Sheridan: Con-Law

THE POWER TO INVESTIGATE IS THE POWER TO DESTROY

This email exchange, in which I reply to a query from a distinguished and learned professor, below, from the Conlawprofs:

    From:       [email protected]
    Subject:     Re: First Amendment and investigations
    Date:     October 9, 2007 12:12:54 AM PDT

A true investigation, as opposed to case-building, which uses the 
same techniques but has a different intent, is an intellectual 
exercise, first, a seeking of something deemed to be relevant to 
support a theory.  The conduct of investigations is one of the most 
heavily regulated areas of the criminal law.  See the Fourth 
Amendment rules on search warrants, the requirement of 
reasonableness, probable cause, etc.

Something about E's focus on words used as evidence gave me 
pause and prompted me to check the Calif. Penal Code to see what it 
said about searching for evidence as opposed to instrumentalities, 
for example, used to commit crimes.  Here's the list (PC 1524):

(a) A search warrant may be issued upon any of the following grounds:

1.    When the property was stolen or embezzled;

2.    When the property or things were used as a means of committing a 
felony;

3.    When the property or things are in the possession of any person 
with the intent of using them to commit any public offense, or in the 
possession of another to whom he or she may have delivered them for 
the purpose of concealing them or preventing them from being discovered'

4.    When the property or things to be seized consist of any item or 
constitute any evidence that tends to show a felony has been 
committed, or tends to show that a particular person has committed a 
felony..

5.     When the property or things to be seized consist of evidence that 
tends to show that sexual exploitation of a child in violation of 
Sec. 311.3 [a list of exploitive conduct], or possession of matter 
depicting sexual conduct of a person under the age of 18 years, in 
violation of Sec. 311.11, has occurred or is occurring.

6.      When there is a warrant to arrest a person.

7.    When a provider of an electronic communication service or remote 
computing service has records or evidence, as specified in 1524.3, 
showing that property was stolen or embezzled constituting a 
misdemeanor, or that property or things are in the possession of any 
person with the intent to use them as a means of committing a public 
offense, or in the possession of another to whom he or she may have 
delivered them for the purpose of concealing them or preventing their 
discovery

(b) [Provides that the property or things or person(s) described in 
(a) may be taken on the warrant from any place or from any person in 
whose possession the property or things may be.

(c)    Notwithstanding (a) or (b), no search warrant shall issue for any 
documentary evidence in the possession of [a lawyer as defined, etc., 
a physician, a psychotherapist, or a clergyman who is not reasonably 
suspected of engaging or having engaged in criminal activity related 
to the documentary evidence for which a warrant is requested unless 
the following procedure has been complied with:

[here there is a requirement that the issuing court appoint a special 
master who will accompany the officers who serve the warrant; if the 
subject of the warrant states that "an item or items should not be 
disclosed," the special master takes control of the items pending a 
special hearing...etc., etc.]

Investigations beyond the issuance and execution of search warrants 
can be used to harass.  The Kenneth Starr investigation of Clinton 
and the Whitewater investigation were seen by many as being abusive, 
leading to the elimination of Starr's office eventually.

So it is not surprising, although it is rare, to see a court control 
or shut down an investigation for policy reasons such as in Conant v. 
Walters by enjoining it from proceeding.

To say that since "speech can be used as evidence at trial" in 
support of the idea that therefore a doctor's words to a patient are 
fair game to be obtained as evidence by some means (bugging the 
office?  running in undercover patients?) seems to be worse medicine 
than any sniffle it is meant to cure.  We're going to make doctors 
offices battlegrounds for the law courts in order to insure that they 
don't advocate (see Brandenburg) smoking medicinal marijuana to 
alleviate suffering and increase appetite in cancer patients?  In the 
name of supporting the all-powerful state?  Such a state ought to be 
overthrown.  It seems to me that we did this once when searchers in 
the form of Redcoats were kicking in doors to see who was drinking 
tea without paying tax.

Of course some "government agent" may believe that people who hold 
certain views are more likely to commit certain crimes than others.   
People who opposed the Vietnam War were often more likely to smoke 
marijuana than Robert McNamara and Lyndon Johnson in his older 
years.  This gave rise to something called "hippie probable cause" in 
which VW vans with peace symbols were stopped on general principles 
until a Cal. SC case called Keller came along and put a halt to the 
practice, in theory at least.  While not the same as an injunction 
halting the police conduct, the effect was to remove the incentive by 
disqualifying the evidence for use in court.

The difference seems to be that an injunction forestalls the 
investigation from occurring in advance,  while the granting of a 
motion to suppress quashes the fruit thereof in arrears.  Same game.

E asks whether it should be unconstitutional to prevent a 
government agent, i.e. an undercover officer, controlled informant, 
or a bug or its equivalent) from invading the privacy of a medical 
office where patients and doctors communicate on a basis of privilege.

The answer is of course it should be unconstitutional, that is if you 
hold other values dearer than having Insp. Javert spend 20 years 
hounding Jean Valjean.

We disallow evidence obtained by torture on policy grounds.  Likewise 
evidence obtained by threat of punishment or promise of reward, and 
psychological coercion.  For policy reasons.  These methods, or 
cures, turn us into the bad guys and prevent us from complaining when 
one of us is so treated by others.

Notice that in the list of items of evidence in Cal. P.C. 1524 there 
is no item listed as speech per se.  There are only property, items, 
documents, images, and generally tangibles or tangible 
representations such as photos, but not the spoken word.

Anyone who has the power of speech could conceivably conspire or 
solicit the commission of a crime as dire as the World Trade Center, 
but that is no argument for bugging anyone having a voice, any more 
than for investigating all males for possession of rapists equipment, 
or all repairmen for possession of burglar tools, to narrow down the 
universe of potential suspects to one calling.

Why not make the government agent's job easier by requiring all 
physicians to record and turn over all patient conversations to the 
police?  That would eliminate having to run in undercover agents.

The answer to the question, "Why couldn't [speech] be used as 
evidence that the government considers in deciding whether to 
investigate, i.e. look for more evidence?" is that we've been doing 
this for decades and don't like it.  That's what the Red Squads 
(police detectives who investigated dissidents) were doing in 
photographing demonstrations, keeping lists of names of suspected Red 
sympathizers, and generally harassing people who exercised their 
First Amendment rights.  Some departments have abolished their Red 
Squads.  Others may disguise them.  The FBI has long been derided for 
keeping book on people like Charlie Chaplain and John Lennon for 
speaking out against the views of J. Edgar Hoover.  COINTELPRO was an 
abusive investigative tool that set people up because of their views 
as well as their activities.

That's what happens when you make speech, meaning the expression of 
views contrary to official or defacto political policy, the trigger 
for your investigation.  If ever there was a politicized category of 
contraband, after tea, it is marijuana.

rs
sfls

On Oct 8, 2007, at 2:47 PM, E wrote:

    Conant v. Walters, 309 F.3d 629, 636 (9th Cir. 2002), upheld an
injunction that barred the government from "initiat[ing] an
investigation of a physician solely on the basis of a 
recommendation of marijuana within a bona fide doctor-patient relationship, unless the
government in good faith believes that it has substantial evidence of
criminal conduct.  Because a doctor's recommendation does not itself
constitute illegal conduct, the portion of the injunction barring
investigations solely on that basis does not interfere with the 
federal government's ability to enforce its laws."  Denney v. DEA, 2007 WL
2344900 (E.D. Cal. Aug. 15), extended this to bar "retaliationary
investigation" of a doctor who has publicly testified in favor of the
use of medical marijuana.

    I sympathize with the courts' thinking here, and their desire to
prevent investigations that might well deter protected speech.  At the
same time, given that speech can be used as evidence at trial (even 
when it's merely relevant, not dispositive), why couldn't it be used as
evidence that the government considers in deciding whether to
investigate, i.e., look for more evidence?

    Say that a government agent believes that people who express
certain views -- pro-marijuana, pro-racist-violence, fiercely
anti-abortion-provider, and the like -- tend to be involved in 
criminal activities as well.  He therefore focuses on some people who say that,
and tries to uncover more evidence that would support probable 
cause for a search or for an arrest.  He naturally doesn't yet have probable
cause, or even "substantial evidence," but he's also not yet 
engaging in activity that would normally require probable cause:  He might just be
going undercover to talk to the person, or asking around about the
person, or even searching through publicly available things that the
person has said or records of what he has done.  Should that be
unconstitutional?  Or should a person's speech be usable as a basis 
for an investigator's investigating further, though not searching,
arresting, or convicting?

E

***
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PRIVATE EYES AND PUBLIC

Have you thought much about investigating, investigations, and investigators?

I have.  A lot.

One of the things I've thought about is how you can get into trouble using the wrong investigator, meaning someone who doesn't know how to do it right.

What you want is a competent investigation when you want to find out anything.  That includes the idea that the investigation must be conducted rationally and with integrity.  These are big concepts, a lot bigger than the mere words at first glance.

It might be easier to start small and ask what an investigation is and who can do it.

Babies investigate.

Dogs investigate.

Lions and monkeys investigate.

So do the little fishies in the sea.

Any time you try to find out whether something is good to eat, or where it is, you are investigating.  We are hard-wired to investigate.

We're also hard-wired to be deceptive.  At least this is what I think, otherwise how would I have known to lie when caught doing something wrong even as a little kid.  Blame me?  Not me.  Blame him.  He was the instigator.  It was all his fault.  How did that contraband find its way into my locker?  Beats me.  Someone must've put it there.

Babies:  once burned twice shy.

You look, you see, you remember, you don't do that again, unless you think you won't be caught.

Doing things on the sly is the American way, the human way, the natural way.

How did Ralph Nader become the leader of the consumer movement in America?  Who put him on the map?

General Motors did.  It made an automobile called the Corvair.  I forget what was special about the Corvair, except I think it was the only American car with a rear-mounted engine.  Only Volkswagen had rear-mounted air-cooled engines at the time, back around 1958 or '60.  That and the Corvair rolled over a lot.  So this young reformer out of Harvard Law School began checking out the Corvair and the reasons why it kept rolling over and killing the occupants.  Cars were supposed to crash and you walked away, not roll over where you burn and die.

General Motors hired a private investigator to follow Ralph Nader.  The investigator found out that he was a monk.  Lived alone, didn't date, drink, or drive fast cars.  He walked.  They found no dirt on Ralph Nader.  He found out that GM had sicced the private dicks on him.  He wrote about that too.

The country went into an uproar.  GM had hired private eyes to follow a clean guy who was only trying to tell the public the truth where GM was trying to kill members of the public by hiding the dirt on one of their killer-cars.

Nader became famous.  GM became infamous.

That's what made Ralph Nader.

Hewlett-Packard invented Silicon Valley.

But the company has been having its difficulties sixty some years down the road.  There's been fighting on the board over the direction of the company.  There's been a change of chief executive or two.  Carly Fiorina was let go.  Patricia Dunn took her place.  There's been more fighting on the board.  Some of the dirt leaked.  She sicced a private investigator on the board to see who was leaking.  The P.I. began to dig the private information on the board members.  One of them quit.  He was Perkins of Kleiner Perkins the venture capital firm. 

You want to start up a new company in the Valley and you need the dough for your good idea, that's one of the VC firms you want on your side.  Big, rich, and savvy.  You get instant credibility if they like your idea.  Other investors want in.  You're off to a good start.  It'll cost you, but you're good at inventing digitized widgets, not running a business, so you make a trade.  Ownership and control in return for the success of your idea, without which not.  The story is below. 

Dunn may be on her way out.  If the board wants me out, she said, I'll go.  Meanwhile she's been making the rounds of the newspapers saying mea culpa, I didn't mean it."  Right.  And I didn't mean to get caught with the contraband in my locker, either.  Dunn is the General Motors in this story and Perkins is Ralph Nader, in case you hadn't guessed, which you did because you're smart, otherwise you wouldn't be reading this, right?  Here's a WaPo report.

The problem with private investigators is that in order to get information they have to cheat.  Either that or sit on someone, meaning to follow the person everywhere he goes, but that isn't what the P.I. may want to know.  The P.I. wants to know financial information, court cases, newspaper articles, who the subject talks to, about what, etc.  The P.I. wants to know about criminal cases, etc.

It used to be the case that P.I.s were ex-cops who knew current cops they'd trained and all they had to do was to call up the old partner and ask him to run a check on you.  There was no way of checking who ran a rap.  That's all changed.  Now it's a crime to divulge confidential criminal justice information, although you can run down to the courthouse and pore through the dockets, which might take awhile.  It's much easier if you could access the DOJ records or CII the way the cops do, but you can't, most of the time.  Even the DMV records, which used to be public, are now confidential for the general browser, since the actress was tracked and murdered a few years ago.  Some stalker found out where she lived through the DMV and access was thankfully restricted.  Thankfully unless you're trying to find a witness listed in the police report and you can't find him.  So you look in phone book or do a Zabasearch online and if you still can't find him, you call your investigator and ask whether he can do better than you, which sometimes he can and sometimes he can't.

I've written about investigation here.  Look under "child molestation accusations" or Richard Feynman.  He tells you how to investigate with integrity.  See his article "Cargo Cult Science," a chapter in his book "Surely You're Joking, Mr. Feynman."  He investigated the cause of the Challenger disaster and showed the country how it happened by dipping a piece of rubber O-ring into a glass of ice water as the TV cameras rolled, nation-wide.  The nation got a lesson in investigation by a scientific investigator who knew what he was doing and wasn't afraid to do it right and in public.

President Bush is busy investigating.  He's got the NSA investigating who are the terrorists.  They vacuum clean the skies and wires of electronic signals that reveal who you talk to and who they talk to about what.  Without a search warrant, which the Constitution requires.  The Constitution thus regulates the ability of government to investigate, to find out information it wants to know to detect crime and terrorists and the enemy, whoever that is.  Some presidents, like Nixon, had lists of enemies.  Got the IRS to investigate enemies, such as Daniel Schorr, the reporter, now on NPR.  He's ninety and has been reporting since the war.  That would be World War II.  Everything else since has been the fiasco.  WWII was the war.

So Bush is in trouble not just for the war in Iraq, which he started, but for investigating who the terrorists are, which doesn't include Iraq.  Iraq was not allied with Al Qaeda.  The president himself finally said that.  As did the CIA and the Senate Intelligence Committee.  But for a long time the president said the opposite, saying that somehow Saddam was supporting the terrorists when he wasn't.  There may have been a lot of things that Saddam had done that were wrong, but this wasn't one of them.  Too bad, because then we'd have a lot better reason to go after him, not that he didn't deserve it.  You don't mess with the Lone Ranger.

So you can see that investigating is a troublesome undertaking.  A private investigator in Los Angeles, Anthony Pellicano, is in prison allegedly for either possessing contraband or wiretapping subjects to benefit the attorneys who hired him to investigate the other side, I forget which.  How was the attorney supposed to know the P.I. may have been doing something illegal?  You hire an independent contractor and hope he doesn't break the law.  You didn't ask him to break any law, in fact you told him to break no law.  What do you do if he breaks the law?  Suppose he gets caught speeding en route to a location.  Are you responsible for that?

The rule, I think, is that you must never allow yourself to get close to your investigator, or s/he might inadvertently do you in.  And provide explicit instructions.

The rule for investigators is never to work for private clients without knowing what you are doing.  A private investigator I'd used came to me saying he was in trouble with the feds.  He'd been working for some other attorney in a drug case.  The investigator got to know the client who was paying the bills.  The client asked the P.I. to run this here package down to the airport and give it to So-and-so, which he did.  Bzzzzz!  Right.  Dope.  Trouble.  Prosecutor gave him a pass that time.  New Rule:  Take assignments only from licensed members of the State Bar.  They've got something to lose and are unlikely to ask you to smuggle dope.  Look inside the package anyway.  Better yet, you're an investigator, not UPS or FED-EX. Those guys know how to avoid carrying contraband.  You don't.

I made a trip back from the Philippines years ago.  When I unpacked in San Francisco, I found a balisong, a butterfly knife.  One of the characters who drove me to the airport had slipped it into my one of my bags.  This is before they had airport security.  So now when they ask "Has anyone had access to your luggage except you," I respect that question to the uttermost.  Because it happened to me.  Otherwise I wouldn't have believed it.  As a former prosecutor, I'd gotten into the habit of disbelieving people who said I didn't know the contraband was in my trunk, or luggage, or pocket.  Yet it happened to me.  Lucky I wasn't caught.  Balisong:  felony, switchblade, good for only one thing, cutting people open.  You don't want one.  You know what they say.  Never bring a knife to a gunfight.  I forget who said that.  Clint Eastwood?  Paul Newman?

Investigating is important.  Much too important to be left to flakes.

Lawyers are investigators.  Or, we direct investigations.  Let someone else rack up the hours trying to find out stuff.

When I was in law school in New York in the 'Sixties, sometime between the Cuban Missile Crisis and the Annual Long Hot Summer Race Riots, I had a part-time job with the Vera Foundation, now the Vera Institute of Justice on their Bail Project, and then their Citation-in-Lieu-of-Arrest Project.  These resulted  in today's O.R. Projects and Citation programs where you get released from jail if you have roots in the community.  My job was to determine whether you had roots.

So I interviewed you behind bars.  How long have you lived here, worked here, see your relatives, etc.

Then I had to check these out.  Had to call home and call the boss.  But sometimes the arrested person didn't want the boss to know he'd been arrested and what for.  So I had to make up a story about who I was and why I needed this information right now. 

"This is Mr. So-and-so from the credit bureau," I might say, "and Mr. XYZ says he's from your company.  Can you verify that he works there and for how long?  Thank you very much."

Since I was trying to help Mr. XYZ, I didn't figure this was a big sin.  But I almost always got the information I needed.  I became very good at lying like this.  They couldn't see my red face.  After awhile it wasn't so red.

This is what private eyes and undercover cops do, a lot.  They pretend.  I see there's even a name for it now.  They don't want to call it lying.  They call it "pretexting."  Lying, by another name, smells as sweet.

We like lying, don't we?

Lying helps us get through the day, and the nite.

You know the three biggest lies in the world?  One is, "The check is in the mail, another is "I love you," and I forget the third.  Another lie.  It's too risque even for here.

I represente a man who was falsely accused.  By his daughter, 3, supported by her mother, his ex-wife.  Really.  His wife was having an affair with her divorce attorney, supposedly a secret.  We suspected it and I asked an investigator from one of the top agencies to check this out, for it would mean a lot.  But the wife was being very careful and called the police as she was being followed.  The police stopped the investigator.  Detained him.  I asked the investigator's boss, did your man reveal what he was doing?  "Oh, no, never, he would never say what he was doing following the wife who was having an affair with her attorney." 

Right.

Later I read the incident report.  To get out of the clutches of the law, the investigator spilled the beans.  He was following her in connection with legal matters I was handling.  Great.  Let's see what happens next, I thought.  What happened next was that as soon as the case was over, the ex-wife married her attorney, as he was kind enough to advise in writing.

We beat the phony rap anyway.

If anyone lived happily ever after, I surely don't know who it was.

***

Sept. 12, 2006

Patricia Dunn, the CEO of HP is stepping down in January, apparently the result of the private-eye abuse scandal over checking into boardroom leaks.