Posted on 05/05/2009 12:32:40 PM PDT by hiredhand
Oxford, N.C. — Sixteen-year-old Ashton Lundeby's bedroom in his mother's Granville County home is nothing, if not patriotic. Images of American flags are everywhere – on the bed, on the floor, on the wall.
But according to the United States government, the tenth-grade home-schooler is being held on a criminal complaint that he made a bomb threat from his home on the night of Feb. 15.
(Excerpt) Read more at wral.com ...
But if he's not charged, just held for say 3 months or 6 months or 24 months, then released (but still under suspicion, put on no-fly lists, etc.) everything would be "cool" because he wasn't convicted.
The charge of "denied due process" is vague. If somebody says "zero due process," that is obviously incorrect. Same with "unconstitutional," absent a fact pattern and case site to support it. As we know, Padilla in the US, and even others outside the US (GTMO) have all the due process they are entitled to "within the constitution." Military detention (Lundeby isn't), being held for months without being charged for trial, etc. are not unconstitutional denials of due process.
There is no doubt he's been arrested. There is agreement that a physical search was conducted pursuant to a warrant. He is being held by the Feds for making bomb threats over the internet, so the observation there was no bomb-making material is a non-sequitur - the threat alone is sufficient basis for detention (like uttering "bomb" in an airport, in a way that incites the TSA to concern)
The reference to National Security Letters implicates a sort of "due process" concern (snooping outside of court supervision); but "due process" as a buzz-phrase isn't usually associated with government snooping, and there is no allegation that probable cause to conduct a physical search was bootstrapped from an unconstitutional search or seizure.
-- One of the things the reporter left out was information about the charges and any indictments which have been issued. --
Agreed. Formal charges and speedy trial are aspects of law enforcement that people usually sweep into "due process." Without a formal charge, a captive can't defend. But filings in this case would be sealed as the suspect is a child; and the report says "held on a criminal compliant," which may be styled as an indictment. We also don't know about access to legal counsel.
-- I'm not buying the story that the Patriot Act supersedes any part of the Consitution. --
Parts of it are untested, and strike me as problematic in light of the Constitution. But this story is too vague to be useful as a basis for debate on the question.
I'd like to know the nature of the bomb threats. The schools get them here every year, and it'd be great to lock the little cretins up for a year or two, 1000 miles from home, to teach them a lesson.
A google search using "bomb threat" "internet" turns up a few cases, and of course "bomb threat" on its own turns up thousands.
I don't even know what the purpose of that court date is. Was it to be a bond hearing? An arraignment? Presentation of a plea bargain? Presumably the government has sufficient evidence to support detention and indictment. But even so, there is no constitutional impediment to holding a person without charge for some period of time, and this case is far from reaching that duration - see Padilla.
-- the gag order protects the defendant as much as it does the authorities --
The ostensible function of a gag order is either to protect the defendant's privacy, or to preserve a "state secret" or ongoing investigation that aims to obtain evidence about people not yet detained pending charge. What we know of this case, it is the act of a lone wolf, so there isn't any ongoing investigation to compromise. The defendant's mother seems to want publicity and is willing to give up the privacy interest. Makes sense, the kid is in jail, and his friends and neighbors know why. At this point, the only interest being protected by the gag is the government's credibility.
-- A court hearing date has been set. This implies that someone is looking out for him, even if it is only the judge. --
The judge is impartial, and in practice tends to favor the state. A lawyer is an advocate, a counterbalance to the government-advocate. Again, I don't know that his interests are not represented by counsel, but the law says if he is a criminal suspect, he has the right to an attorney. Again, this right doesn't pertain to all of us, depending on the rationale the government uses to justify detention. If he's a terrorist suspect, then permitting him access to non-cleared counsel is a risk.
-- I figure that this case will end up like Mr. Glazebrook's --
That, of course, depends on having evidence to support a conviction, etc. If the government determines it doesn't want to risk a trial, then it may just release him with a "you're darn lucky to be free."
Mom and her friends seem to be arguing both in this case. As to the facts, they offer an alibi and an alternative suspect; and as to the law they imply the process is not following the criminal law pattern of arrest, bond, indict/charge, and trial.
It'd be the first time for a bomb-hoaxer, that I know of. This kid isn't the first to figure out it's easy to cause some panic and action with a phone call, note, or internet-based posed (e.g., MySpace)
-- As for the alibi and the "some other dude did it," those are assertions, not facts. --
I was just saying that the defendant is arguing the facts, not that the defendant had them right. IOW, this doesn't come off as the prototypical "pound the table" situation.
-- I figure that an arrest warrant was served, he was charged under a criminal complaint, and was later indicted by a federal grand jury. --
I've seen no evidence of an indictment, but yours is certainly a reasonable assumption. Would you find the story newsworthy if the fellow was held this long w/o an indictment?
-- If Ashton didn't commit this/these crimes, my heart goes out to him. If he did, he won't get any sympathy from me. --
Goes to my point that cretins who are suspected of calling in bomb threats ought to, as a matter of routine, be moved a few hundred miles from home with all form of communication being "under seal." It'd make the little bastards toe the line.
But aside from the determination of actual guilt or innocence, the story does present an accusation that the criminal justice system has some "optional procedures" that result in a claim of violation of some imagined due process right. That's novel in this case, not appearing in any of the bomb threat cases that I've casually bumped into.
So much for the Nancy Grace angle, eh! Padilla didn't get much coverage past the initial arrest. If there is no public activity in court, the media has nothing to report.
On your information, I too read the stuff at lewrockwell. The boy had court-appointed counsel the day after he was apprehended. His mother was forbidden to communicate with him for a three-week period, and was not given a "reason" for the firewall.
On the point of "it could take months for an indictment to be issued," a criminal defendant is usually arraigned within days of apprehension. A delay of 60 days is very noteworthy. It's not possible to prepare a proper formal defense until there is a formal charge. Still, the question remains hypothetical at this point, because the evidence is equivocal on whether or not he's been formally charged. I think he hasn't, which is the attribute what drives the current news. But it's possible he has all of the formal charges, and is just attempting to discredit the government via media.
The April 29 story is starting to spread on the internet, and according to that lewrockwell page, a hearing is scheduled for May 27. The story may attract more investigation and more independent commentary as a result of those developments. I'm going to file it in the back of my mind, and endeavor to obtain an accurate impression of what happened. I think the USA PATRIOT Act and MCA provide a dangerous combination of "law," for one reason because they give the supposedly independent courts so little room/basis to object to a factually unfounded/unjustified detention.
Not really. Bill Ayers needs to be picked up. Otherwise it looks like REAL BOMBERS have more rights than those who are merely thought to have made a bomb threat (real or not).
I doubt they waited that long for Brent Kimberlin ~ but he was tossing dynamite (and later on became the Algore's best buddy during the campaign).
That's the fishy part ~ 18 days delay.
That particular problem appears to have broken the back of the music producers and distributors who were busy suing everybody and anybody for "downloading" copyrighted tunes without permission.
I would imagine by now the federales have figured the problem out and know how to get around it ~ and I would be wrong. The federales still need a warrant to access the internet to see if, in fact, who it is who is actually doing the communicating. I'm not sure the federales are in a position to protect the innocent.
At the same time they delayed 18 days before bothering to respond to the bomb threat ~ which is something that should bother all of us.
Well, there's a rub. Are the proceedings routinely sealed from the juvenile's parents as well as from the public?
-- It can take months to empanel a special Grand Jury or schedule evidence presentation before a sitting Grand Jury. --
IOW, you find this delay to be within the norm. I think this delay (if there hasn't been a formal charge) to be troubling. It's a radical outlier compared with timelines in the other bomb-threat cases - quick trial and conviction after identification and capture
The 700 mile relocation is also unusual, although the FEDs certainly have the power and superficial justification for doing so.
The government ought to at least level one charge so defense can begin its advocacy process. If it has other charges "in the wings" it can bring them later, and often does. See "amended indictment" and "further indictment."
Not if he's in jail it won't. That's a speedy trial violation. The indictment has to issue thirty days from arrest under federal law.
Framingham, Mass - 2005: Email threat on May 18, arrest on "Wednesday" (Before May 28), and arraigned on "Thursday." 15 year old, unnamed perp. Come to think of it, the typical extent of "sealing" is to keep the perps name out of the public eye, and not the fact that a crime was committed, a perp ID'd, and to chronicle the wheels of justice. It is, IMO, unusual to wholesale seal off the indictment, criminal complaint, etc.
Carrollton, MI - 2008: Telephone threat on Feb 25, Arraigned/bond set Mar 6, prelim hearing of Mar 17.
Pittsfield, Mass - 2004: Oral threat, arrest, and arraignment all w/in a week.
NYC (Penn Station) - 2005: Oral threat, arrest and arraignment all w/in a week.
Philadelphia, PA - 2004: Oral threat, arrest and arraignment all w/in a week.
Grand Rapids, MI - 2008: telephone threat, arrest an arraignment w/in 15 days max
Those aren't cherry-picked examples. Others will find the same thing I did, should they take the time to conduct the search and peruse the news. I was amazed at the number and variety of bomb threats.
No, that's false. All they need to justify arraignment is sufficient ALLEGATION, which will subject to proof by the evidence during the course of trial, to support the specific statutory violation. The statutory violation here is a no brainer, see previously cited "bomb threat hoaxes" for examples. The elements of the crime are few and simple. The threat, and who made it.
If the evidence is not sufficient to support a finding of guilt to some legal standard, the the trial result is "not guilty." That is, no conviction.
If the standard for arraignment was "enough evidence to (always) support conviction, there would not be any "not guilty" verdicts, except by jury nullification.
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