L. Neil Smith's
THE LIBERTARIAN ENTERPRISE
Number 91, September 25, 2000
Goofy 9th Circuit Finds New Reason to Reverse Convictions
by Vin Suprynowicz
Special to TLE
The protections against improper behavior by police or prosecutors which are enshrined in our Bill of Rights once kept this nation free.
How well have our courts done in defending these guarantees, lately?
Miserably. So long as authorities insist that only vast "leeway" will enable them to meet their "compelling obligation" to catch drug dealers, money launderers, and the like, the courts have allowed one safeguard after another to be watered down or stripped away. Our own bankers are now required to turn us in for "suspicious" transactions; the FBI is developing computer systems to scan our e-mail; we can no longer even take a new job without having our names "run" by federal agents supposedly searching for "illegals" and "deadbeat dads."
The courts now find it "reasonable" for police to stop and search virtually any car they wish, any bus or airline passenger. Homes are searched based on the tips of supposed "confidential informants"— they might as well allow police to claim "The pixies told us"—and no one was ever indicted for swearing under oath they thought David Koresh and the Branch Davidians had a methamphetamine lab in their church.
If the courts went back to rigorously enforcing the real Bill of Rights—according to the federal agents' own arguments—the War on Drugs would quickly collapse of its own weight. For that matter, Article I Section 8—which lists all the powers delegated to Congress—says not a word about delegating any power to regulate drugs or medical or pharmaceutical practice. Therefore, under the Ninth and 10th amendments, the courts could and should have thrown out that entire section of the federal statutes which deals with drug trafficking ... long ago.
Instead, the courts—most specifically the wacky Ninth Circuit court of appeals, which oversees the nine western states—prefer to turn the justice system into a bizarre and unpredictable new form of lottery, making up bogus new rights as they go along.
In an opinion filed Aug. 24, the 9th Circuit reversed the cocaine trafficking convictions of Las Vegans Carlos Cabrera and Iran Mulgado, on the grounds that the government's lead witness, North Las Vegas police Detective William Brooks, repeatedly referred to the men in his testimony as "Cubans," going so far as to testify "At this time period, we were working a lot of Cubans in the area."
A three-judge panel found for defense attorney Gregory Denue, who appealed based on the fact that this statement indicated "Cubans were the pre-ordained racial class that was the subject of the police task force."
Well, thank goodness the defendants were too smart to let a few Canadians into their gang!
Mind you, the court did not find Cabrera and Mulgado were arrested merely because they were Cubans, whereupon evidence of drug trafficking was found only subsequent to those arrests on improper grounds—which would indeed be a Fourth amendment violation worthy of attention. Nor did they throw out the convictions (as well they should) based on the obvious fact that Congress has no delegated power to restrict drug trafficking at all.
No, the court has ordered new trials for the men—now being held in federal prison in Florida—simply because the detective referred to them as Cubans, within the hearing of the jury.
Well, aren't they Cubans? The court found presiding U.S. District Court Judge Johnnie Rawlinson—since elevated, ironically enough, to serve on the appeals court—erred by allowing this testimony. What should Judge Rawlinson have done—lied to the jury and told them the defendants are actually Portuguese?
Even the opinion of the Ninth Circuit panel notes that "The evidence was sufficient to convict Cabrera and Mulgado."
This is downright goofy. Does the court really believe an honest citizen jury would convict these men merely because they learned they were Cuban? Does the court believe the jury couldn't have figured out the men were Cuban, all by themselves?
If so—given that historical prejudice against our black citizens has been very real and far more extensive than any known prejudice against Cubans (I don't remember any lynching threats when Lucille Ball married Desi Arnaz)—must all black defendants now be set free based on the presumption they can't get a fair trial? Or only those who police officers actually refer to as "black" during their testimony—on the assumption jurors otherwise might not have noticed?
Must all ethnic defendants now be given made-up Anglo pseudonyms and put on trial with brown paper bags over their heads?
Prosecutors say they may ask for an 11-judge panel to review Judge Nelson's ruling. Good. If there were clear evidence that police singled out these men for prosecution—while letting equally suspicious Anglos go with a wink and a nod, for instance—then of course such disparate treatment based on race would be appalling, and should be renounced and reversed.
Instead, what we seem to have here are three black-robed liberals, again ignoring a broad opportunity to restore our Constitution of limited government, instead searching under the cabbage leaves for something new and different to feel guilty about.