Gag Reflex

It started with Arielle Lipsen walking into a DEA raid at her family’s smoke shop, Purple Zone, in Alpine, Texas. It ended, to the extent it’s anywhere near an end, with Arielle’s letter of apology, a image of which appears on the Brewster County Sheriff’s facebook page. In between, a friend of Arielle’s, Tom Cochran, posted a picture and explanation of what happened to her.

“She was having a conversation with a female agent, and trying to give the agents the lock code,” Ilana Lipsen claimed. “She was trying to tell them there was no key, but a code. There were too many officers and about half of them were doing nothing, then this one agent charged at her, threw her, kicked her legs out from under her, and when she was falling, her leg brushed up against his leg. That’s when he said ‘you’re trying to beat a federal agent’ and shoved the butt of his rifle into her neck.” (via BigBendNow)

neck injury

But after the agent alleged that the blood on the floor wasn’t hers, but his, because of her brutal attack in the midst of roomful of armed DEA agents, the Magistrate Judge B. Dwight Goains had all he could take.  Bond was granted after the detention hearing, but with a condition.

Bond Condition

The defendant shall: Will request Tom Cochran retract his blog on Facebook. Will provide a letter of apology to both local newspapers in Alpine, TX, advising DEA had a legitimate reason to execute a warrant at her business. Will advise news paper a warrant was not executed at her business because she was Jewish, owned Arabian horses, is of Turkish decent or because she visited Chinese websites. Will advise media (KWest 9 news) that her sister, Arielle Lipsen, was not beaten by agents carrying/using a M16 rifle, and her sister instigated/assaulted agents.

And thence comes the apology letter, which certainly reads as if it’s sincere.

As Eugene Volokh at the WaPo Conspiracy notes, these conditions of release are constitutionally dubious.

[I]t’s an order compelling speech, on threat of imprisonment, which would itself normally be a First Amendment violation; but on top of that, it was issued without a trial, and thus without any final factual findings supporting its validity.

Here, the conditions seem to be tied simply to correcting what the magistrate judge thinks are factual errors. But a court can’t just compel someone who hasn’t been convicted of any crime to recant her accusations against government officials. If the statements are found to be false at a trial, that might lead to damages liability or criminal punishment — or potentially even an injunction. If Ms. Lipsen is found to be guilty of some other crime, it’s possible that some speech restrictions could be imposed on her as a condition of any probation or parole (though I’m not sure that these restrictions properly can be). But absent any such trial and verdict, the bail condition seems to be a clear violation of the First Amendment.

But as much as the First Amendment concerns are important, they’re frankly secondary to a more basic concern: Magistrate Judge Goains has no authority to impose such conditions, regardless of whether they impair free speech. Yet, he did.

The basis for a bond (the fed equivalent of bail) isn’t a mystery. It’s set forth in 18 U.S.C, §3142, which authorizes the judge to pick from a menu of conditions or:

(xiv) satisfy any other condition that is reasonably necessary to assure the appearance of the person as required and to assure the safety of any other person and the community.

There are two explicit bases for bond, and any additional conditions, the return of the defendant to court and the safety of others.  Perhaps this mag thought that safety referred to potential butthurt by the agents for allegations that they were needlessly vicious?  Let’s get real. This is what is referred to as ultra vires, beyond the power of the court.

When an innocent person (recalling that there is a presumption of innocence) is being held in custody and relies on the determination of the judge for her release pending trial, the power in the hands of that judge is not merely vast, but overwhelming.  With a flick of his wrist, an utterance of a number beyond her ability to pay or the rejection of a person as financially responsible, pre-trial detention feels very much like a sentence.  The walls, cells and guards in the correctional center emit the same odor as the ones in prison.

At that moment, a person in custody is inclined to be very acquiescent in doing whatever it takes to curry favor with the magistrate, as are those who care about her and want to see her free.  The smallest slight, sense that a person in custody may present a problem that will offend the mag’s sensibilities could be enough to spell the difference between a year or two in jail pending a trial and freedom.  Nobody gives the defendant that year or two back if she wins.  It violates the First Rule of Thermodynamics, prison version.  Once spent, it’s gone forever. It is not like the First Rule of Fight Club at all.

Arielle is now out on bond, and no doubt greatly prefers to be out on bond than not.  There are any number of conditions that could have been imposed for her release. Wash the DEA agent’s car.  Mow his lawn. Disavow what happened with sufficient sincerity to undermine any chance of her using it at trial.  Maybe even confess to a crime.

But regardless of what really happened, what is the truth and what’s fulfillment of a condition so that she’s not returned to custody for rank disobedience, this bond condition raises a problem that will not go away.  Magistrate Judge B. Dwight Goains, who is employed by the District, is not life-tenured or confirmed by the Senate, but serves an eight-year term which should be up next year. The Federal Magistrates Act of 1968, 28 U.S.C. §631(I) provides for the removal of a mag who sucks.

The condition noted upon Arielle Lipsen’s bond release order goes beyond any authority possessed by Goains.  He doesn’t get to do whatever he pleases, even though he’s not subject to the same limits as God.  That he imposed such a condition for the release of a defendant demonstrates two important things. First, he cannot be trusted in the office. Second, he is a cancer that must be excised.  No one can sit in a position of power and abuse his authority this way. And if the judges of the Western District of Texas let this bond condition fester or permit Goains to come to work in the morning, then it’s disgraced Article III of the Constitution.

As much as I respect the First Amendment, flagrantly disgracing Article III is worse. It cannot stand.  It makes me want to puke.

 

 

 

24 thoughts on “Gag Reflex

  1. DD Jackson

    [More personal to you than for publication, but do as you wish — which I’m sure you would anyway. You’re bandwidth; your rules. : ) ]

    It was shortly after I discovered your blog that you wrote a piece about the increasing non-lawyer commentary to your writing. Realizing that I was a part of the plague you were addressing I’ve pretty much confined myself to solitary hyper-ventilation and ricocheting off the walls when your posts (often) make my Outsider blood boil at our systems inequities.

    I continue to read almost every one of your posts. You are now one of three writers who form my current pantheon of Internet Wisdom. And I am continually amazed at the quanity of your output and trenchant analysis of the subjects you choose to write on. ….Hardly seems you’d have any time left for any “real” lawyer-in’ over there.

    My point of writing now is to say that I think it’s a shame that analysis and explication like yours in not more available to the general public; perhaps even somehow, among all our other priorities, taught in school.

    I believe from my reading here I’m tad older than yourself and reasonably well educated. But of course as a legal outsider I have no knowledge of the issues you raise in your work. It feels to me, though, that this is a missing level of understanding linking our “Constitutional Rights” to the realities of our everyday system.

    I’m not suggesting that you do this, but with only the slightest nudge towards more “non-lawyer explanation” I could see the information/understanding you have to impart as being in invaluable book for students and the Upper School or early college level. …So much more worthwhile than the specious “Civics” classes that are doled out (or use to be).

    In any event, I’ve droned on too long in all likelihood. I appreciate you work and intelligence …. but I have a very good relationship with a local attorney should I every decide to set up an email server : )

    Best Regards,
    David Jackson

    1. SHG Post author

      Some people find me useful. Some find me awful (notice I didn’t ask who the other two writer in your Pantheon are? I fear I may not like the company I keep.). But I am here for anyone who cares to read. If a civics teacher thinks I’ve written something her students should read, she is free to direct them here. I just write. It’s up to others to decide whether to read me or not.

      I try not to make anyone stupider. I try not to let anyone else may anyone stupider. Many criticize my handling of comments, but I have my reasons. As you note, this being my blawg, my reasons always win. If someone is troubled or hurt by that, they are free to move on. Much as I may miss them, I will survive.

      On point of personal irksomeness. I’ve been called prolific by some. For this, writing the posts on this blawg are not only my therapy, but my pleasure. The come quickly and easily. I realize that other people find it hard, if not impossible, to believe that this isn’t a full time gig, but it’s just my extemporaneous ramblings, for better or worse. If someone thinks my writing worthy, then it’s a gift. If not, then it’s murdered words. But I wake up early every morning, while the house is quiet, and type if I feel like it. I almost always feel like it. Then I go to work.

      1. Brett Middleton

        So, after all these years in the trenches, you’re still so engaged that you want to puke at such an egregious attack on the Constitution. Even when it’s just that Article III stuff buried in the middle instead of our beloved Bill of Rights. Somehow, in the face of that, “thank you for your defense of the Constitution” just seems so … inadequate. But you’re just going to have to settle for that until I can find a way to add in some fireworks, hugz (manly ones, of course), and other indications of awe and delight.

        1. SHG Post author

          It was more about closure to my double entendre title, but some people never get my allusions. I feel wasted sometimes. I need smarter readers.

      2. Onlooker

        DD Jackson

        Do you seriously think that govt run/dominated schools are interested in such material being taught in the schools? You might want to think about that premise a bit. It might inform a lot of other things in your life as well.

        1. SHG Post author

          I see absolutely no reason for such an antagonistic reply to DD. His comment was aspirational. Yours is just douchy.

          1. Onlooker

            His was naive’; as displayed all to often these days by those who continue to believe in myths.

            1. SHG Post author

              Of course it was. Lots of people post aspirational comments that have little to no chance of happening. And there is no shortage of my posts that are the same. It’s not believing in myths, but hoping for better. There’s nothing wrong with hoping for better.

    1. SHG Post author

      It should have been (not appeal, but object to the district court judge assigned to the case) who has the authority over the magistrate judge. Why this didn’t happen isn’t known.

  2. Tom Cochran

    Thanks for covering this – I’m the Tom Cochran mentioned in the bond document. Your article was great, but there were a couple of fairly minor factual inaccuracies.

    The alleged assault on Arielle was a little while after the DEA broke the door down. Arielle got there before they made entry, and was attempting to give them the key code to the door, but they broke it down anyway. A few minutes later, she was standing on the sidewalk, and asked the agents why they didn’t have anything better to do, given that we’re right by the border and there are actual drug cartels operating in the area (paraphrased). The agent told her to leave (while she was standing on a sidewalk in front of the neighbors property), and she said “what are you gonna do, shoot me?” That’s when he tackled her and is alleged to have choked her with the butt of his rifle – witnesses have come forward to confirm this as well.

    Also, we’ve set up a GoFundMe for the Lipsen’s legal defense – if you’re as outraged by this as I am, please consider donating to help with the expenses:

    [Ed. Note: Link deleted per rules.]

    Thanks again for reporting on this, and feel free to email me if you have any questions.

        1. Jerri Lynn Ward

          ECLS,

          You are right. However, people can write the Chief Judge to ask that he not be reappointed in 2015. Even if that does not work, at least people have done the right thing by trying.

          Personally, I think that this also deserves church discipline, however I don’t know whether he goes to a church that disciplines its members for violating God’s law regarding the requirements for civil magistrates.

        2. Jerri Lynn Ward

          SHG,

          What would you do if you were here in Texas and admitted to this District? I have been sick all day about this and I really want to call the Chief Judge’s office and screech at somebody. However, being outwardly mature, I will refrain. Do you think that a letter campaign by citizens to remove him would have value?

          I am now old and I no longer revere any judge or the system. I used to get up in front of jury panels and tell them that our justice system is the best in the world. Because of decisions like this and other situations, could never do that again.

          1. SHG Post author

            I would hope that the TCDLA would stand up on a matter like this, and would seek to make sure that the voices were heard by having representatives of the org meet with the Chief Judge.

  3. Jerri Lynn Ward

    Regarding this: “Will advise news paper a warrant was not executed at her business because she was Jewish, owned Arabian horses, is of Turkish decent or because she visited Chinese websites.”

    Texas Monthly quoted her statement to the newspaper thusly:
    ““They link people with internet search history. I own a hookah lounge, so I’m always looking at new products, and I breed, train, and show Arabian horses, so I’m always looking at them online. I do business with China. All my e-cigarette merchandise is bought directly from Chinese distributors,” ….”

    I am looking at the affidavit from the search warrant and it appears to me that at least some of her assumptions that the judge compelled her to recant make total sense. Someone who practices criminal defense might be able to read between the lines more accurately than me.

    This makes me want to puke too. A judge forced her–upon pain of continued incarceration– to declare herself a liar before the potential jury pool. It’s just egregious.

    PS. It was Illana not Arielle who was subjected to the bond conditions. I looked it up on Pacer to be sure. So, Ilana was coerced into accusing her sister of a crime. What a can of worms for the judge and the DOJ who are charged with seeing justice served.

    1. SHG Post author

      Damn, you are right about the bond being for Illana, not Arielle. Thanks for the correction.

  4. Pingback: Magistrate Judge B. Dwight Goains and Judical Abuse of Rights | ExCop-LawStudent

  5. FERGUS O'ROURKE

    There is just one (!) aspect of this post that has me struggling to comprehend.

    As any fule kno, you are a misogynist. It is the consensus of the slackoisie, so it must be true.

    And yet, here you are speaking up, on behalf of some women you’ve never met, against the behaviour of some men. (Again, as any fule kno, that means all men).

    To my certain knowledge, no certified misogynist has ever exhibited such contradictory behaviour, which is (splutter) INEXPLICABLE.

    Can you resolve that conundrum for me, Counsellor ? 🙂

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