Category: Lectures & Speeches

Bill of Rights – Part Two

Bill of Rights – Part Two

The Bill of Rights – Part Two


In this series we explore 1) the Source of the Bill of Rights, 2) Who’s rights are protected 3) Whom are the rights protected from, and 4) What rights are protected.


In Part Two we consider who is protected by the Bill of Rights.


Though the scope of the issue is too broad for one blog post, it is possible to get an overall appreciation for the reach of the Bill of Rights by looking at classes of persons who may be protected by the Bill of Rights as being arrayed along a spectrum.


At one end is the easiest category to define: citizens of the United States residing within the jurisdictional borders of the United States.


At the other end of the spectrum is a class of persons who are neither citizen nor reside within the jurisdictional borders of the United States.


Between those extremes are other classes of persons with varying degrees of citizenship and connections to the country.


As one studies how the Supreme Court addresses each category of persons never far below the surface is the concept of Natural Law which I discussed in Part One. If, as many of the Framers believed, Fundamental Rights are bestowed on us by our creator and exist separately from any man-made law including the Constitution, the population protected by the Bill of Rights is not limited by the concepts of citizenship or physical location.


A couple of real life examples put this in context:


Al Awaki was an American Citizen living in Yemen who broadcast Muslim jihadist screeds urging attacks against the United States. He was intentionally killed in a drone strike ordered by the American government. In an existential sense that was a very good thing. He was an enemy combatant and did not deserve the niceties of Due Process and Trial by Jury. And he certainly wasn’t afforded them.


Similarly, just this week, a recent immigrant influenced by the same religious philosophy, murdered innocent American citizens on the Streets of New York. He was shot, unfortunately lived, and now is in custody. Is he protected by the full panoply of our Bill of Rights? Or, if he is declared an enemy combatant like Al Awaki, can he be denied those rights and as President Trump initially suggested be sent to Guantanamo Bay?


Modernly, a good place to start looking for answers is by examining how The Supreme Court defines the word “People.”


The Preamble to the Constitution states the Constitution is ordained and established by “the People of the United States.” The words “the People” can be found in the Second Amendment (bear arms), Fourth amendment (search and seizure), but not the Fifth Amendment (due process and self incrimination), and Sixth amendment (fair trial, counsel). By contrast those later amendments use the words “Person” or “Accused.”


Significantly, however, the phrase “the People” is also found in the Ninth Amendment (“other” rights retained by “the People” – see previous post in this series) and the Tenth Amendment (all other “Powers” retained by “the States or People”).


So who are “the People”?


Let’s return to the far end of my fictional spectrum. Does the Bill of Rights apply to a non-citizen residing outside the United States.


In United States v. Verdugo-Urquidez, (1990) the defendant was a leader of a violent drug cartel in Mexico. He was also a citizen of Mexico, who lived in Mexico. The United States Drug Enforcement Administration obtained a warrant for his arrest. After he was captured in a raid on his residence in Mexico by Mexican police he was transported him to the border where he was turned over the U.S. authorities. The DEA then, working again with local Mexican authorities, searched his property in Mexico for evidence of his drug dealing.


When brought to trial he invoked the Fourth Amendment in an attempt to suppress the evidence gathered against him. He alleged as a citizen of Mexico, he enjoyed the protections of our Bill of Rights concerning searches of his property in that foreign nation.


In rejecting his claim, Chief Justice Rehnquist wrote that the phrase “the People” as used by the framers was a “word of art.” That it refers to “a class of persons who are part of the national community or who have otherwise developed sufficient connection with this country to be considered part of this community.”


He went on to say “The available historical data show, therefore, that the purpose of the Fourth Amendment was to protect the people of the United States against arbitrary action of their own government; it was never suggested that the provision was intended to restrain the actions of the Federal Government against aliens outside of the United States territory . . . . “


In a dissent in that same case, Justice Brennan joined by Justice Thurgood Marshall made an enduring statement that encapsulates the idea of Natural law.


In discussing the drafting of the Constitution and the Bill of Rights he said, “Americans vehemently attacked the notion that rights were matters of “favor and grace,” given to the People by their government. Thus the Framers of the Bill of Rights did not purport to “create” rights. Rather they designed the Bill of Rights to prohibit our Government from infringing rights and liberties presumed to be pre-existing.” He went on to argue “it is thus extremely unlikely that the framers intended the narrow construction of the term, “the people” presented today by the majority.”


Inching forward on the spectrum, in Hamdi v Rumsfeld, (2004) Justice Sandra Day O’Connor wrote an opinion confirming that an American Citizen who was captured in Afghanistan fighting for the Taliban, could be held at Guantanamo Bay as long as he was given a means to challenge his classification as an enemy combatant. Albeit he did not have to be granted the full benefit of the normal array of rights afforded an accused. For example the determination could be done by a military tribunal and rules of hearsay and other evidentiary protections could be suspended.


Traveling further along the spectrum,


The protections of the Bill of Rights apply differently even to certain classes of citizens residing in the United States. For example, juveniles in public schools do not enjoy the same range of protections as adults.


As we get along toward the middle of the spectrum we encounter non-citizens, aliens, residing in this country illegally. The courts are struggling everyday with this issue. Generally, all that can be currently said is that if they are here when they come into contact with the government, and are not deported, they are going to be granted the protection of certain rights mainly in the criminal justice arena.


Moving on along the spectrum, we find an interesting case the Supreme Court has been struggling with. It involves a young male citizen of Mexico who while standing on the Mexico side of the border was shot by a border patrol officer from the American side. Can he invoke the Bill of Rights? We expect a ruling this term.


Which brings us to a unique but often overlooked point on our spectrum: corporate entities. Does the Bill of Rights extend to a “for profit” corporation? Are Corporations “People” protected by the Bill of Rigths? And, if so, what does such a concept do to the theory of Natural Rights: that our rights are bestowed upon us by God?


In the famous “Citizen’s United” case, The Supreme Court held that the First Amendment Freedom of Speech provisions applied to an association that paid for broadcasts of a film critical of Hillary Clinton in violation of campaign finance laws.


Similarly, in the Hobby Lobby case the Court held that a closely held for profit corporation could invoke the Free Exercise of Religion clause of the First Amendment to refuse the requirement of the federal government that they provide access to abortion services in its employee’s health program.


Both of these cases were 5-4 decisions, but were frankly consistent with precedent.


Although broader societal issues get the most discussion, the foundation for both decisions rest on a legal fiction that Corporations are “People”. Courts, including the Supreme Court, have resorted to the device countless times.


For example the analysis in the Citizen’s United case that gets little notice is the Court’s discussion of how to protect the Freedom of Speech rights of Media Corporations. The talking head we see on T.V. isn’t the only one who needs the Bill of Rights protection. They are largely empty suits and interchangeable anyway. The newsgathering and reporting business is big business ran by huge corporate entities and for the First Amendment to survive, Freedom of Speech and the Press must apply to them.


Natural law as I wrote in my previous post had and continues to have a huge influence on how the Supreme Court approaches the Bill of Rights. And, admittedly, it is an attractive notion that each person has these God given rights even if not enumerated in the Bill of Rights. However, real life experience cautions that Natural Law is also something of a romantic notion that in practicality doesn’t hold up when the logic of Natural Law is extended to the logical ends of my imaginary spectrum.


Although my opinion vacillates from time to time, as is my right as an old broken down retired D.A. and erstwhile college professor, I currently hang my hat with those of our framers who insisted our Bill of Rights be enumerated and preserved as part of our constitutional legacy.


For more essays and other writings I invite you to visit my web site at






Speech at San Joaquin College of Law

Hall of Fame Induction.

When Diane asked me to be MASTER OF CEREMONIES tonight, as you might expect, it got me to thinking about the school, the memories, what it means to all of us, and all in light of the honor and pride tonight’s inductees brings to the school.


I have to admit, when I did the math, I was a little shocked. To realize that next year it will have been 40 years since I graduated from San Joaquin.


After I caught my breath, what struck me was the connection between now, tonight, our outstanding inductees, and SJ 40 years ago.


When I showed up as a first year law student and found my seat in that classroom in that large round building over on the Pacific College campus, the school was new. It had graduated its first class, but that was about it. It wasn’t crystal clear the school would survive.


I have to pause here to mention my classmates. One made friends quickly in that situation. My study group included the likes of Paul Hinkley, John Suhr, Tim Magill and a dear friend we lost a couple of years ago, Steve Sefton.


We were all different, we all went different ways in our legal careers, but we all fell in love with the law at SJ, a love affair that never left any of us.


And in each of our careers SJ and the legal education it provided meant something special.





When, I attended, some of our professors were founders.


Dean Dan Eymann taught Torts. A classy guy. You knew you were in the presence of someone for which leadership was a characteristic come by naturally.


Mr. Loomis taught us Contracts. It was always MISTER Loomis. The man was universally respected. His hypotheticals were legend, still are, and in our study groups we all found ourselves imitating how he would propound them.


Then there was Oliver Wanger, who we called “Ollie” behind his back. This was well before he became a federal judge.   He drove a big shiny black car, I think it was Lincoln, Lots of Chrome, and shoes so polished I always assumed they were patent leather. I like my bling so l thought the man stylish and cool. We all figured as a lawyer he was very expensive. And we also quickly found out the man’s intellectual gifts were staggering. And that lighting quick wit could be intimidating, oh so very intimidating.


We had Judge, later Justice, Hollis Best for Evidence. And I can remember him stalking around the classroom, up and down the aisles, making eye contact with students with which he was engaging.   I remember seeing in my mind’s eye what he must have been like trying cases in the courtroom before he became a judge. I always thought he missed being a trail lawyer and the classroom gave him a chance to relive some of those moments. And, boy, could he teach evidence. He knew how to make us see how it actually worked everyday in the courtroom.

His teaching made a lot of us want to be trial lawyers. What we learned from him made us good ones.


SJ has a long history of having professors who were not just good at teaching, but the students could tell they were good at what they did outside the classroom. They were good at their profession. And you wondered sometimes if you could ever measure up.


But then after class there they would be, our teachers, up at the front of the classroom, surrounded by students, answering questions and laughing with them, sharing a moment of their busy, meaningful lives with us.


And of course that is the key. That is the connection from then – over the decades – to here, right now.


SJ and the culture passed down from the individuals who founded the school, and those practicing legal professionals who took the time to share their knowledge.


A culture of Caring about the students. Carrying about their success.


Because at SJ it has always been about the students.


SJ wanted the students to do good. They wanted them to pass the Bar, They wanted them to get a good legal job.


And not just that, they wanted them to be good lawyers, lawyers who respect the law, respect their role in a functioning democracy, who understood the importance of the legal profession to their community.




Yes, The staff, and the instructors were excellent, and they still are, but the bottom line for the school, in my estimation, was about developing good, reputable lawyers, those who would enhance the legal profession, make each of us proud to be called attorneys at law, make each of us proud to be called SJ graduates.


That is the ultimate accolade for the school.


And tonight’s inductees, in your career, connect back to all that, you exceeded that high bar of excellence the school expected of you and the school knew you could achieve.


You are the connection back to Dean Eymann, Mr. Loomis and all the rest. How proud they would be to know the school produced such excellent men and women of the law.


What hard work you did in your careers. What pride your loved ones and family must have in your demonstrated excellence, your outstanding careers in the law.


You were selected by your peers from lists of distinguished members of the profession. You have distinction among the most distinguished.


Your school is so very proud of you, every alumnus is proud of you and we are proud to induct you to the San Joaquin College of Law, Hall of Fame.








Lecture to Students in Correction’s Officers Program

Insights into Voir Dire and the Role of Prosecutor


Voir Dire


From French, “To see, To speak”


Last skill mastered as trial lawyer, because most difficult to do correctly.


i.e. Stumbling to find juror’s name in notes vs. memorizing names while defense questioned.


“Unpicking” a jury – Group Psychology.


How you, as investigating officer, can help the prosecutor. You know community and families. What you notice in the courtroom, in the neighborhood where they live.


Questioning: Done by Judge/Attorneys




For Cause



Officer/Prosecutor Credibility with them more important than with any other person in court, including the judge.


Being yourself

Your language/dialect vs. “police speak.” getting out of car vs. “exiting vehicle”.


Trials take place in courthouse not just courtroom – be on guard about how you conduct yourself, what you say out loud, don’t want to be embarrassed or run into potential juror who heard you on elevator. You are at work, on the job, while on courthouse grounds.


Role of Prosecutor


Evolution of Prosecutor Elective thanks to Jacksonian democracy. 1828 until Civil War- no longer arm of judiciary – Independently elected. No city managers, no supervisors, etc., have to answer to.


Whether to charge, what to charge, the level of charge AND


The “Power of No”/Prosecutorial Discretion


Executive Branch


Rivers of cases flow from islands of Law Enforcement agencies to one place and Only One place, The District Attorney.


Filing cases


Uniform Crime Charging Manual


“Reasonable probability of conviction by an impartial fact finder


Note: This is more than probable cause


Not fooling anybody by arresting too soon. Premature arrest vs. getting warrant. (review and validation by prosecution agency)


Lazy officers think going to get statement then don’t, then have a person in custody with no evidence. Undermines credibility of police power, and public’ confidence in Justice System.


Police Reports


Collection of Evidence


Real Reason you complete and collect – to be used in court for prosecution. Secondary is to provide stats for studies, a reason one can sometimes bemoan because if stat driven then lose important element of the real life regarding criminal, victim, and police.


Trials AND suppression hearings, insanity pleas etc. Special proceedings need evidence too.


Talking to witnesses —You must talk to All — if don’t they will be defense witnesses by the time Trial roles around.


“You lie, you die”. Just the facts: just the actual, known facts. Lie on a police report and you are useless to the prosecution in the future. And most departments will fire you-as they should.


Real People – Real Situations. – Little old lady vs. homeless, “Stinky Alice” example.


Juries want real people, not a sanitized version of a witness.

More examples: Alcoholic. Told jury got him a drink. – Panhandler and Bum – I called him that before defense or jury could.


Role of Prosecutor – Continued


County wide jurisdictionProjection of power per investigation bureau– police the police – representing people also means also representing the defendant as a citizen or member of society. Delivering justice.




Absolute vs. Qualified (Conclusive presumptions vs. Rebuttable presumptions)


Justified by “Chilling effect.”


Clear ethical duty is to do justice. May strike hard blows, but not unfair ones.