Thursday, May 21, 2009

The Judicial Lynching – Part I – The Search of Jeane's Home

Jeane’s home was searched upon an affidavit which was improperly obtained if the rules for issuing search warrants were to be followed. Jeane was mortified at the failure of the judicial system to protect her . . . 

Under the Fourth Amendment, the government has the right to search a person’s home: “upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” In practice, as spelled out by Congress in the Federal Rules of Criminal Procedure, Rule 41(d)(2)(A), the written request under oath for a search warrant must be presented to a judge. If the written request is insufficient, the judge “may require the [government agent] to appear personally and may examine under oath the [government agent] and any witness the affiant produces.” Significantly, when the Judge examines the government agent under oath, pursuant to Rule 41(d)(2)(C), the judge is obligated to see that the “[t]estimony taken in support of a warrant must be recorded by a court reporter or by a suitable recording device, and the judge must file the transcript or recording with the clerk, along with any affidavit.”

The reasons for this are plain: The judge is suppose to issue the warrant based only upon the facts which are “supported by Oath or affirmation”. What the founding father’s wanted to avoid was the issuance of a search warrant based upon unsworn facts and/or whispering in the judge’s ear.

In Jeane’s case, the cracker-jack agent for the government, U.S. Postal Inspector Maria Couvillon appeared at U.S. Magistrate Judge Kimberly J. Mueller’s chambers with a neatly typed, 15 page affidavit in support of request for a search of Jeane’s home. The good Magistrate-Judge looked at the affidavit and said it was not sufficient to issue a search warrant. The affidavit was based almost entirely on the allegations of unidentified confidential informants. Such allegations are not sufficient to justify the issuance of a search warrant unless the confidential informants are credible witnesses. The Postal Inspector, and the assistant United States attorneys who had advised her, had forgotten to include this important statement in the affidavit.

The solution was simple. As Postal Inspector Maria Couvillon ultimately testified at the hearing to suppress the search of Jeane’s home, she added – at the direction of the Magistrate Judge – in her own handwriting the following to the affidavit: “The reliability of the informants’ knowledge of the operations of PM&A were verified by USPS money order databases; original and/or postal money order images of the money orders purchased by the informants were retrieved. In addition, the Express Mail labels used by them to send the postal money orders were also verified and retrieved.”

All that would be fine except for one point: What was the substance of the conversation between the Postal Inspector and the Magistrate-Judge. At the suppression hearing, the Postal Inspector testified:
Q. And why was that portion – or what were the circumstances under which that handwritten portion was added to this affidavit?

A. Judge Mueller had asked me a question about the reliability of the informants, and this was the response I gave to her. And she asked me to write it down in the affidavit, at which point I did, and then I initialed it.

Q. Do you know whether there was a court reporter present in her chambers? Was this in her chambers, by the way?

A. In her chambers, yes, that’s correct. And no, there was not a court reporter present.
Wait a minute. The Magistrate Judge examined the Postal Inspector and then directed the Postal Inspector how to fix the affidavit with no court reporter present to record that conversation! Rule 41(d)(2)(C) expressly prohibited such a thing and as such the search warrant of Jeane’s home was improperly issued. Yet the judge denied the motion to suppress and all the information seized from Jeane’s home was used at her trial against her.

Jeane was devastated by this ruling as it so clearly flew in the face of the rules that Jeane believed would be fairly applied to her case. In the end, this incidence of the justice system promising justice but instead protecting its own became another blow to Jeane’s psyche which – with all the other blows – finally knocked her down permanently.


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