The problem that I am seeing–I’m not arguing that a 2255 motion doesn’t formalize habeas corpus–but doesn’t 2255 only apply to a criminal matter? Contempt of court isn’t criminal even if it arises from a criminal case is my point.
habeas can also be approached from the common law.
2255 and 2254 are both HC Petitions/Motions.
2255;
(a) A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
Now, Contempt is NOT an act of Congress, but I do not know if the case law includes Contempt. That is the reason I posed the question.
Here I suppose not complying with an oder is Indirect Contempt, whther that is criminally differentiated from Direct contempt, I would have to research.
Wouldn’t there be a burden of proof on the prosecution then to *prove *that you intentionally and knowingly provided a password which would destroy the drive?
What if your drive was set up such that any incorrect password would destroy it? If it is destroyed there is no way to know if they put in the wrong password because of a typo or because you gave them the wrong password. Right? :dubious:
Couldn’t one look at the keystrokes to determine whether the password was properly entered?
There doies seem to be some wiggle room here though. Suppose you say a word with alternate spellings and the police simply assume the more popular spelling and therefore destroy the drive’s contents because they didn’t think of the alternative?
It’s the court that’s “established by Congress” not the court’s actions.
My point is that contempt doesn’t qualify as a sentence. Contempt isn’t meant to punish, it’s meant to compel a certain action.
Legal Dictionary | Law.com Definition of sentence.
compare with
Legal Dictionary | Law.com definition of contempt.
Direct contempt is meant to punish.
That’s true. But we’re concerned with indirect contempt here. Direct contempt is meant to punish bad behavior in the courtroom. Refusing a court’s orders is indirect.
Regardless, Direct contempt is still not seen as a criminal sentence.
You have to be convicted of a crime to come under 2255.
Here are some Annotations on Article 3 court’s ancillary powers, and it states that depending on the means to achieve compliance, etc., contempt can be criminal or civil and 18 USC 401 is the US Code outlining the contempt law.
…The classic criminal contempt is one where the act of contempt has been completed, punishment is imposed to vindicate the authority of the court, and a person cannot by subsequent action purge himself of such contempt. 154…
http://caselaw.lp.findlaw.com/data/constitution/article03/04.html
I knew Ohio had Contempt authorization by statute, but was not familiar with the federal courts, so I checked.
The Q remains, would 401 be an act of congress? I don’t see why not?
18 USC 401:
A court of the United States shall have power to punish by fine
or imprisonment, or both, at its discretion, such contempt of its
authority, and none other, as -
(1) Misbehavior of any person in its presence or so near
thereto as to obstruct the administration of justice;
(2) Misbehavior of any of its officers in their official
transactions;
(3) Disobedience or resistance to its lawful writ, process,
order, rule, decree, or command.
There is a difference between “criminal contempt” and “held in contempt in a criminal case.”
Elucidate!
Indirect contempt is always a civil power the court wields.
Criminal contempt is reserved for things that generally are also crimes and are Direct contempt in nature–for instance, if I jump up from the defense table, and jackslap the prosecutor. The act was criminal in nature. We differentiate this sort as “criminal contempt” because there wasn’t the ordinary procedure of criminal law–arraignment, trial, conviction, sentence–and the reason we dispense with those is that the judge saw the crime with his own two eyes; he doesn’t need all these safeguards to be sure he’s not making a mistake. The acts it covers are still basically criminal. But that doesn’t mean there has to specifically be a statute written outlawing your behavior–though I’m hard pressed to think of a direct contempt that wouldn’t have a criminal statute counterpart.
Criminal contempt is basically another way to say direct contempt.
Indirect contempt has to involve a hearing and a chance to show the court that you didn’t fail to follow the court’s orders, or that it was beyond your control to follow the court’s orders. This can arise in the context of a criminal, civil, or equitable case, just as “criminal contempt” can.
it’s the act and not the kind of case you are litigating that makes it criminal contempt (direct) or civil contempt (indirect).
Ok, I did think of one–You could be cited in direct, or criminal contempt, for wearing shorts to court against the court’s dress code, which doesn’t have a criminal statute counterpart.
Interesting anecdote this made me think of; matter of fact I did a double take like I’d forgotten my past when I reread my post with the direct contempt for shorts:
The day after I learned that the city of Wichita had a scheme substantially different than the “two-tier jury trial scheme” approved of by the U.S. Supreme court, I got caught having a couple drags off a cigarette in the bathroom of the municipal court.
Harold Flaigle was on the bench. The bailiff drug me in for smoking; I already was scheduled to appear.
Flaigle didn’t seem to care about the smoking. He was too interested in becoming angry over my argument that unless the city allowed me to opt out of their court procedure and go straight to district court where I could have a jury trial, the city had no jurisdiction to try me. (my potential sentence was greater than six months.) And he got crossed-eyed angry, let me tell you.
He threw me in the holding cell for about four hours. He brought me back in. He started talking about my unpaid fine. I started talking about lack of jurisdiction and back I went.
I was wrong because “I should have brought that argument before I was convicted.” Flaigle didn’t know that a jurisdictional argument can be raised “at any time.”
The next morning he brought me back in and didn’t talk about my fine or smoking or the fact that I was wearing shorts and sandals and a tank top. He dismissed my case.
I would have sued him personally (at the time) but for judicial function immunity. Turns out he let me go because he was convinced he didn’t have immunity where he has no jurisdiction.
This sounds like the kind of thing that should make the papers but it doesn’t. I’m only able to tell the story with all these facts a long time later.
Yes I knew the dress code. To tell the truth I wonder if I have become what I hated when I failed to remember this as an instance of direct contempt of court without a statutory counterpart.
If Flaigle hadn’t been so angry (overly emotional people don’t make good judges) he’d have been right to throw me in jail overnight for wearing shorts and sandals.
But I was right about Wichita’s two-tier jury scheme. I’ve tried five times to get them to arrest me so I could challenge this but they won’t cooperate. I have a license for crime in Wichita today, not that I push it; they just won’t prosecute me. Even for my three pound marijuana arrest in 2005. It doesn’t make sense to me; it’s the municipal court I claimed had no jurisdiction, why not take me to district court?
The treatise I wrote and mailed to the judges about pursuit of happiness and the drug war…
I wonder why I’m unusual.
I suppose, provided you are using a computer that has a keystroke recording software on it…
I kinda wish this thread would get back to this issue and maybe take the “contempt of court” issue to another thread, since it seems like it’s got legs of its own and is an interesting subject apart from this password issue.
But anyway I still have the question - if you gave the wrong password to the police, knowingly or unknowingly, and it destroyed the drive, wouldn’t there be a burden of proof on THEM to prove that you intended to destroy the evidence? How can they say with any certainty that it wasn’t their fault, or that the password was communicated wrong, or some other reason? Or maybe there was some really crappy encryption software that just didn’t behave in a very intuitive manner and the drive was destroyed because of doing something wrong because of unfamiliarity with the drive?
Yes, you are correct that the burden is one the police to prove this. I didn’t realize that not all computers would log the keystrokes.
However I think that contempt of court is a valid discussion in a thread such as this because it is the only means the court has of compelling a password. At any rate it looks settled anyway.
Can you tell me why? Recall this was about your comment of, "* I don’t think the government should be able to compel anyone to incriminate themselves in anyway. By giving a combination, whether it be safe key, safe combination, or password, you are showing ownership and control of that thing. So if the charge, for example, is child pornography, by giving the encryption code you admit that the laptop is yours and you had control over anything in that encrypted drive. That is one of the elements of the crime the police need to prove, and not something you should be compelled to admit*.
To which I asked, " Would the fact the government already knows who owns the laptop and is aware the defendant has exerted control over it, change your opinion?"
Can you tell me why the fact the government already knows who owns the laptop and is equally aware the defendant has exercted control over it doesn’t change your opinion?
I disagree. The issue is whether the conduct on behalf of the witness/suspect/defendant is testimonial, communicates a message, and is incriminating. After all, the relevant language from the 5th Amendment has an eye towards trial and prohibiting the individual from being a “witness” against him or herself in a “any criminal case.” The focus is upon the individual/suspect/defendant and whether what they are doing is both testimonial and incriminating, and if so, it cannot be used at trial if compelled by the government.
Well, since you are framing matters in terms of “For instance,” I’d like to focus upon a particular “for instance” and it is the facts of this case, which are immediately distinguishable from your “for instance” above.
First, they are not at the trial phase in this case but the investigative phase. Second, the police are already aware of A.) The suspect’s knowledge of the existence of the laptop, B.) The suspect’s knowledge of the existence of files on the laptop, C.) The suspect’s knowledge of the existence of a password protecting the files, D.) Suspect’s use or ownership of the laptop, all based on the suspect’s recorded phone conversation with her ex-husband. This combined with the fact her name is the default logon screen name, and the laptop was found in her bedroom, renders her disclosure of the password, or the encrypted files, as non-incriminating in terms of ownership/use of the laptop.
I agree with you, there are perhaps some instances in which disclosure of the password or encrypted files is incriminating, but in this *instance *, under these facts, ostensibly this is not the case.
It doesn’t mater what they “know.” Knowing something and having admissible evidence to prove it are two different things.
I missed the “during trial only” part of the fifth amendment. We apply the fifth amendment’s protections to police interrogations before trial, so I think you are clearly in error.
I guess you’re missing the point that police gather evidence FOR THE PURPOSE of presenting it at trial.
My layman’s view is that while the law can prevent me from destroying evidence, it certainly shouldn’t require me to provide evidence to them either. Let them do their job, get a warrant and find, sieze, unlock, decrypt the evidence on their own.
Actually, what they know may matter a great deal. If they already “know” the evidence exists, and know where it is located, along with being aware the individual knows where it is located, then the individual getting the evidence or granting access is not incriminating. I am interested in you articulating how exactly, under these facts and those of the case, getting the evidence or granting access constitutes as incriminating?
Nice strawman argument. I think you are in error for misconstruing my argument. There is no “guessing” when I say you clearly have missed my point and decided, perhaps conveniently, to address another point. So, let me assist you so you can properly understand my position and in doing so eradicate or abate any future endeavors on your behalf to miconstrue my position on this point.
I previously said, "After all, the relevant language from the 5th Amendment has an eye towards trial and prohibiting the individual from being a “witness” against him or herself in a “any criminal case.” The focus is upon the individual/suspect/defendant and whether what they are doing is both testimonial and incriminating, and if so, it cannot be used at trial if compelled by the government."
Quite clearly, by my own statements above, I am cognizant of the fact police gather evidence for the purpose of trial, and in addition my own comments demonstrate, rather unequivocally, if the evidence gathered is testimoninal and incriminating, then it is not admissible at trial if compelled by the government. So spare me this bullcrap strawman argument you have espoused for me.
I will say, however, under an Original Meaning of the 5th Amendment, I have serious doubts this is permissible. However, under the presently prevailing case law, this is a reasonable ruling by the trial judge.