Lets add provision to Miranda warning

[J. J.]

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

No right to appeal removes the ability.  Someone can waive there ability or right to speak with his consul, just as someone arrested can waive their right to have an attorney.

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An alien's right to appeal a deportation would make an erosion of rights, as indicated.  I frankly have no problem with an alien being able to consult consul from his country, prior to deportation.

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I should point out that the person still wouldn't have to answer, even if they decline an attorney. 

Gee, someone this unclear on rights of citizens may not be one.  Perhaps you should report yourself.

[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.

[J. J.]

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

Let's see:

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.

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I'm not changing the definition, just looking at your "proposal."  Yes they can appeal, no they can't appeal.  It is perhaps a prime reason xenophobes shouldn't make immigration laws. 

[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).

[J. J.]

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

No, I'm stating that said you have said, "without appeal," which you did.

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First, as far as I know, the police can check the immigration status of anyone they arrest; presumably, if you were arrested, they could check your status.  Second, there is a right to one phone call, which could include a call to consul.  Likewise, the attorney may contact consul.

I really don't see any use to this proposal.

[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. 

[J. J.]

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.

Can they do that now, or is that included in the general right to have an attorney.

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Oh, who told them?  Is this a administrative matter or a legal one?

[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

[J. J.]

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.)

[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

[J. J.]

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

OK, the right is established by treaty, so any appeal would also be covered by the treaty, so the warning is moot.

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And,  the warning has no effect on what is an administrative decision, which is what I'm describing.

In other words, it's a pretty lame idea, but we all knew that.

[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.

[J. J.]

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."

Wrong, the treaty gives him the right, so even if he was informed, and declined, the right within in the treaty still exists.  The warning would be moot, for even if initially declined, he'd still have the right.

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As a practical matter, if a local authority says, "Don't worry about aliens," it has nothing to do with a right to consul.  It either has to do with the ideology of the local authority or the low priority of the authority gives to aliens (probably because they really create few problems).

[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.

[J. J.]

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?

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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.

[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?

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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.

[J. J.]

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. 

The right to consult exists by treaty, so they can be no other guarantee.

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The ruling basically says that, at some point, via treaty, before the US puts a Mexican citizen to death, the alien must be informed by the government of the right consul contact, and inform the consul.  Now at the time of arrest, apparently in capital cases, police can check alien status, and inform consul.  The treaty puts the onus on the police.  Thery can check and follow through

This included 49 cases which were death penalty cases (that great mass of pleople, 49 out a prison population of roughly 2 million).

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You are again confusing having police the authority to do something and declining to use that authority.

[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.

[J. J.]

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.

It doesn't make any difference.  Because this is a function of a treaty, a warning will not make a difference.

Further, looking at the case citing, it involves only people with the death penalty (initially 53 nationally).  I'm not clear that it involves all felons.

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Those that object now will still object if a warning provision is included. 

[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?

[J. J.]

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?

You see to have a difficulty understanding that the right exists, even if the person declines to use it, by treaty.  The state has a treaty obligation to inform the representative of the alien's government.  A law does not change that.

I also have to ask if the right is for all felons or only in capital cases, which probably has less than 100 people nationwide. (All the case in US v. Mexico were death penalty cases.)

What parts of this do have problem comprehending?

[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.

[J. J.]

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.

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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.

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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.

[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.

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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.

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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.