07/06/10 – Sunita Patel – The Scott Horton Show

All right, y'all, welcome to show anti-war radio chaos.
Nope, not chaos.
LRN.
FM.
So used to saying that.
And it should be on chaos right now, but I'm having unknown technical difficulties.
Let's go ahead and go to our first guest.
Her name is Sunita Patel.
She's from the Center for Constitutional Rights.
Welcome to the show.
How are you doing?
Hi, I'm doing good.
Nice to be on the show.
Well, I appreciate you joining us here.
Now, my friend Michael called me last week and he really had a grand idea, which was how do we get people to teach classes like this at junior college where not necessarily for degree or anything, but where anybody can come for a semester and get a really good education on what their rights are.
Think back to old Thomas Jefferson, and he was one of the first advocates of public schooling in the country.
And he thought that the purpose of the public schools would be to teach the people what their liberties are, so that that way they would always jealously guard them and so forth.
And yet I kind of get the idea that most people really don't even know what rights are, never mind philosophically as far as natural rights and civil rights and these kinds of things.
But they don't even know what they're entitled to when it comes to dealing with the state or the process that they can get in.
And I'll just go back to when I was a little kid on TV, they always said you have the right to remain silent, et cetera, et cetera.
Do you understand these rights?
And as I was a little kid, I remember thinking that I would have answered yes because I thought I did, but I really didn't.
And I thought what they were saying was, shut up, I'll tell you when to say something or something like that.
I didn't really understand.
I don't know what age it was when I finally figured out what they were talking about, but I could see how people could kind of have sort of a half understanding and think that they're good.
And then I thought, well, I don't know about setting up college classes, but I do know that I could get somebody for the Center for Constitutional Rights on the show from the Center for Constitutional Rights on the show to kind of help us with this.
Take people through maybe kind of a 101 in the Bill of Rights and of course, Miranda and court decisions enforcing the Bill of Rights on the states and the different processes that people are guaranteed to protect themselves against the cops who, after all, are out to get us.
Well, yeah, well, that sounds great.
I mean, let me just start by saying, you know, my name is Anita Patel and I'm a staff attorney at the Center for Constitutional Rights, and we definitely support Know Your Rights and other types of efforts for popular education and public education around the Fourth Amendment, protection against unlawful search and seizure.
And I think that that's mostly what you're talking about here.
And just to let your listeners know, there's several programs that different community organizations operate throughout the country.
MXGM coordinates a program called Cop Watch, where they go out and they actually tape police officers stopping and searching and arresting people in poor neighborhoods so that there's a record of what the cops are actually doing.
There's also something called street law that a lot of law schools operate in communities and at juvenile detention centers so that youth can learn their rights and know their rights around their interaction.
And now what's that one called again?
Street law.
Street law.
So if you're a young person in the law, especially if you're a law student or if you're not a law student, you want to get hooked up with street law, you just try to check out your local law school and find out if they have a street law program.
Right.
And as you say, that's that's great information, and I hope we'll both remember to mention that again later in the show.
But yeah, as you say, we do probably want to deal mostly with the Fourth and then I'm thinking the Fifth and the Sixth Amendments, too.
But well, of course, for example, the right to remain silent, that's the court's application of or that Miranda warning about the right to remain silent is the court's application of the Fifth Amendment protection against self-incrimination, right?
Yeah.
I mean, what what people need to know about, you know, when you get stopped by the police, the first when there is enough probable cause for them to actually arrest you, the police are supposed to Mirandize you.
And that is exactly what you're saying.
The right to remain silent, anything you use, anything you say can and will be used against you in a court of law.
The most important thing to remember is that you don't have to answer any of their questions, investigatory questions without the presence of an attorney.
And in most states, various state by state, but in most states, if you say, I have a criminal lawyer, I want to speak to my criminal lawyer, I'm not going to answer any more of your questions.
They will stop questioning you and they or they should stop questioning you in anything that you say.
After that point, there are ways for your criminal defense attorney to throw those statements out.
The thing to remember also is that if you do start speaking and answering questions and then at a certain point you start to get uncomfortable and you're thinking, why are they asking me these questions?
I don't want to answer these questions anymore at any time.
You can invoke that right.
And you can say, I don't want to answer any more questions without the presence of a lawyer.
You know, give me a lawyer.
And then the other thing to remember around Miranda is that you can also waive your Miranda right at any time.
So if they start asking you questions again and then you start speaking, then it could be interpreted that you're now waiving your right to remain silent.
So it's just important to remember not to answer any of the questions.
Just stay silent.
Try to stay calm even if they try to provoke you.
Right.
And see, this is the thing too, is they try to manipulate your time preference, right?
So you could be facing 30 years for a crime you didn't commit, but they try to make it where the pressure of being in a tiny little closet sized room with a bright light and two big fat stinky cops with bad breath in your face, that you will get to the point where you'll say anything just to get out of that room, including face a trial and major charges down the line.
That happens all the time.
I learned that in psych 101 that 30% of confessions are false just to get out of the interrogation room or something like that.
Yeah, I mean, the conditions that you're in are really horrible and sometimes the courts will take that into consideration when thinking about whether or not a confession is lawful or not.
It's much harder to retract one than to make one, though, isn't it?
Totally.
I mean, the best thing to do is just to stay silent.
I wanted to just back up a second to think about your initial interaction with a police officer in what is normally known as, you know, you're stopping a law enforcement stop.
So at the Center for Constitutional Rights, we filed a class action lawsuit against the New York Police Department and the city of New York to challenge their, what we are alleging is an unconstitutional racist stop and frisk practice.
This is something, a lawsuit that we've been litigating since January 2008.
And in that case, we say that the police are unconstitutionally stopping and frisking thousands of New York City residents every year.
And that means that under the legal standard, that they do not have what's called reasonable suspicion that a crime is about to occur.
Instead, we believe and we think that we'll be able to prove that cops are racist and are racially profiling black and Latinos in New York City.
So we filed this case with four individuals, but it's on behalf of every person in the city that's been illegally stopped and frisked by the New York Police Department.
Wow.
Yeah, that's great stuff.
And that's really, I guess we should have sort of started with that, the Center for Constitutional Rights.
I mean, that's what you guys are all about, right, is protecting the rights of people who otherwise don't have the resources, the literacy, et cetera, to defend themselves against the state.
That's right.
That's right.
And our work, you know, it varies, the domestic work we do.
We do a lot of international work and we've done a lot of work and on the forefront around the Guantanamo issue.
But our work in the United States often is driven by social movements and community organizations that come to us with problems that say, hey, this is something that we're facing.
We can't seem to get anybody to help us figure out a way to deal with this.
You know, is this something that we can litigate?
And you know, this case, for example, our police case came out of a history of police brutality and really terrible conduct that the NYPD was doing in the late 90s.
And there was an initial lawsuit and this is a second lawsuit to really try to force the police to be held accountable for the violations of constitutional rights that they're committing.
Now, so for the average person walking in New York, who's got to be the victim of this, I think there's the whole village voice thing came out.
But there was something else I read recently, too, just about how the incentive structure is supposed to keep the crime rate low.
But your number of of stop and harass people numbers high.
And so they play down all the actual crimes.
But then they just harass innocent people all the time, because that's how the structure at the NYPD mandates it.
I'm about to have a nervous breakdown.
My head really hurts.
And I know I'll find a way out of here.
I'm gonna go to jail cause I'm crazy.
All right, y'all, welcome back to the show.
It's Antiwar Radio.
I'm Scott Horton.
I'm talking with Sunita Patel from the Center for Constitutional Rights.
And she's talking about this lawsuit that they have because in New York, basically, it's a crime to be black or brown on the side of the road, and it'll get you pulled over in a heartbeat.
And so now I was trying to ask you there before I screwed up going out to break.
What's a Puerto Rican in New York to do when he's got to deal with NYPD all day like this?
Scott, so there's a couple of things you're mentioning that are have been in the news.
And, you know, I think at CCR we say quota-driven policing is just bad policing.
In any situation where you've got cops that are getting a lot of pressure from their higher ups to meet certain mandates and quotas, they're likely to violate people's constitutional rights because they're not actually looking at whether or not there's quote-unquote reasonable suspicion, which is required under the Constitution.
Instead, they're looking for low-hanging fruit, looking for the person who is walking down the street wearing baggy pants, hanging around on the corner, who they can just accuse of conducting unlawful activities.
So the question of what's a person supposed to do is a really important one, and it's actually very hard to answer given the fact that there have been these whistleblower cops that are saying that they're getting incredible pressure to just execute summons and stop people and fill out forms to get the numbers up.
So I think what I would say is, whatever happens, try to get the name and the shield number of the officer that stops you and fill out what's called a CCRB complaint, the Civilian Complaint Review Board, although it's been criticized by a lot of community members and even city council itself.
There is a lot of flaws with the way that the Civilian Complaint Review Board operates.
It is your way of documenting and making a record that you were unlawfully stopped and frisked.
At CCR, we also take people's stories and people's complaints, just because we're always trying to learn about what's happening in different parts of the city and what the cops are doing.
So you can contact us.
My email address is spatel at CCRjustice.org, and that's, of course, if you're in the New York area.
If you're not in the New York area, you should definitely try to find out if there's a civil rights organization or the ACLU in your area, whether they're taking police complaints against the police, to find out if you would have an actual complaint, whether it's civilian or a lawsuit that you could file.
It's definitely worth always trying to hold the police accountable.
I mean, I think in general, in terms of what your rights are, if there is reasonable suspicion that a crime is occurring or about to occur, then the police do have the right to stop you and ask you some questions.
When they ask you a few questions, if their suspicion is abated and they think there's no crime happening, they have to let you go.
If upon the inquiry, they decide that maybe there is something going on, they could ask you more questions.
If they have this reasonable suspicion to believe that there is a weapon, that you have a weapon and that they are in danger, then they can frisk you, but they can't frisk you if they don't think that you have a weapon or that you're not a danger to them.
That's another thing that we see a huge problem with in New York City, where cops will stop someone and just frisk them, and it's happening all over the country.
This is a way for the police to execute their state power over ordinary people.
I think that you have to be very careful what you say to the police and how you try to assert your rights, because they have guns and it is a dangerous situation often.
People of color and young people tell us that they are afraid of asserting their rights in certain situations.
I understand that, but the more information you have, the better equipped you are to respond to the situation and to the problem.
Then afterwards, if you can get the right information documented, you can file a complaint.
Even if your city doesn't have an official complaint process, you can file a complaint with a commanding officer, a lieutenant, a sergeant, or someone of a higher rank than the police officer that stopped you just by writing a letter to the police department and try to look up on the police department's website if there is a complaint process that you can utilize.
Now, I saw a speech by a lawyer one time.
He said, never talk to the police, ever.
That is not Dave, the human being standing there.
That is a uniform, a representative of the state, and you cannot talk him out of arresting you.
Maybe you can, but it's not worth trying to talk him out of arresting you, because whatever appointment you're going to miss tonight is not as important as what he can take what you say out of context and use against you.
This lawyer said, if you're walking down the street and the cop drives up and says, did you see a blue sedan?
Don't say anything.
If he says, were you just over on Pine Street?
Don't say anything.
Don't say a word to these people.
You don't know what they're up to.
You don't know if they're trying to pin the murder of a cop on some innocent guy, which for some reason the cops love to let the actual cop killers go free so they can blame innocent people for killing cops.
There's got to be 700 cases of that in just the last 50 years or something.
Just don't talk to them, period.
That's what he said.
What do you say to that?
Well, I think that if you can get away with not talking to him, then that is the best advice.
I think, unfortunately, most of the time people are going to feel like they have to say something, and especially in urban areas like New York City, where it's a lot of foot traffic.
It's not necessarily car stops.
It's a lot of people walking around.
The cops are just ...
NYPD is flooding people of color neighborhoods and poor communities with cops.
I mean, it's their number one strategy to try to address crime is just flooding the neighborhoods and stopping and frisking and issuing summons for folks just to get their numbers up.
All right.
Now, I think you detailed the exceptions there to the Fourth Amendment protections against searches.
That is, if they have probable cause to believe that there's a crime in progress, that kind of thing.
It's actually reasonable.
Just to clarify that, it's reasonable suspicion, which is a lower standard than probable cause.
Is that the same standard to enter your house, if they have a reasonable suspicion that there's a felony in progress there?
Well, entering your home is a little bit more complicated.
In general, they have to have a warrant.
Or a national security letter.
Right.
What you can do, what I advise people sometimes, especially non-citizens and immigrants that are finding police and ICE coming to their homes, if immigration officials are coming to your home, you say, I need to see it.
You look at it.
You examine it.
Make sure it's actually valid, that it's signed by a court, that a judge has executed it, that it has your name and address, that it's not the wrong name and address on it.
It should include, also, certain limitations around the scope of the warrant.
For example, if they are looking for stolen television sets, they can't look inside of a shoebox, because there's not going to be a television set inside of a shoebox.
It's helpful to look at it and see exactly what they're looking for.
If they don't have a warrant, there are certain situations where they are allowed to come into your home.
If there is certain beliefs of what's happening inside, if there's exigent circumstances, if there's some other danger that is in place.
For the most part, what you want to look for is, you want to just make sure that you know what they are looking for, so that you have that information.
Again, you don't have to answer any of their questions.
You don't have to say anything to them.
All right.
Now, can we go through, can I give you one more segment, go through the Fifth and the Sixth Amendments here a little bit?
Sure.
I feel like I don't know as much about the Fifth and the Sixth Amendments.
What about ...
I'll Google them up here.
We'll be right back after this break.
Sunita Patel, from the Center for Constitutional Rights, Antiwar Radio.
What's up next?
Visit the Liberty Radio Network program guide to find out at shows.lrn.fm, that's shows.lrn.fm.
All right, y'all, welcome back to the show, it's Antiwar Radio, lrn.fm and chaosradioaustin.org.
Apologies to the Chaos Radio audience, a little bit of technical difficulties.
Okay, a lot bit of technical difficulties for you guys today, and I can't even talk right either.
Anyway, all right, one more segment here, lucky me, with Sunita Patel, for the Center for Constitutional Rights, and we're just talking about how to deal with the cops, what you need to know about your rights, I mean, assuming they don't just haul you off as an unprivileged enemy belligerent, or put you on the death mark list, which is different.
All right, so now, Sunita, let's talk about the Fifth Amendment here.
It says here that they can't try you for, I guess, it says an infamous crime, I guess they mean a felony, unless on a presentment or indictment of a grand jury.
Tell people what's a grand jury.
I was reading, actually, the New York, was it, ABC News the other day, last week, when the Chicago cop was convicted of perjury for lying about being a torturer, and they said a grand jury today convicted the guy, because the people who write for ABC News don't even know what a grand jury is.
So, grand juries are supposed to be a jury of your peers, and they operate in a way to have a deliberative proceeding in the initial stage of a criminal offense, and so what they have to do is they're given instructions around the law by a judge, and they are required to look at some of that initial evidence, and determine whether there is enough there to do what's called indict a criminal defendant in a criminal case.
So, they look at a limited set of rules, they look at what the prosecutors say that they're going to be able to bring into court, and what the evidence is at that stage, and then they decide whether there should be an indictment.
There are constitutional restrictions that don't apply to grand jury proceedings.
So, for example, you can't argue that certain evidence shouldn't be used against you at that early stage.
You can't...
You don't necessarily have the right to have your attorney present in the grand jury room during the hearings.
Prosecutors can go in there without you even knowing what they're saying.
And all of this fits within the Fifth Amendment, which governs federal criminal prosecutions.
So, if you look at the Fourteenth Amendment, it also applies to states.
But what happens is that there's a separate preliminary hearing proceeding in different states.
So, most people who get arrested and get charged with crimes are getting charged and convicted under state proceedings, and so each state has their own set of preliminary hearing proceedings.
But the rules are generally the same.
And that's pretty much for all felony cases, right?
The structure here, what we're talking about is a set of laws that came up, were written a long time ago, back when people still cared about being free at all.
And so the cops and the prosecutors are different from each other.
And the prosecutor's not even allowed to bring a case to trial unless the grand jury says it's okay first.
That's right.
And that is for all felony cases, right?
Yeah.
I mean, there's also, under the Fifth Amendment, a right for anyone who's being charged with a crime to get a preliminary hearing.
So, even if it's a misdemeanor, and in some states, a lot of violations, even more serious traffic crimes will also require a preliminary hearing.
So, even if it's a misdemeanor drug charge, you have to get a preliminary hearing where a judge looks at the probable cause that the police had when they arrested you, and they determine whether or not it's valid or not.
And then they set a bond or a bail hearing at that, they either set a bond or a bail amount, or they set up a hearing in which you can present evidence in order to get a bond or bail to get out of jail.
Right.
And then, of course, I guess it's what the Seventh or, no, it's the Eighth Amendment, the cruel and unusual punishment amendment that bans excessive bail.
Although, apparently, they got rid of that.
Yeah.
So, now, just the whole principle of nobody can be deprived by the state of their life, liberty, or property without due process of law, it seems to be a principle I was kind of mentioning as an aside there, Barack Obama's death mark list of dozens of American citizens, according to his director of counterterrorism, and unprivileged enemy belligerent status, which is the new enemy combatant status where they can deprive people, they claim even American citizens of their rights.
But this Fifth Amendment is the law, right?
And this Fifth Amendment says, no, they can't do that without due process of law.
Not life, not liberty, or property.
That's right.
They shouldn't be able to, I mean, unfortunately, what you have is you have an administration which is following a lot of the Bush era policies and trying to take everything out of the court.
So, if you have military tribunals or other non-judicial court proceedings, then you can make up different sets of rules.
Right.
Yeah.
That's the fun game, right, is just make it a whole new process, and then these rules don't apply.
And yet, it seems to me, especially since these are amendments and not just part of Article 1 of the Constitution, you know, Article 1, Section 9, it has some restrictions in there about bills of attainder and other things like that.
But these are amendments, so these trump any power supposedly delegated to the national government in any of the previous articles.
And it says here that in all criminal, all, not whichever ones they feel like, in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
Boy, it sounds like just a list of things that the last two administrations have been at war to try to overturn, huh?
Yeah, they've certainly been chipping away at it.
I mean, and the Supreme Court has been eviscerating much of the Fourth Amendment, especially, but also the Fifth Amendment.
We're really in danger of losing many of our essential protections against due process and liberty, which is why it's very important to have shows like this where you're educating the public about what folks' rights are, and also for people who get arrested to fight their cases in court and really take a stance against unconstitutional practices.
Yeah, it also seems to me as I breeze through this thing here that torture is banned twice here.
It's banned really in the Eighth Amendment and in the Fifth.
Like we were talking about that whole very small room with a hot light and bad breath cops trying to get you to change your time preference and go ahead and tell them whatever as long as you can get out of the room.
That's really the principle of torture, only no-touch torture, I guess, but in a sense it's the same thing, trying to get you to change your time preference where you'll go ahead and comply immediately now with whatever it is that's demanded of you.
That's one of the reasons, isn't it, that no one shall be compelled in any criminal case to be a witness against himself in the Fifth Amendment, right?
Right.
One of the most sacred things that we learn as lawyers doing criminal defense is that it is up to your client whether they want to testify or not and to just make that decision of whether or not to subject themselves to self-incrimination through cross-examination.
The idea of pleading the Fifth, I think, has become a big law and order kind of stunt.
Right.
Well, and people are always afraid that it makes them seem like they're guilty or else why wouldn't they get up there, right?
That's right.
That's right.
Yeah.
All right.
Well, I don't know.
I kind of have a dream of a day when the law applies to the government the same way they apply it to us regular people all the time, and I guess I know it'll never really be that way, but that is sort of the fun part of this for me is pointing out that that is supposedly the theory of the rule of law is that even the president is merely a citizen like the rest of us.
He's nobody special at all.
He's just the temporarily elected administrator of executive departments.
He's not our leader.
He's not our commander.
He's not nothing.
And that's what it means to be an American is to assent to those kind of principles, right?
Fair trials, presidents not as bosses, but as servants, et cetera.
That's the legacy we're giving up here.
So I like to focus on at least what it used to be, what people used to believe it was anyway.
That's right.
We need to keep fighting for justice.
Right on.
Well, thank you so much for fighting for justice and for your time on the show today.
Okay.
Thank you.
Everybody.
That is Sunita Patel.
She's a lawyer with the Center for Constitutional Rights.