Practicing law without a license.
Interesting video on written law that forbids any state from limiting the practice of law, and the differences between a lawyer and an attorney.
Practicing law without a license.
Interesting video on written law that forbids any state from limiting the practice of law, and the differences between a lawyer and an attorney.
Corporations, Agents, Can not practice without license.
Unger v. Landlords’ Management Corp., 168 A. 229 (N.J. Ct. of Ch. 1933
New Jersey Court of Chancery
Filed: October 5th, 1933
Precedential Status: Precedential
Citations: 168 A. 229, 114 N.J. Eq. 68
Docket Number: Unknown
Judges: BERRY, V.C.
The bill is by the complainants Unger, a duly licensed and practicing attorney and counselor-at-law of this state, and two incorporated associations of members of the bar, on behalf of themselves and other duly licensed attorneys and counselors-at-law of this state, and seeks to restrain the defendant corporation from engaging in such activities as constitute the practice of law and from advertising or holding itself out as being entitled and authorized to engage in such activities.
That the right to practice law is exclusive in those persons regularly admitted to practice is settled by the decisions (Inre Branch, 70 N.J. Law 537; In re Raisch, 83 N.J. *Page 69 Eq. 82; In re Hahn, 85 N.J. Eq. 510; New Jersey Photo EngravingCo. v. Carl Schonert Sons, Inc., 95 N.J. Eq. 12; Black and White Operating Co. v. Grosbart, 107 N.J. Law 63) and is conceded by the defendant.
(((Comments by Hansen – What these cases do not detail is: upon what (WHERE) land does the BAR operate. US owned land, or non-US owned land.)))
It is not necessary to cite authorities for the proposition that this court has inherent power to protect by injunction rights in property from irreparable damage threatened by unlawful acts. And the right to practice law is such a property right as will be protected by injunction. In the language of Mr. Justice Field in Bradley v. Fisher, 80 U.S. 335; 20 L. Ed. 646 (at p.652):
“Admission as an attorney is not obtained without years of labor and study. The office which the party thus acquires is one of value, and often becomes the source of great honor and emolument to its possessor. To most persons who enter the profession it is the means of support to themselves and their families. To deprive one of an office of this character would often be to decree poverty to himself and destitution to his family.”
((Also we, the good old boys club, can not give the license to steal to everyone, what end would that accomplish ‘us’?))
In re O’Brien’s Petition, 79 Conn. 46; 63 Atl. Rep. 777, held that the right of an admitted attorney to practice law is property, but that the right to be admitted to an examination for the bar is not a property right. And in State v. Chapman,69 N.J. Law 464; affirmed, 70 N.J. Law 339, where the defendant was convicted of practicing dentistry without a license, the supreme court said:
“A calling, business or profession, chosen and followed, is property. Barr v. Essex Trades Council, 8 Dick. Ch. Rep. 101,112; Slaughter House Cases, 16 Wall. 36, 116.”
In this state, the right to practice law is conferred by letters-patent, issued under the great seal of the state by its chief executive. In re Branch, supra. This has been the custom from the very beginning of the Province of New Jersey. In reHahn, supra. So that attorneys-at-law in New Jersey are the holders of a franchise granted by the state, through the governor, by letters-patent, by the same authority as formerly was exercised by the British crown. 1 Pollock Maitland’sHistory of English Law 191. A franchise is a *Page 70 “royal privilege, or branch of the king’s prerogative, subsisting in the hands of a subject.” 2 Bl. Com. 37. A special privilege conferred by government on individuals and which does not belong to the citizens of the country generally by common right. Ang. A. Corp. ¶ 4. And see Bouvier’s Law Dictionary, “Franchise,””Patent.”
Since the right to practice an ordinary calling, business or profession is property (State v. Chapman, supra), it follows that the right to practice a profession conferred by the state as a franchise by virtue of what was originally the king’s prerogative, is a property right.
It is well established that this court has power to protect the holder of an exclusive franchise from irreparable injury by those not entitled to exercise such franchise. Delaware and RaritanCanal, c., Companies v. Camden and Atlantic Railroad Co.,16 N.J. Eq. 321; modified, 18 N.J. Eq. 546; Pennsylvania RailroadCo. v. National Railway Co., 23 N.J. Eq. 441; Elizabethtown GasLight Co. v.Green, 46 N.J. Eq. 118. And that the franchise is exclusive in a class rather than in an individual or corporation is no objection to relief.
Likewise, the jurisdiction of the court of chancery to enjoin a threatened irreparable injury to property, although it may involve a crime, is settled. Cumberland Glass Manufacturing Co. v. Glass Bottle Blowers’ Association, 59 N.J. Eq. 49, 56; hence it is immaterial that one who practices law without a license commits a criminal offense.
Defendant contends, however, that it does not hold itself out as being entitled to perform, nor does it threaten to perform any services for others which constitute the practice of law. Among the objects for which the defendant corporation was formed, as set forth in the certificate of incorporation, are the following:
“To transact a general real estate agency and brokerage business, including the management of estates; to act as agent, broker or attorney in fact for any person or corporations in buying, selling and dealing in real property and any and every estate and interest therein, and choses in action secured thereby, judgments resulting therefrom and other personal property collateral thereto, in making or obtaining loans upon such property, in supervising, managing and protecting *Page 71 such property and loans and all interests in and claims affecting the same, in effecting insurance against fire and all other risks thereon, and in managing and conducting any legal actions,proceedings and business relating to any of the purposes hereinmentioned or referred to; to register mortgages and deeds of trust of real property or chattels real and all other securities collateral thereto; to investigate and report upon the credit and financial solvency and sufficiency of borrowers and sureties upon such securities.” (Italics mine.)
((Note this restriction is not on man (right), but on entity (privilege). Just make sure you do, as a man, stay off US owned land, and away from any contract with the state, and court, and only aid your client, do not ever act for him, or sign for him.))
In the conduct of its business the defendant has issued advertisements containing the following statements:
“Landlords’ Management Corporation.
It is organized and incorporated to serve the individual landlord, at a very nominal cost, giving him the benefit of a large corporation affiliation where real systematic research and business methods will be used to protect his interests.
How it Operates.
As a landlord you require a certain amount of legal or real estate service in handling your tenants. You need leases drawn that protect your interests both in the care of the property involved and the rental rates, which is part of our service to you.
Rents, Distraints, Dispossessing.
During your temporary absence we will collect your rents without additional cost. We will issue distraints for non-payment of rent, and bring dispossess proceedings up to the point of starting suit.
Suits will be filed for reasonable fees plus court costs.”
Defendant says that it at no time intended to act as attorney in any suit and that in the event suits were to be started in the conduct of its business an attorney-at-law would have been engaged. But, the practice of law is not limited to the conduct of litigation and appearances in court. In Boykin v. Hopkins,162 S.E. Rep. 796, which was an action to restrain the granting of a charter to a proposed corporation, the Georgia supreme court reviewed the authorities on the subject and reached the conclusion that the practice of law is not confined to the conduct of cases in court, but includes “the preparation of pleadings and other papers incidental to any action or special proceeding in any court or other judicial body, conveyancing, the preparation of all legal instruments of all kinds whereby a legal right is secured, the rendering of opinions as to the validity or invalidity *Page 72 of the title to real or personal property, the giving of any legal advice, and any action taken for others in any matter connected with the law.”
And the appellate division of the New York supreme court has said that the practice of law “embraces much more than the conduct of litigation. The greater, more responsible and delicate part of a lawyer’s work is in other directions. Drafting instruments creating trusts, formulating contracts, drawing wills and negotiations, all require legal knowledge and power of adaptation of the highest order. Besides these employments, mere skill in trying lawsuits where ready wit and natural resources often prevail against profound knowledge of the law, is a relatively unimportant part of the lawyer’s work.” Matter ofPace, 170 A.D. 818; 156 N.Y. Supp. 641; People v. TitleGuarantee and Trust Co., 180 A.D. 648; 168 N.Y. Supp. 278. And it has been held that a collection agency which undertakes to furnish legal services where they may be necessary is engaged in the practice of law. Matter of Co-operative Law Co., 198 N.Y. 479; 92 N.E. Rep. 15; 32 L.R.A. (N.S.) 55.
It seems clear to me that the language used both in the charter of the defendant and in its advertising constitutes a holding out by the defendant that it is qualified to practice law. A most obvious instance is the offer to “issue distraints for non-payment of rent, and bring dispossess proceedings up to the point of starting suit.” To distrain for rent involves the conduct of a highly technical proceeding under the Distress act, and to bring dispossess proceedings up to the point of starting suit involves not only a proper construction of the lease, but also a knowledge of the landlord and tenant law.
The proposal that “suits will be filed for reasonable fees plus court costs” is too obvious to require comment. Defendant says that in such instances it intended to employ an attorney, but such is not the implication of the language used, nor do I believe the defendant intended the public to so interpret it.
In any event, the defendant’s excuse can avail it nothing, for since a corporation cannot practice law directly (New *Page 73 Jersey Photo Engraving Co. v. Carl Schonert Sons, Inc.,supra) it cannot do so indirectly, by employing lawyers to practice for it. The excellent expression of the New York court of appeals in Matter of Co-operative Law Co., supra, will bear repeating here for the salutary effect it may have upon similar enterprises in this state:
“The relation of attorney and client is that of master and servant in a limited and dignified sense, and it involves the highest trust and confidence. It cannot be delegated without consent, and it cannot exist between an attorney employed by a corporation to practice law for it, and a client of the corporation, for he would be subject to the directions of the corporation, and not to the directions of the client. There would be neither contract nor privity between him and the client, and he would not owe even the duty of counsel to the actual litigant. The corporation would control the litigation, the money earned would belong to the corporation, and the attorney would be responsible to the corporation only. His master would not be the client, but the corporation, conducted, it may be, wholly by laymen, organized simply to make money, and not to aid in the administration of justice, which is the highest function of an attorney and counselor-at-law. The corporation might not have a lawyer among its stockholders, directors, or officers. Its members might be without character, learning, or standing. There would be no remedy by attachment or disbarment to protect the public from imposition or fraud, no stimulus to good conduct from the traditions of an ancient and honorable profession, and no guide except the sordid purpose to earn money for stockholders. The bar, which is an institution of the highest usefulness and standing, would be degraded if even its humblest member became subject to the orders of a money-making corporation engaged not in conducting litigation for itself, but in the business of conducting litigation for others. The degradation of the bar is an injury to the state.”
A preliminary restraint will issue.
Witness Coaching by Prosecutors > See full article in > Pace Law Faculty Publications.
((The below is copied from a news article and some errors were created by the software.))
Bennett L. Gershman*
Witness coaching has been described as the ”dark”l-some
have even called it “dirty secret of the U.S. adversary system.”
It is a practice, some claim, that more than anything else has given
trial lawyers a reputation as purveyors of falsehood^.^ Witnesses
are prepared by lawyers in private, no records are kept, and the
participants do not openly discuss the encounter. Of false or
misleading testimony results, the only persons who know about it
are the participants themsel~es.~ And the capacity of crossexamination
to expose improper coaching is extremely limited?
Given its controversial nature, one would expect the practice
and ethics of witness coaching to have attracted close scrutiny by
courts and commentators. Interestingly, however, the subject has
received relatively modest attenti~n.A~ handful of judicialg and
ethics opinionsI0 have discussed superficially the subject of witness
preparation and coaching. Practitioner manuals typically offer
general guidance on how to prepare witnesses,]’ and occasionally
address tactical and ethical issues involved in coaching.12 Scholarly
commentary has examined the ethical limits of witness
preparation, particularly by differentiating acceptable techniques
from improper techniques, which promote false or misleading
testimony.13 In addition, popular culture occasionally has
dramatized the subject.I4 However, despite a discrete body of
literature devoted to witness preparation generally, there has been
very little discussion by courts and commentators on witness
preparation and coaching by prosecutor^.’^
The absence of critical examination of witness coaching by
prosecutors is puzzling for two reasons. First, there is an
increasing concern among courts, lawmakers, and commentators
that some prosecutors use the adversary system not to serve truth,
but for self-serving purposes.16 According to thls view, the conduct
of some prosecutors in investigating cases and preparing witnesses
to give testimony is undertaken not to ascertain, present, and
protect the truth, but rather to manipulate the truth in order to
secure a conviction.
Second, there is an increasing concern-amply documented
by recent reports of wrongful convictions-that the criminal justice
system is seriously prone to error.” Critics contend that these
errors are attributable to defects in the adversarial trial process,
mostly from incompetent representation by defense lawyers and
trial errors by prosecutor^.^^ However, recent disclosures suggest
that the origin of many, perhaps most, of these miscarriages of
justice occurs before the cases actually reach the courtroom for
trial. Indeed, the inability of criminal trials to produce accurate
results may be attributable in many cases to techniques used by
prosecutors to prepare, shape, and polish the testimony of their
Absent any contemporaneous record of a prosecutor’s pretrial
interaction with witnesses,19 it is exceedingly difficult for observers
to investigate the preparation process to ascertain the extent to
which prosecutors or police may have improperly influenced
witnesses overtly, covertly, or even unwittingly to give false or
misleading testimony.20 Moreover, the difficulty of analyzing the
witness-preparation process is compounded by the failure of courts
and prosecutors to recognize or appreciate how cognitive factors
such as memory, languages, and suggestion can affect the
accuracy and truth of a witness’s testimony.
Given the secrecy surrounding the prosecutor’s preparation of
her witnesses and the inability to review the process meaningfully,
it is virtually impossible to ascertain whether and to what extent
witnesses have been coached by prosecutors and police to give
false or misleading testimony. Nevertheless, inferences can be
drawn from cases, commentary, and empirical evidence to
illuminate this murky process. First, it is indisputable that some
prosecutors coach witnesses with the deliberate objective of
promoting false or misleading testimony. Prosecutors do this
primarily to (1) eliminate inconsistencies between a witness’s
earlier statements and her present testimony, (2) avoid details that
might embarrass the witness and weaken her testimony, and (3)
conceal information that might reveal that the prosecutor has
Additionally, prosecutors have the ability, consciously or
unconsciously, to strengthen the case by questions and suggestions
that cause the witness to fill gaps in memory, eliminate ambiguities
or contradictions, sharpen language, create emphasis, and alter
demeanor. Some witnesses, moreover, are vulnerable to
prosecutorial suggestions, or receptive to prosecutorial cues.
Indeed, the prosecutor’s interaction with the cooperating witness is
a paradigmatic example of the dangers and abuses of coaching.
Finally, the absence of any contemporaneous record of the
prosecutor’s preparation of witnesses encourages improper
coaching by hiding the process from meaningful oversight by
courts or defense counsel. Without some basis to believe that
coaching occurred, a court would not invoke prophylactic
safeguards to detect or prevent coaching. And absent any
documentation of the witness-preparation process, the defense
lawyer has no basis to challenge the witness’s testimony as the
product of improper conduct by the prosecution.
A. Incentives for Coaching
1. Eliminate Discrepancies
A prosecutor bent on obtaining a conviction may attempt to
eliminate any significant inconsistencies in a witness’s testimony.
Some prosecutors overtly influence their witness to alter
materially an earlier, inconsistent version. In Kyles v. Whitle~a, ~~
capital murder case, the prosecutor elicited testimony from Isaac
Smallwood, a key eyewitness who gave an extremely detailed
description of the killing. Smallwood claimed he saw Kyles
struggle with the victim, produce a small, black .32 caliber gun
from his right pocket, shoot the victim, and then drive off in the
victim’s LTD.25 The prosecutor argued to the jury: “Isaac
Smallwood, have you ever seen a better witness[?]”26
However, in a statement Smallwood made to the police
shortly after the killing, which the prosecutor did not disclose to
the defense, Smallwood gave a vastly different account of the
crime. He told the police that he did not see the actual killing, did
not see the assailant outside the victim’s vehicle, and saw the
assailant for the first time driving toward him in a Th~nderbird.~’
The U.S. Supreme Court reversed the conviction because the
prosecutor violated his constitutional obligation to disclose this
information to the defense.28 The majority opinion, however,
noted how Smallwood’s original story apparently had been
“adjust[ed]” by the prosecutor by the time of the Disclosure
of the earlier statements, the majority observed, not only would
have “destroyed confidence in Smallwood’s story,” but also would
have “rais[ed] a substantial implication that the prosecutor had
coached him to give it.”30
A major incentive for prosecutors to use cooperating
witnesses is to support an uncertain but consistent version of the
facts, rather than to confirm an inconsistent version of the facts
that may represent more of the truth.” As an example, one writer
describes a proffer session in which a cooperating witness has
identified several people as being present at a meeting to
distribute The witness fails to identify a particular
individual as being present. The prosecutor, however, firmly
believes from other evidence that this person was present at the
meeting. When asked specifically whether this person was present,
the witness repeats that he was not present. The witness is asked:
“Are you telling me that [he] was not there?” The witness now
knows what the prosecutor wants to hear. After a break, when the
witness is asked again, he now remembers that this individual was
2. Avoid Embarrassing Details
Some prosecutors attempt to influence the testimony of
witnesses to conceal information that might embarrass the witness
and weaken the prosecutor’s case. As a consequence, the witness
may be coached to give testimony that may be literally true but
creates a false or misleading impression, while allowing the
prosecutor to avoid a charge of outright solicitation of perjury.
One method of evasion is to instruct the witness to claim a lack of
memory or knowledge about a question that may be embarrassing
or otherwise harmful.” A prosecutor might reinforce this subtle
message by reassuring the witness that while he has a duty to
answer every question truthfully, an answer such as “I don’t know”
or “I don’t remember” is a perfectly acceptable response when the
witness is not absolutely certain of the answer.34
Another strategy of concealment is to instruct the witness to
answer only the question asked, and not to volunteer
informati~n.~A~n example is Alcorta v. Texas,3Yn which the
Supreme Court reversed the defendant’s murder conviction for
stabbing his wife to death. The defendant admitted the killing but
claimed it occurred in a fit of passion after discovering his wife,
whom he had already suspected of marital infidelity, kissing one
Castelleja late at night in a parked car. Castelleja, the only
eyewitness to the killing, testified that his relationship with the
deceased had been nothing more than a casual friend~hip;~an d
that he had driven her home from work on the night she was
However, during pretrial preparation, the witness told the
prosecutor that he had had sexual intercourse with the defendant’s
wife on five or six occasions shortly before her death. This fact, if
known or believed by the defendant, would have provided the
defendant with a powerful motive for the killing. The prosecutor
advised the witness that he should not volunteer any information
about sexual intercourse but if specifically asked about it, to
answer truthf~lly.T~h~e prosecutor’s questions at trial, as reflected
in one significant colloquy, were obviously designed to allow the
witness to give literally truthful answers about his relationship with
the deceased while carefully avoiding the subject of his sexual
conduct with the de~eased.~’
3. Conceal Suppressed Evidence
A prosecutor may be motivated to engage in improper
coaching to prevent the revelation of material information that the
prosecutor did not disclose to the defense as required by due
process.”O Needless to say, a prosecutor who is predisposed to
violate his constitutional and ethical obligation to disclose
favorable evidence to a defendant is also capable of molding her
witness’s testimony to protect the nondisclosure from being
discovered.” Indeed, it is arguable that every case in which a
prosecutor deliberately conceals exculpatory evidence from the
defense may also involve an effort by the prosecutor to coach the
witness’s testimony to hide the suppression.
In Walker v. City of New Y~rkf,o~r e~x ample, a prosecutor
almost certainly coached a cooperating witness to give false
testimony to conceal from the defense information that would
have undermined the witness’s credibility. Walker describes a
prosecutor’s debriefing and preparation of a cooperating witness
in an investigation of the robbery of an armored truck and murder
of the truck driver. At the initial proffer session, the witness
identified two individuals as having participated in the crime. The
prosecutor subsequently learned, however, that one of these
alleged accomplices could not have committed the crime because
he was in prison on the date of the robbery. Undeterred, the
prosecutor elicited testimony from the cooperator in the grand
jury and at trial that did not mention a second accomplice. The
decision by the Second Circuit condemned the prosecutor’s failure
to disclose the inconsistency. The court did not discuss the reason
for the witness’s failure to mention the existence of a second
perpetrator, an omission that undoubtedly resulted from careful
coaching by the prosec~tor.~~
B. Cognitive Factors Facilitating Coaching
An extensive body of scientific literature holds that memory is
highly fallible, and the process of memory retrieval and
reconstruction extremely fragile.44 The perception of an event
typically does not leave a single, clear image; it is heavily
influenced by a variety of factors, including the manner in which
the memory is sought to be retrie~ed.M~~an y studies describe the
distorting effects of suggestive q~estioning.~W~h ereas witness
preparation certainly can assist a witness in remembering and
retrieving a truthful recollection, preparation also can distort a
witness’s underlying memory and produce a false rec~llection.~~
And because of the complex nature of memory, it may be difficult
for the witness himself to distinguish between a genuine
recollection of a previously unrecalled fact, and an imagined
recollection based on suggestions from the inter~iewer.~~
Many prosecutors do not appreciate the dangers associated
with retrieving a memory of an event.49 A prosecutor, through the
use of questions and suggestions has the ability to influence a
witness to remember facts and fill gaps that may be inaccurate, but
which the witness may come to believe is the truth.50 In addition,
because of the prosecutor’s unique status as the attorney for the
government, she ordinarily is viewed by the witness as a highly
knowledgeable official who can be trusted to use the facts
re~ponsibly.~’ Indeed, because of the prosecutor’s power and
prestige, the witness may try to conform his recollection of the
event to what the witness believes the prosecutor wants to hear.52
Experts and courts recognize that facts are slippery, and the
process of memory retrieval can be treachero~s.~”~ Justice
Stevens noted in Nix v. White~ide;~ “facts” often are highly
ambiguous and uncertain. To an appellate court after a case has
been tried and the evidence sifted by others,
a particular fact may be as clear and certain as a piece of
crystal or a small diamond. A trial lawyer, however, must
often deal with mixtures of clay and sand. Even a pebble
that seems clear enough at first glance may take on a
different hue in a handful of graveless
And to experts who have studied the psychology of human
memory, a witness’s recollection of an event is a delicate amalgam
that is retrieved, reconstructed, or imagined from this combination
of clay, sand, and gra~el.~”
The potential for witness coaching by prosecutors and police
to alter memory is powerfully illustrated in the Supreme Court’s
decision in Strickler v. Greene.57 In Strickler, a capital murder trial,
a key prosecution witness, Anne Stolzfus, initially told police that
she had only “muddled memories” about a kidnapping in a mall,
and could not identify the perpetrators, the victim, or the
automobile.~A~t trial, however, Stolzfus gave astonishingly
detailed testimony about the event.5y She gave a detailed
description of all three perpetrators? the victim:’ and even
remembered the license plate number of the van.62 Denying the
suggestion that she had learned these details from news reports,
she answered, “I have an exceptionally good memory.”63
‘The process by which Stolzfus’ memory improved so
remarkably, however, was revealed in a series of documents
prepared by a police detective, which were never disclosed to the
defense.@ These documents were based on interviews between
Detective Claytor and Stolzfus in which her memory continued to
expand over time because, she claimed, of “the associations that
[Detective Claytor] helped me make.”65 The Supreme Court
addressed whether the prosecutor violated his constitutional duty
by not disclosing these statements to the defense. The Court
found no violation.66 The Court never discussed the other
important question, i.e., whether the prosecutor and police
encouraged Stolzfus to reconstruct her memory to accord with the
government’s theory of
2. Language and Communication
Prosecutors may attempt to fill gaps by asking questions,
making statements, or displaying evidence that highlights specific
facts.” Indeed, several former prosecutors found it “disturbing”
and “dangerous” that so many prosecutors gave facts to
cooperating witnesses in the course of eliciting information from
them.69 Moreover, the language used by a prosecutor in
communicating those facts to the witness may significantly
influence the witness’s responses. Experts have shown that using
specific words in a question can distort a witness’s recollection or
recounting of an event.70 For example, asking a witness whether
he saw “a” car is much less suggestive than asking the witness
whether he saw “the” car.7′ Similarly, asking the witness whether a
person “smashed” another’s face may produce a decidedly
different response than asking the witness whether a person “hit”
the other person.72
Prosecutors have the ability by their choice of language to
telegraph to the witness specific facts that the prosecutor wants the
witness to say. For example, when a witness initially is uncertain
of the identity of persons who were present at a critical meeting, a
prosecutor could properly try to refresh the witness’s recollection
by asking him whether a named person was present.73 However, if
the witness continues to express doubt, a prosecutor who focuses
repeatedly on whether that person was present is ultimately going
to convey to the witness the prosecutor’s expectations and the
witness eventually will get the message and say it.74
Many prosecutors appear to be unaware of the extent to
which they express verbally or non-verbally a genuine interest in
certain facts, or communicate disappointment when the witness
does not know particular facts, and thereby tip off the witness to
what they want him to say.75 Some prosecutors are not subtle
about this type of communicative message. A prosecutor, for
example, might signal to a cooperating witness, either explicitly or
implicitly, that he is not helping himself by omitting certain details.
According to several former prosecutors, the witness “somehow
now for the first time . . . finds information that helps the
Presuppositions or assumptions in questions also can create a
false recollection. For example, after being intensively questioned
by the prosecutor about whether the target of an investigation
displayed a gun, the witness might acknowledge that he
remembers a gun because the story has become implanted in his
mind as a fact, either because he heard about it from others rather
than observing it firsthand, or because the prosecutor strongly
suggested the fact.77 Asking a witness to retell an event over and
over may convince the witness that his story is true.78
There are several communicative techniques that interviewers
use to shape a witness’s testimony.79 Among the most common are
asking leading questions,80 showing a witness a document to
refresh her recollection,R1 informing a witness of what another
witness has said about the incident,x2 and giving the witness a
lecture on the consequences of saying one thing or another.83
C. Dangerous Witnesses
Some witnesses are especially vulnerable to coercive or
suggestive interviewing techniques. The most susceptible of these
witnesses are (1) children, because of their immaturity and
impressionability; (2) identification witnesses, because of the
inherent unreliability of eyewitness testimony; and (3) cooperating
witnesses, because of their enormous incentives to falsify or
Some witnesses are especially vulnerable to suggestive
interviewing techniques. A familiar and frequently cited example
is the testimony of young children in sexual abuse cases. Many
instances of wrongful convictions are attributable to the testimony
of child witnessesx4 Courts have increasingly scrutinized the
reliability of the testimony of young children for coercive or
suggestive pretrial interviewing techniq~es.~F~o r example, in
Idaho v. the Supreme Court found that a child’s
accusation of sexual abuse was based on suggestive and leading
questioning by an interrogator who had a preconceived idea of
what the child should be disclo~ing.~A~d ditionally, courts have
also focused on the absence of spontaneous recall, the bias of the
interviewer, the use of leading questions, multiple interviews,
incessant questioning, vilification of the defendant, ongoing
contact with peers and references to their statements, and the use
of threats, bribes, and cajoling.88 Courts have also noted the failure
to videotape or otherwise document the initial interview ses~ion.~”
2. Identification Witnesses
Identification witnesses are among the most unreliable
witnesse~.~A s noted above,gl these witnesses may adapt their
testimony to what they believe accords with the prosecutor’s
expectations. Prosecutors may also attempt to “adjust” the
testimony of these witnesses to strengthen the probative impact of
their identifi~ation.~T~h ese witnesses may add facts to their
memory that appear to the witness to be an accurate reproduction
of what the witness originally perceived. This process of “memory
adjustment” is exemplified by the testimony of Ann Stolzfus in
Strickler v. G1-eene,9a~n d Isaac Smallwood in Kyles v. Whitle~.~~
This adjustment often involves the testimony of identifying
witnesses that the prosecutor knows is factually weak or
unreliable, but is presented to the jury with an aura of certainty
The testimony of several eyewitnesses in the murder trial of
Randall Dale Adams, memorialized in the film documentary The
Thin Blue Line,” offers a dramatic commentary on the dangers of
testimony of identification witnesses. Three rebuttal witnesses-
Emily Miller, her husband R.L. Miller, and Michael Randalloffered
critical testimony identifying Adams as the killer.97 The
testimony was given confidently, with some bravado. However, as depicted in the film, these witnesses appeared to have given
contrived testimony that probably was the product of coaching by
the prose~utor.In~d~e ed, these witnesses’ subsequent narrations of
their accounts of the incident for the camera-a starkly revealing
portrait that captures their venality and deception-is a
devastating commentary of the artificiality of courtroom testimony
and how a prosecutor’s apparent coaching produced a terrible
miscarriage of justice.
3. Cooperating Witnesses
The cooperating witness is probably the most dangerous
prosecution witness of all. No other witness has such an
extraordinary incentive to lie. Furthermore, no other witness has
the capacity to manipulate, mislead, and deceive his investigative
and prosecutorial handlers. For the prosecutor, the cooperating
witness provides the most damaging evidence against a defendant,
is capable of lying convincingly, and typically is believed by the
The prosecutor’s pretrial coaching of cooperating witnesses is
vulnerable to many of the potential abuses noted above. The
cooperating witness is (1) easily manipulated by coercive and
suggestive interviewing techniques; (2) readily capable of giving
false and embellished testimony with the prosecutor’s knowledge,
acquiescence, indifference, or ignorance; (3) readily capable of
creating false impressions by omissions or memory alterations that
in the absence of any recordation or documentation eludes
disclosure and impeachment; and (4) able to present his testimony
to the jury in a truthful and convincing manner, which because of
the nature of the cooperation process is difficult to impeach
A prosecutor has a powerful incentive to accept a
cooperator’s account uncritically.lOl Many prosecutors, if they are
candid, will admit that in some cases they really do not know
whether the cooperator is being truthful or dishonest. This is
particularly the case when a prosecutor lacks evidence to
corroborate the cooperator’s account. Moreover, some
prosecutors have a predetermined view of the facts of a case that
constrains their ability or willingness to assess the cooperator’s
credibility objectively. They may have a theory of the case that
they developed from other evidence or from reliance on the
opinion of the case agent. These prosecutors believe that theory
to be true, and to the extent that the cooperator’s version is
inconsistent with this theory, the prosecutor may conclude that the
cooperator is lying or withholding information.
Cooperators are manipulative, and some prosecutors can be
easily manipulated. Some prosecutors trust their cooperators too
much–one former prosecutor described the relationship as
“falling in love with your ratv-and this mindset skews the
prosecutor’s ability to evaluate the cooperator’s credibility
objectively. These prosecutors may neglect to probe the
cooperator’s story or background intensively to uncover
inconsistencies or outright lies. A recent illustration is United
States v. W~llachi,n~ w~h~ic h a key cooperating witness, Anthony
Guariglia, gave perjured testimony about his gambling habits that
the prosecutors could easily have checked but did not.Io3
Moreover, some prosecutors have a cramped view of their
ethical duty as ministers of justice. They believe that serving
justice means getting convictions and putting bad people in jail.lW
This mindset may be particularly noticeable with younger
prosecutors, whose experience is confined to administering the
federal sentencing guidelines. These prosecutors have been
described as “Guidelines babies.”lo5 They often exhibit a
“mechanistic” and “hardened” view of justice.Io6 They perceive
themselves as cops, and exude a “macho” persona wherein “[tlhey
don’t ask what’s the right thing to do. They just want the right
Cooperators appreciate that their value depends on giving the
prosecutor “what they want to hear.”los This message is “drummed
into defendants at the MCC (Metropolitan Correction Center)
that you have got to have good information for the go~ernment.”‘~~
Many professional participants in federal criminal practice believe
that the Federal Sentencing Guidelines, particularly by their ability
to confer unprecedented and enormous rewards on cooperators
who provide law enforcement with “substantial assistance,” create
a powerful incentive for cooperators to exaggerate and falsify
Moreover, some cooperators may not even appreciate the
difference between truth and untruth. Cooperators frequently
come from alien environments of crime and deceit that produce a
mindset, according to some prosecutors, that “[tlruth equals what I
know or what I can be caught at.””‘ Cooperators do not share the
prosecutor’s “obsession with exact facts.”112T hey use language in
a loose, non-literal fashion that allows them to make false or
exaggerated assertions that they might believe to be true. They
might assume, for example, that if they have knowledge of certain
information, it is immaterial how they came to learn it, whether
through personal observation or based on what they may have
Detecting coachmg is difficult for two reasons. First, there
typically is no verbatim record or other significant documentation
of the interview session. What occurs in this private encounter is
known only to the prosecutor and witness. Second, crossexamination
has a very limited capacity to expose improprieties in
the preparation process. Preventing coaching typically rests on the
integrity and sense of fairness of the individual prosecutor.
Preparation of witnesses, when done properly, is an essential
means of readying the prosecutor and witness for adversarial
testing. By working closely with the witness, the prosecutor is able
(1) to ascertain the truth fully, fairly, and objectively, (2) present
the truth, as she honestly ‘understands it, in an accurate, fair, and
effective manner, and (3) protect the truth from being discredited
and distorted by adversarial attack. These truth-serving goals,
while applicable to all lawyers, would seem to be most clearly
applicable to prosecutors who are unique among lawyers in their
ethical obligation to seek justice rather than merely gain a partisan
However, for those prosecutors who do not view their role as
ministers of justice, prophylactic procedures may be necessary to
protect the fact-finding process from improper influences. These
procedures might include: (1) a pretrial taint hearing to expose
witness contamination; (2) expert testimony on memory and
suggestive interviewing techniques; and (3) recording interview
sessions for in camera judicial inspection.
Witness preparation is done in private. Since there are no
audio or video recordings of the interview process, there is
virtually no way of learning precisely what transpired during the
preparation session. Neither the. witness, the police, nor the
prosecutor will readily acknowledge improper coaching. Nor is it
the practice of prosecutors or police to prepare extensive written
or recorded evidence of the interview that might shed light on
whether the witness was coached.I1To be sure, documentation of
the preparation process, if available, might reveal overt attempts
to shape the witness’s testimony. However, documentation would
not expose subtle cues that might produce false or misleading
testimony that are attributable to a witness’s own “suggestibility,”
“confabulation,” and “memory hardening.”Il6
A prosecutor is legally required to disclose to the defense, for
impeachment purposes, pretrial statements that a government
witness made to the prosecutor, police, or other government
agent.”‘ However, the prosecutor is able to limit the availability of
such statements by a variety of tactics. First, neither the police nor
the prosecutor has any legal obligation to take notes.118 Some
agents as a matter of policy do not take notes specifically to avoid
creating contradicting evidence.lIy Some prosecutors do not
encourage note-taking, and occasionally even forbid government
agents from taking notes.Iz0 According to one former prosecutor,
“[t]hereYsa certain unconscious arrogation of power about it
Another former prosecutor stated: “[Tlhe office lore is don’t take
too many notes or figure out how to take notes so that they are
meaningful to you and no one else. You don’t want a complete set
of materials that you have to disclose.”lZ2 Prosecutors and their
agents typically do not prepare extensive notes, and when they do
take notes, they try to do it in a safe way that avoids discl~sure.’~~
Thus, notes of significant comments, contradictions, and
inconsistencies by a government witness are exempt from
disclosure unless the notes are “a substantially verbatim recital of
an oral statement made by said witness to an agent of the
government and recorded contemporaneously with their making
of such oral statement.”124 These notes may be withheld from the
defense even if they contain significant impeachment evidence
when it is shown that the notes are selections, summaries, or
interpretations by the government agent.125
Also, it is not uncommon for a government witness to be
interviewed by a prosecutor after the witness has been intensively
debriefed by the police. If the police do not take notes, or if they
do not disclose their notes to the prosecutor, the prosecutor may
never know what the witness initially told the police, whether the
witness’s initial account changed, or the extent to which the story
was shaped or polished by police during the initial interview
session. If the police employed the kinds of suggestive or coercive
techniques described above, and absent any available record to
document such conduct, it is unlikely that a prosecutor’s
subsequent probing could effectively recreate the circumstances to
demonstrate any improper influence on the witness’s subsequent
testimony. Moreover, as noted above, the witness herself may be
unaware of the subtle techniques that may have influenced her
B. Cross- Examination
Cross-examination is assumed to be the most important
adversarial safeguard to discovering the truth.lz7 However, there is
no empirical basis for this assumption.128 In Ceders v. United
States,Iz9 the Supreme Court observed that skillful crossexamination
is a vital safeguard to uncovering improper
preparation and coaching of witnesses. The Court assumed that
the line between ethical pretrial preparation and unethical
coaching is easily defined,I3O and that interrogation of the witness
by opposing counsel could disclose improper influences. However,
given the subtle ways that a witness’s testimony can be
manipulated, it is highly unlikely that cross-examination will
First, one of the cardinal precepts of cross-examination is to
avoid asking questions of which the examiner does not know the
answer.’32 Thus, lacking a factual basis to believe that a witness’s
memory has been manipulated, that an “I don’t remember” is false
or misleading, or that a failure to mention an incriminating fact is
the product of improper coaching, it is unlikely that a crossexaminer
would focus on the discrepancy, or be able to prepare an
effective impeaching strategy about something of which he is
ignorant.133 Moreover, even if a witness’s testimony has been
improperly influenced during the coaching session, the opposing
counsel would have no basis to believe that the witness’s clear and
convincing testimony is the product of an altered memory.
Indeed, as noted above, it may often be the case that the witness
herself is unaware of any improper infl~ence.’~~
Additionally, although it is commonly recognized that the
testimony of a cooperating witness is inherently suspect, and that
the process of preparing and coaching the cooperating witness can
impair the integrity of the truth-finding process, cross-examination
is made even more difficult when the cooperating witness has been
carefully coached to testify that any benefit is speculative,
uncertain, and contingent upon his giving truthful testimony in
accordance with his cooperation agreement.’35
C. Protocol for Witness Preparation
There is nothing wrong with a prosecutor assisting a witness
to give testimony truthfully and effectively. However, under their
obligation to serve justice, prosecutors should be able to regulate
their own conduct to insure that witnesses are not exposed to
suggestive questioning that may create false or misleading
testimony. Prosecutors should be trained and supervised in
interviewing protocols, the vulnerabilities of certain witnesses, and
the psychological literature relating to memory, language, and
The following is a protocol for witness preparation by
prosecutors. It is based largely on this writer’s experience as a
prosecutor. It differs in several important respects from advice
contained in practitioner-oriented publications typically addressed
to civil litigation attorneys.i37 In preparing a witness for testifying
at trial, a prosecutor should:
1. Demand Truth
Advise the witness to tell only the truth as he knows it, not
what he thinks he knows, or what someone else knows.’38 Advise
the witness not to embellish facts, or fill in gaps of memory, and
that if he does not remember something, to say
2. Be Objective
Evaluate the witness’s story objectively to determine its
accuracy and believability. Ask open-ended questions initially,
and use more specific questions after the witness has given a
complete account of the event.I4O Never put words in the witness’s
mouth or suggest answers.I4′ Know as much as possible about the
witness’s background and any interest the witness might have to
falsify, and probe these areas carefully without suggesting any
Explain courtroom procedures, where the witness will sit, and
the order of q~esti0ning.lD~o~ not advise an identification witness
where the defendant will be sitting.'” Advise the witness to speak
in a loud, clear voice so the jurors can hear what is being said, and
to make eye contact with the jury when appr~priate.’A~d~v ise the
witness to sit straight, avoid distracting body language, and dress
4. Rehearse Direct Examination
Write out direct examination questions ahead of time and
rehearse specific questions with the witness.'” The witness should
be encouraged to use his own words whenever possible, and not to
use slang or offensive expressions.14′ Control the witness’s answers
to the extent of preventing the witness from giving long, rambling
narratives, and ensure that the witness does not violate rules of
evidence. If tangible evidence is being introduced, show the
evidence to the witness and go through the process of laying the
foundation. Have the witness do whatever demonstration he will
be asked to do in the courtroom.
5. Reconcile Inconsistencies
Cautiously try to reconcile the witness’s testimony with other
evidence. This may include prodding the witness’s recollection
with prior statements that the witness made, or referring to other
facts in the case, including the testimony of other witnesses.14s
Never suggest what a witness should say, or telegraph what the
witness should say, by revealing inconsistencies or weaknesses in
the witness’s te~tim0ny.I~R~ev iew the witness’s prior testimony
with the witness, but do not allow the witness to read any prior
testimony unless absolutely necessary.150
6. Prepare Cross-Examination
Prepare for cross-examination by going through all
discrepancies in the witness’s prior testimony or other
statements.I5l Try to ensure that the witness can correct or explain
each discrepancy. Go through a witness’s criminal background
and any interest the witness may have in testifying. Make sure that
the witness acknowledges prior convictions and bad acts. A
witness should be encouraged not to volunteer information, to
limit answers as much as possible to “yes” or “no,” not to guess or
embellish an answer, to make an effort to remember, and not to be
afraid to acknowledge a mistake.152T he witness should be told not
to look at the prosecutor during cross-examination, not to answer
a question when the prosecutor stands up to object, and to answer
in a positive tone if he is asked whether he spoke to the police or
prosecutor about the case. A prosecutor should do a mock crossexamination
with the witness to anticipate what defense counsel
will likely ask.153
1. Pretrial Taint Hearing
A pretrial “taint” hearing should be required when there is
some basis to believe that a witness’s testimony has been
improperly influenced by suggestive or coercive interviewing
techniques. Such a hearing is not unusual. It has been authorized
in many instances in whlch police or prosecutorial conduct has
placed the integrity of the fact-finding process into question and
there is a need for the procedural protection of a pretrial hearing
to exclude from a potential prosecution the prejudicial effects of
tainted evidence. Thus, pretrial hearings have been employed to
determine the admissibility of in-court identification testimony
because of pretrial suggestivene~s,s~ta~t~em ents of children in
sexual abuse cases,Is5 hypnotically-recalled in-court testimony,lS6
breathalyzer evidence because of prior falsified police breathalyzer
reports,ls7 and evidence following police investigatory
A pretrial taint hearing into the reliability of a witness’s
testimony based on pretrial suggestiveness should consider all
relevant circumstances, including any inconsistency between a
witness’s statements, the interest or motivation of a witness to
falsify, the presence or absence of corroboration, the nature of the
corroboration, the inherent believability of the statements, the
existence of any documentation of the debriefing and preparation
sessions, the rewards and other inducements to testify, the scope of
punishment to which a cooperating witness may be exposed in the
absence of cooperation, the manner and form of the questioning,
the number of interview sessions, and the person or persons
present when the statements were made.
Defense counsel, in order to obtain a pretrial hearing, would
have the burden initially of making some factual showing that a
witness has been subjected to improper conduct by the prosecution
that has caused the witness to adjust his testimony. In making its
determination, a court should consider whether, under all the
circumstances, the interview and preparation sessions give rise to a
substantial likelihood of false, inaccurate, or misleading testimony.
2. Expert Testimony
Given the capacity of the witness-preparation process to
produce false or distorted testimony, courts should allow experts
in cognitive psychology to testify how memory, language, and
communication can produce false, inaccurate, or misleading
testimony.Is’ Rule 702 of the Federal Rules of Evidence authorizes
the use of scientific testimony by an expert to assist the jury in
understanding the extent to which suggestive influences in the
debriefing and coaching of witnesses may produce false or
inaccurate testimony.160 AS now occurs with eyewitness
te~tirnony,’t~h~e expert could identify the factors that influence
perception and memory, the extent to which witnesses are
susceptible to suggestive influences, and how pretrial interviewing
techniques are likely to produce false, inaccurate, or embellished
te~tirn0ny.lC~~on trary to the belief of many jurors, an expert could
testify that there is no necessary correlation between a witness’s
confidence and the accuracy of her te~tim0ny.l~E~xp erts could
also counter a belief held by some jurors that witnesses have a
better memory for dramatic events.16″
To enable the defendant to challenge the veracity of the
witness effectively, and a jury to assess his credibility, all
interviews with potential trial witnesses should be electronically
recorded either by audio or videotaping. Videotaping would be
preferable to sound recording as it would depict the physical
interaction and body language of the participants. The use of such
a procedural safeguard is unusual, but hardly novel. Videotaping
of interview sessions with child witnesses is not
Moreover, videotaping has been used when it is important to
document whether the government used unfair tactics to produce
evidence, such as a defendant’s confession,16o6r for interrogations
conducted before and after hypnosis.I6′
Recording the interview session is essential to disclose the
presence or extent of the different types of suggestive influences
discussed above. Taping would reveal overt attempts to influence
the witness’s testimony by use of leading questions or other cues
that alert the witness to the expected answer. Whereas recording
of the sessions would not necessarily reveal whether a witness’s
story was a fabrication from the start, it might demonstrate
whether the witness embellished his story to please the
government or filled in details to make the story more complete or
persuasive, and the extent to which his story crystallized and
became more confident over several interview sessions.
It may be that courts should have the authority to conduct an
in camera inspection of the recording, and preclude the use of any
portions that contain embarrassing or sensitive material. To be
sure, a prosecutor could properly seek to preclude from disclosure
statements by a cooperating witness that might compromise an
ongoing investigation. A court also could limit the use of the
recorded interview session to those portions that reveal that a
witness is trying to please the interviewer, confabulating the story
by appearing to fill in details to make the story more coherent and
complete, or demonstrating memory “hardening” by appearing to
suddenly and confidently remember new details.
The preparation of witnesses for testimony at trial is a
necessary and acceptable part of the prosecutor’s function.
However, some prosecutors engage in conduct that goes beyond
permissible trial preparation. These prosecutors either overtly,
covertly or even inadvertently, cause witnesses to give testimony
that is false, inaccurate, or misleading. And given that witnesscoaching
is done in private, there is usually no evidence of
improper conduct. Therefore, the ability of cross-examination to
reveal such improper conduct is extremely limited.
Coaching typically is accomplished through memory
reconstruction, suggestions that improve testimony, and cues that
alter testimonial language. Some witnesses such as children,
identification witnesses, and cooperating witnesses are highly
susceptible to coaching. These witnesses are capable of adjusting
their testimony based on leading, suggestive, coercive or
intimidating questions or statements. Furthermore, the prestige
and power of the prosecutor enhances her ability to influence the
witness’s testimony improperly.
Given the potential of witness coaching to skew the factfinding
process, this Article offers several suggestions to expose
improper influences and prevent false or inaccurate testimony.
These include a pretrial taint hearing when there is some basis to
believe that a witness has been improperly influenced, expert
testimony to assist the jury in understanding the vulnerability of
memory and the dangers to accurate testimony from certain types
of interviewing techniques, and electronically recording witnesspreparation
sessions. Any or all of these recommendations, if
adopted, would protect the fact-finding from overzealous conduct.
This is a message that began being forwarded via email in the mid-1990s of various Bill and Hillary Clinton associates alleged to have died under mysterious circumstances. This conspiracy theory continued to resurrect itself during Hillary Clinton’s 2008 and 2016 presidential bids.
THE CLINTON DEAD POOL
1- James McDougal – Clintons convicted Whitewater partner died of an apparent heart attack, while in solitary confinement. He was a key witness in Ken Starr’s investigation.
2 – Mary Mahoney – A former White House intern was murdered July 1997 at a Starbucks Coffee Shop in Georgetown .. The murder …happened just after she was to go public w:th her story of sexual harassment in the White House.
3 – Vince Foster – Former White House counselor, and colleague of Hillary Clinton at Little Rock’s Rose Law firm. Died of a gunshot wound to the head, ruled a suicide.
4 – Ron Brown – Secretary of Commerce and former DNC Chairman. Reported to have died by impact in a plane crash. A pathologist close to the investigation reported that there was a hole in the top of Brown’s skull resembling a gunshot wound. At the time of his death Brown was being investigated, and spoke publicly of his willingness to cut a deal with prosecutors. The rest of the people on the plane also died. A few days later the Air Traffic controller commited suicide.
5 – C. Victor Raiser, II – Raiser, a major player in the Clinton fund raising organization died in a private plane crash in July 1992.
6 – Paul Tulley – Democratic National Committee Political Director found dead in a hotel room in Little Rock , September 1992. Described by Clinton as a “dear friend and trusted advisor”.
7 – Ed Willey – Clinton fundraiser, found dead November 1993 deep in the woods in VA of a gunshot wound to the head. Ruled a suicide. Ed Willey died on the same day his wife Kathleen Willey claimed Bill Clinton groped her in the oval office in the White House. Ed Willey was involved in several Clinton fund raising events.
8 – Jerry Parks – Head of Clinton’s gubernatorial security team in Little Rock .. Gunned down in his car at a deserted intersection outside Little Rock Park’s son said his father was building a dossier on Clinton He allegedly threatened to reveal this information. After he died the files were mysteriously removed from his house.
9 – James Bunch – Died from a gunshot suicide. It was reported that he had a “Black Book” of people which contained names of influential people who visited prostitutes in Texas and Arkansas
10 – James Wilson – Was found dead in May 1993 from an apparent hanging suicide. He was reported to have ties to Whitewater..
11 – Kathy Ferguson – Ex-wife of Arkansas Trooper Danny Ferguson, was found dead in May 1994, in her living room with a gunshot to her head. It was ruled a suicide even though there were several packed suitcases, as if she were going somewhere. Danny Ferguson was a co-defendant along with Bill Clinton in the Paula Jones lawsuit Kathy Ferguson was a possible corroborating witness for Paula Jones.
12 – Bill Shelton – Arkansas State Trooper and fiancee of Kathy Ferguson. Critical of the suicide ruling of his fiancee, he was found dead in June, 1994 of a gunshot wound also ruled a suicide at the grave site of his fiancee.
13 – Gandy Baugh – Attorney for Clinton’s friend Dan Lassater, died by jumping out a window of a tall building January, 1994. His client was a convicted drug distributor.
14 – Florence Martin – Accountant & sub-contractor for the CIA, was related to the Barry Seal, Mena, Arkansas, airport drug smuggling case. He died of three gunshot wounds.
15 – Suzanne Coleman – Reportedly had an affair with Clinton when he was Arkansas Attorney General. Died of a gunshot wound to the back of the head, ruled a suicide. Was pregnant at the time of her death.
16 – Paula Grober – Clinton’s speech interpreter for the deaf from 1978 until her death December 9, 1992. She died in a one car accident.
17 – Danny Casolaro – Investigative reporter, investigating Mena Airport and Arkansas Development Finance Authority. He slit his wrists, apparently, in the middle of his investigation.
18 – Paul Wilcher – Attorney investigating corruption at Mena Airport with Casolaro and the 1980 “October Surprise” was found dead on a toilet June 22, 1993, in his Washington DC apartment had delivered a report to Janet Reno 3 weeks before his death.
19 – Jon Parnell Walker – Whitewater investigator for Resolution Trust Corp. Jumped to his death from his Arlington ,Virginia apartment balcony August 15, 1993. He was investigating the Morgan Guaranty scandal.
20 – Barbara Wise – Commerce Department staffer. Worked closely with Ron Brown and John Huang. Cause of death: Unknown. Died November 29, 1996. Her bruised, naked body was found locked in her office at the Department of Commerce.
21 – Charles Meissner – Assistant Secretary of Commerce who gave John Huang special security clearance, died shortly thereafter in a small plane crash.
22 – Dr. Stanley Heard – Chairman of the National Chiropractic Health Care Advisory Committee died with his attorney Steve Dickson in a small plane crash. Dr. Heard, in addition to serving on Clinton ‘s advisory council personally treated Clinton’s mother, stepfather and brother.
23 – Barry Seal – Drug running TWA pilot out of Mena Arkansas, death was no accident.
24 – Johnny Lawhorn, Jr. – Mechanic, found a check made out to Bill Clinton in the trunk of a car left at his repair shop. He was found dead after his car had hit a utility pole.
25 – Stanley Huggins – Investigated Madison Guaranty. His death was a purported suicide and his report was never released.
26 – Hershell Friday – Attorney and Clinton fundraiser died March 1, 1994, when his plane exploded.
27 – Kevin Ives & Don Henry – Known as “The boys on the track” case. Reports say the boys may have stumbled upon the Mena Arkansas airport drug operation. A controversial case, the initial report of death said, due to falling asleep on railroad tracks. Later reports claim the 2 boys had been slain before being placed on the tracks. Many linked to the case died before their testimony could come before a Grand Jury.
THE FOLLOWING PERSONS HAD INFORMATION ON THE IVES/HENRY CASE:
28 – Keith Coney – Died when his motorcycle slammed into the back of a truck, 7/88.
29 – Keith McMaskle – Died, stabbed 113 times, Nov, 1988
30 – Gregory Collins – Died from a gunshot wound January 1989.
31 – Jeff Rhodes – He was shot, mutilated and found burned in a trash dump in April 1989.
32 – James Milan – Found decapitated. However, the Coroner ruled his death was due to natural causes”.
34 – Richard Winters – A suspect in the Ives/Henry deaths. He was killed in a set-up robbery July 1989.
THE FOLLOWING CLINTON BODYGUARDS ARE ALSO DEAD
35 – Major William S. Barkley, Jr.
36 – Captain Scott J . Reynolds
37 – Sgt. Brian Hanley
38 – Sgt. Tim Sabel
39 – Major General William Robertson
40 – Col. William Densberger
41 – Col. Robert Kelly
42 – Spec. Gary Rhodes
43 – Steve Willis
44 – Robert Williams
45 – Conway LeBleu
46 – Todd McKeehan
47. 48. 49. 50. Not Included in this list are the 4 men killed in Benghazi.
Subpoena, Summons, Constitutionally Correct:
17 F. 126
Circuit Court, D. Colorado.
BATTLE MOUNTAIN SMELTING CO.
June 27, 1883.
West Headnotes (2)
108HVII(C)4Parties, Process, and Appearance
108Hk744Summons or Other Notice to Garnishee; Writ of Garnishment
108Hk744(5)Defects, objections, and amendment
(Formerly 189k96 Garnishment)
|A garnishee in Colorado is entitled to 10 days in which to appear and answer, “as in other summons in courts of record”; and, when the summons is made returnable within 10 days from the date of service, it is a fatal defect.|
313INature, Issuance, Requisites, and Validity
313k28Name in which writ should run
|The legislature of a state may prescribe the form of process, but in so doing the provisions of the constitution must be observed; and where the constitution provides that every summons shall run in the name of the people, a summons in the form given in the statute, but not in the name of the people, is deficient.|
Attorneys and Law Firms
*126 Mr. Campbell, for plaintiff.
Henry T. Rogers, for garnishee.
HALLETT, J., (orally.)
Manville recovered a judgment against the Battle Mountain Company in the district court of Lake county, and took out execution, and procured the Belden Mining Company to be *127 summoned as garnishee. That company entered a motion to quash the summons and the return of the sheriff thereon, and removed the cause into this court. The motion has been presented here.
Objection is made that the summons does not run in the name of the people, as required by the constitution of the state, article 6, Sec. 30. And the objection seems to be well taken. Unquestionably the legislature may prescribe the form of process, but in doing so the provisions of the constitution must be observed. This process appears to be in the form given in the statute, (2 Sess. 1879,) but it is deficient in that it does not run in the name of the people, as required by the constitution. That it is not in the form of other process used in law actions is not important, and the circumstance that it was issued by the sheriff, rather than the clerk, is not important. In these particulars the authority of the legislature cannot be denied; but the constitution cannot be disregarded.
The statute also provides that in courts of record ‘the summons shall be made returnable, and be served the same as other summonses in courts of record;‘ and this seems to require that the time for answering shall be the same as in actions at law. In this instance the summons was made returnable within 10 days from the date of service. This is a fatal defect. The garnishee was entitled to 10 days in which to appear and answer, and if service was not made in the county where the judgment remained, then to a longer time.
The motion will be allowed, and the cause dismissed.
5 McCrary 328, 17 F. 126
Assessor Property Tax:
Oregon 306.255 Information for taxpayers concerning property taxes, appraisals and appeals.
(1) The county assessor shall provide and make available to taxpayers, upon request, the following information:
(a) An explanation of the ad valorem property tax system, including but not limited to the manner in which the amount of ad valorem property tax is determined, the manner in which the taxpayer’s share of that tax is determined and the manner in which the limitations on the amount of that tax is determined.
(b) An explanation of the methods of appraisal generally and, if of interest to the taxpayer, the method or methods of valuation of the type of property with which the taxpayer is concerned.
(c) A general explanation of the manner in which to appeal the value of property and a description of the kind of information that may be needed to present an appeal.
(2) The Department of Revenue shall prepare written materials concerning each of the subjects identified in subsection (1) of this section and make those materials available to the county assessors and to individual taxpayers upon request. [1991 c.903 §6]
(((Force the assessor to give what he relies upon that the subject land, and property in that land, is determined to be within the scope of the state property-tax written law with the package and aid of Paul John Hansen.))) pauljjhansenLAW@gmail,com
Per IRS manual 6209 Section 2;
W2s are not Income, are Class 5 Gift & Estate Tax ❗
3-28-19 Hansen will investigate this as time provides.
If a reader comes across pertinent info on this topics please email it to me for review and possible posting on this page. Many hands make hard work easy.
[[[Also SEE > See Blackston v. Alabama, 30 F.3d 117, 120 (11th Cir.1994) (finding that plaintiffs’ interest in filming public meetings is protected by the First Amendment) ]]]
Before: LAY,*TROTT and T.G. NELSON, Circuit Judges. Ted Buck, Stafford Frey Cooper, Seattle, WA, for defendants-appellants-appellees. James E. Lobsenz, Carney, Badley, Smith & Spellman, Seattle, WA, for plaintiff-appellee-appellant.
This case arises from the alleged interference by police officers of the City of Seattle with Jerry Edmon Fordyce’s attempt on August 5, 1990 to videotape a public protest march. Fordyce, who apparently considered himself part of the protest, had volunteered to videotape the demonstration for “local television production,” presumably for broadcast on a public access channel. Among his subjects were the activities of the police officers assigned to work the event. Not surprisingly, the police themselves became targets of the protest and were subjected to rude and profane insults. Generally, the police reacted to this treatment in a calm and professional manner, but the record suggests that some of these officers were not pleased with Fordyce’s actions, and that one officer in particular attempted physically to dissuade Fordyce from his mission. At the end of the day, in a separate incident, a different officer arrested Fordyce when he attempted to videotape some sidewalk bystanders against their wishes. Fordyce was charged with violating a Washington State privacy statute, Wash.Rev.Code § 9.73.030, which forbids the recording of private conversations without the consent of all participants.1 Fordyce spent the night in jail. On October 1, 1990, the charges against Fordyce were dismissed on motion of the prosecuting attorney.
Subsequently, Fordyce brought a civil-rights suit against the City of Seattle and eight Seattle police officers. Fordyce sought damages from the officers in their individual capacities pursuant to 42 U.S.C. § 1983 for interfering with his First Amendment right to (((gather news and for arresting him))) without the requisite probable cause for allegedly violating Wash.Rev.Code § 9.73.030. He also invoked supplemental jurisdiction in order to seek damages from the officers in their individual capacities for violations of state tort law. Fordyce sought permanent injunctive relief against the City of Seattle and the officers forbidding enforcement of Wash.Rev.Code § 9.73.030 against amateur journalists such as himself, and sought damages from the City of Seattle pursuant to § 1983 and supplemental state tort claims. Fordyce demanded attorney’s fees pursuant to 42 U.S.C. § 1988.
The defendants moved for summary judgment, and Fordyce moved for partial summary judgment. The district court granted the defendants’ motion for summary judgment as to Fordyce’s pre-arrest § 1983 and state tort claims, finding “no evidence that would permit a rational jury to find that he was assaulted.” Fordyce v. City of Seattle, 840 F.Supp. 784, 788 (W.D.Wash.1993). The district court also granted the defendants’ motion for summary judgment as to Fordyce’s damages claims pursuant to § 1983 and state law torts, concluding that the individual police officers were qualifiedly immune and the city nonliable. Id. at 788-91.
The district court declined to award Fordyce the injunctive relief he had requested. Instead, the district court sua sponte awarded Fordyce declaratory relief, which he had not requested, declaring that Wash.Rev.Code § 9.73.030 “does not prohibit the videotaping or sound-recording of conversations held in a public street, within the hearing of persons not participating in the conversation, by means of a readily apparent recording device.” Id. at 794.
After entry of the declaratory judgment, Fordyce requested attorney’s fees against the City of Seattle (but not against the defendant police officers). The defendants requested attorney’s fees as well, on the ground that Fordyce’s suit had been frivolous as to certain individual officers. On October 13, 1993, the district court issued two unpublished orders. The first granted attorney’s fees to Fordyce as a “prevailing party” under 42 U.S.C. § 1988, but only in the amount of 20 percent of the fees Fordyce had requested. The second denied attorney’s fees to the defendants.
Both parties appeal the district court’s orders. The City of Seattle and the individual defendants appeal the district court’s award of declaratory relief, award of attorney’s fees to Fordyce as a “prevailing party,” and denial of the defendants’ attorney’s fees. Fordyce appeals the district court’s grant of summary judgment to the City and the individual officers and the amount of attorney’s fees awarded to him. We affirm in part, reverse in part, vacate in part, and remand.
II. Liability and Damages
The district court based some of its dispositive rulings on its conclusion that the record contained “no evidence that would permit a rational jury to find that [Fordyce] was assaulted.” Fordyce, 840 F.Supp. at 788. We respectfully disagree. As we read the record, a genuine issue of material fact does exist regarding whether Fordyce was (((assaulted and battered by a Seattle police))) officer in an attempt to prevent or dissuade him from exercising his First Amendment right to (((film matters of public interest.))) Fordyce testified in a deposition that his (((camera was deliberately and violently smashed into his face))) by Officer Elster while Fordyce was publicly gathering information with it during the (((demonstration))). Although corroboration is not required to establish a genuine issue of material fact when the issue is established by sworn testimony, Fordyce’s allegation is nonetheless corroborated by his videotape, which is in the record and which we have reviewed. Thus, as to Officer Elster, the matter did not merit a grant of summary judgment with respect either to the First Amendment claims under 42 U.S.C. § 1983 or to the supplemental state law claims of assault and battery. These claims merit a trial.
As to the § 1983 claims stemming from Fordyce’s arrest, we agree with the district court that the officers are entitled to qualified immunity from suit for damages. Act Up!/Portland v. Bagley, 988 F.2d 868 (9th Cir.1993).
The relevant facts are undisputed. While Fordyce was videotaping people on the streets of Seattle, he was simultaneously audio-recording them as well. Prior to arresting Fordyce, an officer asked him whether the videocamera was recording voices and warned him that a Washington State statute forbade recording private conversations without consent. Fordyce refused to stop videotaping two boys after an adult relative supervising them asked him to stop and complained to the police. The police officers also asked Fordyce to stop, but he refused. He was then arrested for violating Wash.Rev.Code § 9.73.030.
At the time of Fordyce’s arrest, whether and under what circumstances conversations in public streets could be deemed private within the meaning of the privacy statute was not yet settled under Washington state law. Under the facts marshalled pursuant to the motions for summary judgment, a reasonable officer could have believed Fordyce was recording private conversations in violation of the statute. The evidence before the district court supports a claim that the officers arrested Fordyce for committing in their presence what they believed was a misdemeanor. Accordingly, all the individual police officer defendants are entitled to qualified immunity with respect to Fordyce’s § 1983 damages claims relating to his arrest.
We also affirm the district court’s decision granting summary judgment to the City of Seattle, dismissing it from the § 1983 damages claims. Fordyce failed to show that the City of Seattle was culpable by virtue of a “policy statement, ordinance, regulation, or decision officially adopted and promulgated by” Seattle that was itself unconstitutional. Monell v. New York City Dep’t of Social Servs., 436 U.S. 658, 690, 98 S.Ct. 2018, 2035-36, 56 L.Ed.2d 611 (1978). Fordyce also failed to show that any Seattle policy or any decision by a governmentally authorized decisionmaker was the moving force behind any deprivation of his constitutional rights. See Pembaur v. City of Cincinnati, 475 U.S. 469, 481, 106 S.Ct. 1292, 1299, 89 L.Ed.2d 452 (1986); Larez v. City of Los Angeles, 946 F.2d 630, 645-46 (9th Cir.1991).
Because our opinion reinstates Office Elster as a defendant in this case, however, we vacate and remand to the district court the issue of whether Seattle can be held vicariously liable under state law for Fordyce’s state law tort damages claims against Officer Elster.
III. Declaratory and Injunctive Relief
The City of Seattle argues that the district court should not have granted declaratory relief because (1) Fordyce lacked standing; and (2) Fordyce never served the Attorney General of Washington State with a copy of his complaint. We vacate the district court’s grant of declaratory relief because the procedure resulting in the award was flawed.
First, the City contends that declaratory relief was unwarranted because no “case or controversy” exists, and therefore the district court lacked subject matter jurisdiction. U.S. Const. art. III, § 2. Seattle also argues that Fordyce did not have standing. We disagree with the City.
At the time Fordyce was arrested, and at the time the district court issued its order, the highest court in Washington had not-and still has not-interpreted Wash.Rev.Code § 9.73.030 to permit recording of audible conversation among private citizens on public streets.2 Fordyce was, and still is, uncertain and insecure regarding his right vel non to videotape and audiotape private persons on public streets. Noting that Fordyce says he will continue to participate in such activities, we are unable to conclude from the record that the circumstances culminating in his arrest no longer are a “brooding presence,” which cast an adverse effect on his legitimate interests as a citizen of the United States. Headwaters, Inc. v. Bureau of Land Management, 893 F.2d 1012, 1015 (9th Cir.1989) (quoting Super Tire Eng’g Co. v. McCorkle, 416 U.S. 115, 122, 94 S.Ct. 1694, 1698, 40 L.Ed.2d 1 (1974)).
We are satisfied that, under the facts of this case as they existed during the time of litigation in district court, Fordyce sufficiently demonstrated the existence of a concrete controversy. Furthermore, in a case concerning the constitutionality of a state criminal statute, all that is required for an award of declaratory relief is that the plaintiff show “a genuine threat of enforcement of a disputed state criminal statute.” Steffel v. Thompson, 415 U.S. 452, 475, 94 S.Ct. 1209, 1223-24, 39 L.Ed.2d 505 (1974). Thus, assuming that declaratory relief as an issue was properly before the district court, Fordyce had standing to be eligible for such relief pursuant to the principles enunciated in Steffel.3
The City next argues that the declaratory judgment was defective because it was awarded without service of “the proceeding” on the Washington State Attorney General in violation of a Washington State statute. In a suit challenging a Washington State statute, Wash.Rev.Code § 7.24.110 provides that “the Attorney General shall also be served with a copy of the proceeding and be entitled to be heard.”
We disagree with the City of Seattle that a state notice statute can be construed to impose a duty on a federal court. The Eleventh Amendment to the United States Constitution would bar federal court jurisdiction if Fordyce sought to sue the State of Washington. Although the State of Washington may waive the protection of the Eleventh Amendment‘s jurisdictional bar by passing a statute consenting to be sued, a statute consenting to suit in state court does not constitute consent to suit in federal court. Florida Dep’t of Health & Rehab. Servs. v. Florida Nursing Home Ass’n, 450 U.S. 147, 149-50, 101 S.Ct. 1032, 1033-34, 67 L.Ed.2d 132 (1981); Kennecott Copper Corp. v. State Tax Comm’n, 327 U.S. 573, 66 S.Ct. 745, 90 L.Ed. 862 (1946). Thus, even if Wash.Rev.Code § 7.24.110 were a statute consenting to suit, it could not be construed to require joinder of the State in Fordyce’s suit in federal court.
We do agree with the thrust of Seattle’s argument, however. The State of Washington could waive Eleventh Amendment protection by voluntarily appearing and defending on the merits. Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985); Clark v. Barnard, 108 U.S. 436, 2 S.Ct. 878, 27 L.Ed. 780 (1883). And the statute on which the City relies certainly manifests a decision by the State that its attorney general has a strong interest in defending the State’s statutes in court. Voluntary appearance by the State of Washington assumes, however, that the State has been adequately notified of the pendency of the suit and of the particular matters at issue.
Here the district court never expressly informed the parties that it might render the declaratory judgment. The parties argued their motions for summary judgment on the basis that only injunctive relief and damages were at issue. The district court never indicated otherwise during the oral argument. Subsequent to the hearing on the motions for summary judgment, the district court, sua sponte, issued an order inviting the ACLU of Washington State, several news organizations, and the Washington State Attorney General to file amicus briefs addressing six specific questions framed by the district court.4 The ACLU’s amicus brief first raised the possibility of declaratory relief, but even Fordyce’s reply brief to the amicus briefs casts the issues solely in terms of injunctive relief. The parties essentially had no inkling that the district court was silently considering a grant of declaratory relief.
We conclude the district court failed to comply with 28 U.S.C. § 2403(b) by failing to notify the Washington State Attorney General that it might rule on the constitutionality of Wash.Rev.Code § 9.73.030. When neither a state nor “any agency, officer, or employee thereof” is a party to an action where the constitutionality of a state statute “is drawn in question,” a federal district court is required to notify the state attorney general and must “permit the State to intervene.” 28 U.S.C. § 2403(b). Here, no representative of the State of Washington was a party to the action. The City of Seattle was not an “agency” of the state of Washington for purposes of this federal statute. See Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 572-73, 50 L.Ed.2d 471 (1977) (Eleventh Amendment immunity does not extend to counties or similar municipal corporations). By state law, a municipal corporation is not a state agency. Plumbers & Steamfitters Union Local 598 v. WPPSS, 44 Wash.App. 906, 724 P.2d 1030, 1033 (1986) (citing Wash.Rev.Code § 42.17.020(1)).
Fordyce argues that the district court indicated its “intentions” in plenty of time for the State of Washington to intervene, if the State had so desired. We conclude that such “telegraphed” intentions are not enough to avoid the duty to provide adequate notice and a formal opportunity to intervene to the State. Because the City’s presence in the suit did not satisfy the requirements of 28 U.S.C. § 2304(b), and the issue was never certified to the Attorney General of Washington State, the district court never had the opportunity fully to hear the views of Washington State. See Yniguez v. Arizona, 939 F.2d 727, 739 (9th Cir.1991). Therefore the district court should not have rendered the declaratory relief.
We also conclude that the opportunity to file an amicus brief in no way substituted for a formal opportunity to participate fully as an intervening party in the litigation. The “opportunity” for the Washington State Attorney General to participate in this lawsuit was circumscribed along the lines of a jury’s special verdict form. If declaratory relief concerning the constitutionality of Wash.Rev.Code § 9.73.030 was an issue under consideration by the district court, the State of Washington should have been invited to intervene. The district court abused its discretion by not formally extending an opportunity to the State of Washington to intervene in this action.
For the foregoing reasons, we conclude that although Fordyce may have had standing to be eligible for declaratory relief, the district court abused its discretion in failing to provide the State of Washington (or the City of Seattle) an adequate opportunity to be heard when it contemplated granting an unrequested declaratory judgment ruling on the constitutionality of Wash.Rev.Code § 9.73.030.
For the foregoing reasons, we REVERSE and REMAND the district court’s grant of summary judgment as to Officer Elster because a genuine issue of material fact exists concerning Officer Elster’s alleged assault and battery against Fordyce prior to Fordyce’s arrest. We also REVERSE and REMAND the grant of summary judgment as to Officer Elster on the § 1983 claims, because a genuine issue of material fact exists concerning whether he interfered with Fordyce’s First Amendment right to gather news. We AFFIRM the grant of summary judgment as to all the individual officer defendants on the § 1983 damages claims relating to Fordyce’s arrest. We AFFIRM the grant of summary judgment to the City of Seattle for Fordyce’s § 1983 damages claim. We VACATE and REMAND for reconsideration the grant of summary judgment as to the vicarious liability Seattle may have for Fordyce’s state law tort claims for damages against Officer Elster. We VACATE the award of declaratory relief against the defendants. We do not reach the issue of attorney’s fees under 42 U.S.C. § 1988, but VACATE the two attorney’s fees orders dated October 13, 1993, and REMAND those matters to the district court for reconsideration in light of our decisions in this appeal.
AFFIRMED IN PART, REVERSED IN PART, VACATED IN PART, and REMANDED.
Each party shall bear its own costs.
1. Wash.Rev.Code § 9.73.030 provides in relevant part:(1) Except as otherwise provided in this chapter, it shall be unlawful for any individual, partnership, corporation, association, or the state of Washington, its agencies, and political subdivisions to intercept, or record any:․(b) Private conversation, by any device electronic or otherwise designed to record or transmit such conversation regardless how the device is powered or actuated without first obtaining the consent of all the (((persons engaged in the conversation))).․(4) An employee of any regularly published newspaper, magazine, wire service, radio station, or television station acting in the course of bona fide news gathering duties on a full time or contractual or part time basis, shall be deemed to have consent to record and divulge communications or conversations otherwise prohibited by this chapter if the consent is expressly given or if the recording or transmitting device is (((readily apparent or obvious to the speakers))). Withdrawal of the consent after the communication has been made shall not prohibit any such employee of a newspaper, magazine, wire service, or radio or television station from (((divulging))) the communication or conversation.
2. See, e.g., Fordyce, 840 F.Supp. at 792-93 (discussing Washington state court decisions interpreting Wash.Rev.Code § 9.73.030). Since the date of the district court’s order, the Washington supreme court opinions construing Wash.Rev.Code § 9.73.030 have not clarified whether (((conversations on public streets))) may be videotaped and audiotaped with impunity. See State v. Corliss, 123 Wash.2d 656, 870 P.2d 317 (1994) (statute does not apply to police officer merely listening to conversation without recording it on same telephone receiver tipped in his direction by informant); State v. Riley, 121 Wash.2d 22, 846 P.2d 1365 (1993) (line trap discovering only telephone number is not a recording of a “private communication”).
3. We do not rule out a different conclusion on remand based on a demonstration of different facts and circumstances. See Blair v. Shanahan, 38 F.3d 1514 (9th Cir.1994).
4. The questions for the amici curiae were as follows:1. Can a conversation between two private citizens standing on a public street or sidewalk be a “private conversation” within the meaning of the statute?2. Can a conversation between two on-duty city police officers on a public street or sidewalk be a “private conversation” within the meaning of the statute?3. Section 4 of the statute affords a presumption of consent where the recording is made by an “employee of any regularly published newspaper, magazine, wire service, radio station, or television station” and the “recording or transmitting device is readily apparent or obvious to the speakers.” The plaintiff in the present case was videotaping in downtown Seattle for the purpose of showing his tape later over a (((public-access television))) [[[or public access internet???]]] station, where he had often broadcast before. If section 4 is applied to afford a presumption of consent to a paid employee of, or contractor with, a “regularly published” communications medium, but to deny it to a (((freelance))), unpaid news-gatherer, would the result be to discriminate against the latter in violation of his or her First Amendment rights?4. If the answer to the previous question is yes, can and should the statute be read to afford the presumption of consent to all persons “acting in the course of bona fide news gathering”? If so, is there a constitutional way to distinguish between “bona fide newsgathering” and the recording of events for other purposes?5. If the statute is applied to afford a presumption of consent to one engaged in “bona fide news gathering,” while denying it to a person who is recording simply out of interest or curiosity, would the result be an unconstitutional discrimination against the latter in violation of his or her (((First Amendment))) rights?6. If the answer to the preceding question is yes, can and should the statute be read to afford the presumption of consent to any person recording “if the recording or transmitting device is readily apparent or obvious to the speakers”?
TROTT, Circuit Judge:
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