Take the Fifth -- And Face Life Imprisonment Without a Trial

Philadelphia resident Francis Rawls has been in solitary confinement for seven months, despite the fact that he has not been accused of a crime – let alone convicted of one. He may spend the rest of his life in that condition as punishment for invoking his unconditional right, supposedly protected by the Fifth Amendment, against self-incrimination. 

Apart from the seventeen years he spent as an officer with the Philadelphia Police Department, Rawls has never done anything to threaten the public. He has no criminal record. He is suspected of possessing child pornography, which would evince an unspeakably vile appetite and make him a suitable subject of social ostracism. There is no documented reason to suspect him of committing an act of violence or exploitation against a child, which are among the worst imaginable crimes. 

When an estranged sister claimed to have seen child pornography on Rawls’s cellphone, police demanded that he provide them with access to the device. Rawls cooperated, and no such material was found. 

 

Indefinitely imprisoned without charge: Rawls.

Investigators subsequently seized Rawls’s Apple MacPro computer and external hard drives and sued them: The case bears the unlikely title “United States of America v. Apple MacPro Computer, et al.” Investigators demanded that Rawls provide them with his encryption codes. Quite sensibly, Rawls refused. He is a veteran cop and knows – better than the public he supposedly served in that capacity – what happens when a targeted citizen offers the police unrestricted access to his home and personal effects. 

If he had acceded to the demand for his encryption codes, Rawls would have done the equivalent of allowing the police to rummage through every room, closet, and drawer in his home, while letting them inspect all of his correspondence, medical records, and personal finances. Diligent and motivated investigators would eventually find something that an ambitious prosecutor could use to manufacture a felony charge. 

A Delaware County task force, stymied by Rawls’s defiance but determined to pursue the matter, referred the case to a grand jury. Judge Chad F. Kennedy of the Delaware County Court of Common Pleas ruled that Rawls “properly invoked the Fifth Amendment privilege [sic for indefeasible right] against self-incrimination when indicating that he would neither perform the act of decrypting the electronic devices … seized by the Commonwealth, nor provide the passwords to the Grand Jury for the electronic devices.” 

Rather than accepting this constitutionally unassailable ruling, the task force called in the Feds. An assistant U.S. Attorney filed a motion before US District Judge Thomas J. Rueter – whose background, as we will shortly see, suggests that he was uniquely well-suited to craft an extra-constitutional means to compel Rawls to submit. 

In his motion, the federal prosecutor invoked the All Writs Act of 1789, a statute enacted two years prior to the ratification of the Bill of Rights. That Act is used when the Feds want to treat the Fourth and Fifth Amendments as the useless ornaments they have proven to be. It was recently used against Apple when the chekists at the FBI wanted the company to provide it with an encryption key that would unlock an iPhone used by one of the San Bernardino shooters – and would likewise give the Regime a backdoor to every other computer or electronic device produced by the company. 

Judicial torturer: Rueter.

Apple was being ordered to invent something that didn’t exist, and threatened with criminal sanctions if it didn’t comply. The FBI rendered the issue moot by hiring, at considerable expense, an Israeli tech firm called Cellebrite to overcome the iPhone’s encryption.

 

For his part, Rawls has not only refused to provide the police with the encryption key, he insists that he forgotten has it – a claim that is at once convenient and plausible. This is why the order issued by Judge Rueter commands him to “recall and divulge passcodes to two encrypted computer hard drives” (emphasis added) on which the pornographic images would supposedly be found. The existing “evidence” against Rawls at present consists of testimony by Detective Christopher Tankelewicz, a forensic examiner with the Delaware County District Attorney’s Office, that it was his “best guess” child pornography would be found on the hard drives.

Last August 27, after Rawls refused to comply with Rueter’s facially unconstitutional order, the judge found him in civil contempt and ordered him to be taken into custody by federal marshals and imprisoned until he repudiates his right against self-incrimination. A motion filed by his defense attorney received a judicial reply citing a smirking, sucks-to-be-him statement from a 1994 Supreme Court ruling that someone facing the prospect of life imprisonment, without trial, for civil contempt “carries the keys of his prison in his own pocket.”

Rawls, in other words, can unlock his own prison only if he hands over his encryption key to the State – which will inevitably find some reason to send him back to prison. 

For seven months he has been isolated away from all human contact for twenty-two and a half hours of each day, his separation palliated only by a monthly fifteen-minute phone call. Solitary confinement is a form of “no-touch torture,” in this case imposed as punishment for non-cooperation and as a means of coercing him into testifying against himself.

This is precisely the kind of predicament the Fifth Amendment was supposedly intended to prevent.

The Framers of that amendment, as the Electronic Frontier Foundation points out in an amicus brief in this case, “used available encryption technologies in their day. James Madison encrypted the contents of many of his letters, including part of a May 27, 1789 letter to Thomas Jefferson describing his plan to introduce a Bill of Rights.”

For Madison, however, the most immediate priority – as he explained in a passage in Federalist essay 51 that should be notorious, rather than celebrated – was to “enable the government to control the governed.” Only when this is done is it proper to “oblige it to control itself,” as if self-control were an attribute of any political government.

The All Writs Act is one of the delightful authoritarian Easter eggs that litter the founding documents. Folded into the 1789 Judiciary Act that created the Supreme Court (and served as the basis for all Article III courts), that measure gives robe-wearing gavel-fondlers in federal courts the supposed authority to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”

Note that this passage doesn’t require that writs be compatible with legislative acts, or constitutional limitations. It authorizes judges to define “usages and principles of law” to fit the prevailing circumstances. This is a plenary indulgence for federal judges who violate the Bill of Rights – which, once again, had yet to be written at the time the original All Writs Act was enacted. 

Prior to being appointed to the federal bench twenty years ago, Thomas Rueter was exactly the kind of federal prosecutor who would use the All Writs Act to circumvent the Bill of Rights. His most notable case involved a Yugoslav money-laundering and technology-smuggling ring that was actually created by a preening glory-hound of a Customs Agent named Richard McCloskey. 

In 1988, with nothing better to do as a member of the tax-feeding class, McCloskey – posing as an underworld figure -- approached a tax protester named Hubert Cole. He pitched Cole on an elaborate money-laundering scheme involving Yugoslav diplomatic contacts. The two of them then contacted a Dallas businessman named Vjekoslav Spanjol, who had defected to the U.S. in the 1970s while he was with the Yugoslav merchant marine. Spanjol owned a custodial business but retained some contacts in his home country. 

Under the guidance of McCloskey and other federal play-actors, Cole and Spanjol arranged to send $2 million to a bank in Yugoslavia, which would launder it and remit the proceeds to another bank in the States. At some point, Spanjol developed misgivings about the plan and tried to extricate himself. He was told by Cole –who later admitted in court to falsifying some of the evidence used by the prosecution -- that his associates would kill Spanjol and his family if he didn’t cooperate. Given that the people to whom Cole referred were Feds, he was probably telling the truth. 

The patsies were arrested at the Philadelphia International Airport in December 1988. Three others were arrested on the same day, including an investment banker and a Yugoslav diplomat named Bahrudin Bijedic. 

The banker and the diplomat were acquitted of all charges. Cole turned states’ evidence in the expectation of leniency, and received none. Cole was given a five-year prison sentence, Spanjol a term of six years and five months, followed by three years of probation. He died shortly after being released from prison. 

Most of the evidence presented by the prosecution at the trial was drawn from 250 surreptitiously recorded conversations. The defense filed a discovery request for access to that archive, which most likely would have been a bonanza of Brady material – that is, evidence that would have been favorable to the defendants. One very important element of the case was Spanjol’s claim that he acted under duress. The trial judge ruled that his testimony was unconvincing on this point. There may have been irresistible supporting evidence within the recordings.

...but a federal judge can imprison you for life if you don't.

Rueter and his comrades filed a motion to suppress discovery on “national security” grounds before the secretive “FISA Court” – a seven-judge panel created under the 1978 Foreign Intelligence Surveillance Act. As it always does, the FISA court in that instance ruled in favor of the Feds, insisting that the prosecution had made a “sufficient showing” that defense examination of the recordings would injure “national security.” 

The trial judge, who reviewed the matter in a hearing from which the defense was excluded, ratified the FISA panel’s decision – thereby depriving two U.S. citizens of their right, supposedly protected by the Sixth Amendment, to examine and present evidence in their defense. 

There is a certain elegant – and sinister – symmetry at work here. As a federal prosecutor twenty-seven years ago, Thomas Rueter used secret evidence to send a man to prison; today, as a federal judge, he has sent a man to prison without trial – potentially, for the rest of his life – as punishment for invoking constitutional protections of his personal privacy.

This week's Freedom Zealot Podcast: For cultural commissars, hurting the feelings of someone belonging to a "specially protected class" is a more serious offense than physically or sexually assaulting someone who doesn't qualify for that exalted status:

Dum spiro, pugno!

Commissar Avakian's Evil Ambitions (Updated, May 2)

Oregon Labor Commissioner Brad Avakian bears a strong resemblance to Mikhail Gorbachev. That comparison is misleading: There’s no reason to believe that the former Soviet ruler was ever as passionately devoted to Communism as his doppelganger from the Beaver State. Unlike Avakian, furthermore, Gorbachev conceded that there were limits to his power, and eventually stopped trying to abolish property rights by decree. Commissar Avakian has just gotten started on that mission.

Since 2008, Avakian has afflicted Oregon business owners as chief commissar of the Bureau of Labor and Industries (BOLI). Seeking to expand the compass of his power to visit ruin on a state from which he should be exiled, Avakian is running for the position of secretary of state.

As defined by the state constitution and statutes, that occupant of that office is little more than a glorified file clerk who administers public records, supervises elections and notaries public, and sits on a couple of bureaucratic panels. Avakian, who as BOLI commissar has made an art out of acting beyond his brief, believes that as secretary of state he would have the authority to audit private businesses, establish “equal pay” guidelines by fiat, and impose penalties on anybody who offends the canons of environmental correctness.

He has admitted on at least one occasion that the things no Oregon secretary of state has exercised the powers he describes, but blithely insists that “I think that’s a mistake” – thereby casually confirming that his whims constitute the only law to which he defers.

Not surprisingly, Avakian’s neo-Leninism has endeared him to cultural revolutionaries in Oregon, but has alarmed what we might call the Menshevik faction within the state’s Democratic Party. He may not survive the May 17 primary; indeed, the last time he ran for a position other than BOLI Commissioner was 2011, when he was buried in a race to fill a vacant congressional seat.

Avakian’s most ambitious project doesn’t require him to change jobs. His office is data-mining US Census findings to create what he promises will be the “gold standard” index of wage information correlated by “gender, race, and religion – all the protected categories.” This information would be used to create an “action plan” to end “wage disparity” in the labor market. And, of course, in addition to using those findings to unleash litigation against employers in Oregon, “we’ll be sharing it with other states” in order to propagate similar misery elsewhere in the soyuz, Avakian boasted in a recent campaign address.

It’s quite likely that Avakian is using both his current office, and his campaign for Oregon secretary of state, to audition for a position in a Hillary Clinton administration. His resume is a bit thin, but his vaunting ambition and bottomless self-regard – coupled with his limitless hostility toward less enlightened human beings – might qualify him for a mid-level spot in the Department of Labor.

They broke no law, but were ruined nonetheless: The Kleins.

He would see that promotion as a reward – and Oregonians who belong to the productive class would see his departure as a relief. If this were to happen, Avakian’s successor would have to deal with the institutional unpleasantness that will ensue once his signature accomplishment, the ruinous $135,000 punitive award imposed on an innocent Christian couple who once ran a bakery in Gresham, is undone by an actual court.

Although it is an executive branch agency, the BOLI pretends to be a court, albeit one that reflects the Soviet, rather than the American, legal tradition. The Commissioner hires a cadre of prosecutors who present civil actions before an administrative law judge, who is also supervised by the Commissioner.

The same Commissioner brings civil actions, in the agency’s name, against targeted businesses, so he is a party to every dispute that is brought before the “court” (or “forum,” as it is formally called). The administrative law judge then makes findings of fact, and issues an order directing remedial action and a punitive award. That order is then reviewed by the Commissioner, who can revise it as he sees fit – despite, once again, being a party to the dispute.

Respondents in BOLI actions do not enjoy the same due process rights that are afforded in both criminal and civil trials. The administrative law judge in BOLI proceedings does not have the authority to impose sanctions on the Commissioner or his hired prosecutors in cases of misconduct.

All of this explains why Aaron and Melissa Klein, after being hit with a discrimination complaint in January 2013 for exercising their right to decline a business proposal, petitioned to have the case tried in a district court, rather than in Avakian’s proprietary Star Chamber. By the time the couple filed that motion, Avakian – who, recall, is the final arbiter of the controversy – had publicly pre-judged the case by openly stating that the couple, by refusing to create a wedding cake for a same-sex ceremony not then legally recognized by the State of Oregon, had committed an unlawful act of discrimination. He also characterized them as thought criminals who needed to be “rehabilitated.”

Since that motion was made before a forum Avakian controlled, it was denied, of course – but it’s worth focusing for a moment on his use of the term “rehabilitated.”

In addition to revealing the depth of Avakian’s totalitarian impulses, his use of that clinical term demonstrates the poverty of the case against the Kleins. They had supposedly injured the couple, Rachel and Laurel Bowman-Cryer, by declining to take their money to create a wedding cake. If the lesbian couple were the injured party, why was it the supposed offenders who needed to be “rehabilitated”?

Sticks and stones may break your bones, but hurt feelings are really lucrative.

During his testimony before the BOLI, Aaron Cryer, the brother of one of the supposed victims, stated that “the whole reason of pursuing this case is … to change [the] behaviors” of people like the Kleins, who subscribe to the pre-Obergfell definition of marriage as a union between a biological man and a biological woman. The ideologically motivated nature of the lawsuit against the Kleins was made clear in Avakian’s public comments, and discussed in email and social media conversations among the “victims” and their families early in 2013.

Those conversations were subpoenaed by the defense during the discovery process, and were among 109 pages of evidence withheld by the prosecution until practically the eve of the “trial.” Chief prosecutor Jenn Gaddis, lying with the practiced ease one expects from someone in her position, pretended that this was an oversight. However, 20 of the 26 prosecution exhibits drew from those 109 pages of long-withheld discovery evidence.

If this case had been heard before a legitimate court – even in the People’s Republic of Western Oregon -- that act of prosecutorial misconduct would have been sufficient to have the complaint thrown out with prejudice.

The 614-page appeal contains extensive excerpts from the official record of the case documenting that Avakian, working in collusion with a pressure group called Basic Rights Oregon, misrepresented the state’s anti-discrimination law, pre-judged the case prior to a hearing, exceeded his agency’s mandate, and violated the constitutional rights of the Kleins by claiming that they were required to participate in a ritual that violated their long-established and deeply held religious beliefs. Their refusal to create a specific product containing a message with which they disagreed was not a denial of “public accommodations,” but the lawful exercise of their free speech rights – a distinction that is recognized in the controlling Supreme Court precedent.

The Kleins were denied the opportunity to depose key witnesses. They were likewise not permitted to follow up on a critical question that arose when they were tardily provided with the suppressed 109 pages of discovery evidence: Why did Rachel, in a January 17, 2013 email written immediately after Aaron Klein had declined to make a wedding cake for the couple, claim that “This is twice in this wedding process that we have faced this kind of bigotry.”

Had they previously been turned down by another baker before seeking out the Kleins? Three years earlier, the couple had bought a wedding cake from the Kleins for Rachel’s mother, Cheryl McPherson. The Kleins, who knew that Rachel and Lauren were a gay couple, happily and respectfully provided them with that service, because it did not involve expressing a message, and participating in a ritual, to which they had moral objections. The couple complied with anti-discrimination law by accommodating customers of all varieties, but they did not offer products that were incompatible with their Christian worldview.

Again, this is a valid and legally recognized distinction, even under the prevailing anti-discrimination regime. If Rachel and Lauren had been previously stiff-armed by another baker, why didn’t they file a discrimination complaint in that instance?

Another – in my opinion, likelier – explanation is that the “bigotry” they describe was displayed by a county clerk who refused to grant the couple a marriage license because, once again, the State of Oregon at the time did not legally recognize same-sex marriage. Aaron and Melissa Klein were aware of this. What Commissar Avakian describes as “unlawful discrimination” by the Kleins was actually an act in which they obeyed the law as it stood at the time.

“Oregon state agencies, including BOLI, were and are places of public accommodation [under state law],” notes the couple’s appeal. “Until May of 2014, county clerks, acting as agents of the state, were openly denying marriage licenses to same-sex couples because Oregon’s Constitution limited marriage to the union of one man and one woman. Thus, it is evident that the state of Oregon itself distinguished between same-sex marriage and sexual orientation” for the purposes of public policy, just as the Kleins did for purposes of business transactions.

“If BOLI now wants to take the contrary view and hold itself to the same standard it seeks to apply to Respondents, it must confess the state of Oregon engaged in official discrimination based on sexual orientation,” the appeal continues. This would mean either that the state officials who carried out that policy would be personally liable to pay restitution to the “victims” of that policy, or that the judgment against the Kleins must be vacated.

Without using the term, the Kleins’ appeal is describing a form of “entrapment by estoppel,” a defense arising when “a government official affirmatively assures the defendant that certain conduct is legal” and the defendant acts on that assurance – only to be prosecuted for the same conduct. Where this case differs from others dealing with entrapment by estoppel (apart from the fact that it is a civil, rather than criminal, matter) is that there was no existing law that defined what the Kleins did as “unlawful discrimination.”

The BOLI, which has no legislative authority, is in the habit of inventing “law” through its own rulings – and then discarding those “laws” at the Commissioner’s whim. This is demonstrated by the fact that Avakian imposed a $135,000 penalty on the Kleins for a single act of supposedly unlawful discrimination that occurred during a ten-minute conversation.

To palliate their hurt feelings, Rachel was awarded $75,000, Laurel the relative pittance of $60,000. Avakian had originally demanded $75,000 for each of them, but the administrative law judge, exercising a particle of discretion at a time when it did no material good, reduced Laurel’s award because she wasn’t actually in the room when Aaron Klein expressed his supposedly unlawful view of marriage.

Avakian pretends that this punitive award “is consistent with [BOLI’s] prior orders.” The Kleins’ appeal points out that in a previous case the agency awarded $50,000 to a victim who was “repeatedly assaulted and threatened with a firearm,” and in another it awarded the same amount to a victim “who had been punched in the head” and “sexually harassed” over a prolonged period.

Through ideologically inspired capriciousness, Avakian concluded that hurting the feelings of someone belonging to a “specially protected class” is a graver offense than physically and sexually assaulting someone who doesn’t qualify for that status.

The BOLI, summarizes the Kleins’ appeal, invented a “novel interpretation” of Oregon’s anti-discrimination statutes in order “to stamp out dissent to a new social orthodoxy that embraces same-sex weddings….” As Aaron Cryer testified, that was “the whole reason of pursuing this case.”

If Commisar Avakian is elected Oregon’s secretary of state, he will give himself permission to stamp out dissent of many other kinds. Since he has pledged to use that office to battle “climate change,” it’s reasonable to expect that he would enlist in ongoing efforts to punish “climate deniers,” for example. He has no opponent in his re-election campaign for Labor Commissioner, and he would continue to aggrandize himself, and the powers of that office, until and unless Oregon’s long-suffering business owners do whatever is necessary to lance the BOLI boil.

UPDATE:


The day after this piece was published, The Oregonian -- a progressive newspaper that previously condemned Avakian for his "fascistic gag order" in the Sweetcakes case -- took a pin to the commissar's grotesquely inflated self-image:
"Voters would be understandably confused if they thought Brad Avakian was running not for secretary of state, but rather for governor, attorney general or perhaps a new post of progressive superhero....
The problem is that Avakian has already shown he is willing to misuse his power in order to further causes that he believes in. As labor commissioner, he oversaw a discrimination case against a Christian bakery that refused to bake a wedding cake for a lesbian couple. While he rightfully found that the bakery's owners, Aaron and Melissa Klein, had violated state law prohibiting such discrimination, he didn't stop there. Instead, he declared that the bakery owners had also violated a separate law that prohibits businesses from advertising an intent to discriminate. Among the offending statements was an interview Aaron Klein gave to a reporter in which he recounted the conversation he had with the would-be customer....

Avakian's oversized ambitions for the office are worrisome on their own. But he has the full support of several organizations that appear to embrace his concept of an activist-elected official in a position unsuited for such partisan advocacy.... When choosing a secretary of state, Oregonians should favor the candidate who is best suited to do the job he or she seeks — not the one who promises to push it in new and ideologically freighted directions for political gain."

This week on Freedom Zealot Radio --

Social Justice Warriors who seek to "reform" less enlightened people through coercion should remember that the "Who" and the "Whom" will eventually trade places -- which is why the "What" is the most important consideration:

Dum spiro, pugno!