the right.

There is no denial of the right if they choose not to consult with counsul.

You are the one who is unable to understand English.

As to the "serious crimes," it would be the same standard as for Miranda.