Student submissions: a Conlaw moment
bobsheridan at earthlink.net
Sun Mar 18 11:15:13 PDT 2007
During a preliminary hearing to determine whether probable cause
existed to try a defendant for robbery and being a gang member, a
police Gang Task Force detective testified as an expert, as is
permitted, that in his opinion the defendant was an active member of
a “violent street gang,” as defined by California’s Street Terrorism
Enforcement and Prevention Act, Penal Code Sec. 186.20, et. seq.
Scales v. U.S. 367 US 203 (1961), one of the Communist Party
membership cases of the McCarthy Era, the Cold War, the Red Scares,
and the witch-hunts (see American Prometheus, by Bird & Sherwin
(Vintage, 2005), a biography of J. Robert Oppenheimer, “the father of
the atomic bomb,”) requires that membership in an outlawed group be
“active” and with specific intent to further its illegal ends, in
order to incur criminal liability. This applies today to street gangs.
Among the factors the detective cited as gang active-membership
criteria were such things as:
-wearing gang attire, embellishments, insignia, tattoos, colors,
-flashing hand signs
-associating with known gang members
As to the particular defendant I was appointed to represent, there
was a different factor. Several years earlier, while the defendant
was a high school student, the detective was summoned to the school
in response to a fight near the school among boys who were said to be
gang members. My client was thought to have been involved in that
incident. While the detective walked through a school hallway to
speak to those detained in connection with the fight, he saw some art-
posters, made by students, on the wall.
Recognizing the poster above the name of my client to contain gang-
related symbols, the detective photographed the poster and name. It
shows a yellow field on a red background on which has been pasted, or
printed, scatter fashion, in collage style, the following legends,
among others: “I am this man; I am reptile; I am wild; I am coral; I
am NORTE; I am North; I am student; I am ready; I am American..." The
large numerals 22 and 14 are prominently superimposed.
Red is the color worn by Nortenos, blue by Surenos. People have been
murdered for wearing the wrong color in the wrong district. 14 is
the 14th letter of the alphabet, “n,” for Norte or Norteno. 22
stands for 22nd street, which belongs to Nortenos. 22B stands for the
22nd and Bryant Street subgroup of Nortenos. They appear in tattoos,
on clothing, tagged on walls and buses, etc.
In Latin-American culture, gangs, according to the detective-
historian, have existed for perhaps hundreds of years. They have
devolved into a North South rivalry, with the northerners, or
Nortenos, with a tilde over the 2d ‘n,’ being the more acclimated
while the Surenos, likewise with the tilde, are supposedly the
relative newcomers. They are deadly rivals, especially in prison,
and have staked out turf on the streets of LA, SF, and other cities.
After the prelim, the defendant’s c/l wife, Estrella, the mother of
his two children, a bright, bilingual young woman of about 22 years
with a high school education who attends vocational training school,
stated resentfully that she didn’t think it was fair for the police
to have used this poster as evidence of gang membership against Alex.
As soon as she said it, I realized that she was making a Conlaw
objection, which I was able to flesh out in mind later.
“Why?” I asked.
“Because he was in school and that was a school project,” she replied.
What struck me first was that she is the one who thought of the
objection, not me, and I purport to teach the class. Obviously
there’s a sad disconnect. This, I thought, is how Conlaw gets made.
Someone, a civilian, an accused, or his friend or relative, gets
upset at the fairness of a heretofore common usage. The lawyers put
it in legal form by raising objections and supporting briefs, citing
text and cases etc. This was a Conlaw Moment for me.
Secondly, as I thought about the matter, I wondered on what legal
ground could I move to exclude this evidence at trial. What case, I
wondered, permitted the First Amendment to be used to exclude/
suppress evidence as the Fourth and Fifth Amendments are used in
cases of illegal searches and confessions obtained in violation of
Miranda or voluntariness rules.
Although the matter is now academic, as the case dealt out before
trial on non-gang-related charges, I would like to ask whether there
are cases in which evidence in a criminal prosecution has been
excluded based on academic freedom, artistic license, general
creativity or expression, or related First Amendment protected ideas?
Somehow I have the feeling that it either doesn't exist, or looms
large before my eyes and I’m not seeing it.
Perhaps the answer is that if the other amendments in the Bill of
Rights can be used to suppress evidence, why not the First? It’s
just that I’m having difficulty in pulling up the leading case, as
obvious as I suspect it may be.
Haven’t legally seized private, personal diaries been introduced into
evidence where they contain statements that might be considered by a
jury to be admissions? Even over a privacy objection? Here the
student’s poster was published on a school wall, which likely kills a
privacy objection. Does privacy reside in the First Amendment, or is
it a moveable feast, which I think Griswold suggests, in resting the
penumbras and emanations on no less than four amendments, 3, 4, 5, &
9, as I recall, but not #1.
Would it make a difference whether the art project had been required
by the school? In other words, was submitted involuntarily or in
submission to legal authority?
Should student submissions receive some FA protection against use in
criminal proceedings? In all cases? Some?
Are the statements actual admissions, or by contrast, are they simply
artistic expressions related to the young man’s worldly concerns that
don't amount to admissions per artistic license? As a matter of
law? Or fact for the hanging jury?
Suppose that gangs loom large in Alex’s mental, rational, and
emotional life and that he is mindful of their influence over his
choice of friends, manner of attire, and how he conducts himself; and
that he expresses his inner mind in a poster submitted to his school,
voluntarily or not, the way someone else might contribute a poem or
essay expressing deep feelings. For him, as a young male Hispanic,
these are life and death matters. He should be thinking about them.
Why not express them artistically? Isn't that what artists do?
I’ve seen news reports of students being hauled before authorities
for essays thought to be alarming or which seem to threaten to commit
another Columbine-like shooting massacre.
I’d appreciate any comments on or off list and offer thanks in advance.
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