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InvisibleEnlilMDiscord
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Re: Ask a defense attorney [Re: Anonymous #6]
    #16567192 - 07/22/12 09:04 AM (11 years, 9 months ago)

I work for the public defender's office at the moment, so I do not take private clients for work except under exceptional circumstances.

He shouldn't have any problem finding an attorney.  Criminal defense attorneys routinely accept cases much worse than what you're describing.  Failing that, he can always use the services of the public defender's office...assuming that he meets the income requirements.

While that answered your question, it appears that your post is less of a question and more of an attempt at eliciting some type of reaction from me.  While I don't know what type of reaction you're hoping for, I can assure you that I have indeed successfully represented people accused of child rape.  I am quite proud of a particular acquittal I earned a bit over a year ago for just such a charge.

Defense attorneys don't (or at least shouldn't) pick clients based on whether or not they're guilty.  Everyone charged with a crime has a right to competent representation.  If I ever refused a case because I thought someone was guilty, I would be taking on the role of the jury.  That is neither my job nor where my expertise lies.


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Anonymous #7

Re: Ask a defense attorney [Re: Enlil]
    #16589031 - 07/25/12 08:48 PM (11 years, 9 months ago)

A person calls and blackmails me from a state where both persons must know of the recording, but I am in a state where only one person needs to know of the recording. Is recording the conversation for legal purposes useful down the road in getting the blackmailer nailed, or not? What if both states are ones that need mutual consent? Will the recording be evidence to put blackmailer away? If I record happenings within property that is my own (i.e cars or houses), then can I also use these recordings without consent?

Also, what's your best advice during search and seizure? Call a lawyer to supervise perhaps? Is it good to have some papers prepared? If the police are seizing electronic equipment how can you record the search and seizure and control for planted evidence? Any experience or best practices for this?

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InvisibleDiploidM
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Re: Ask a defense attorney [Re: Enlil]
    #16591344 - 07/26/12 09:14 AM (11 years, 9 months ago)

Say I'm caught selling drugs and my laptop where I keep the contact info for all my customers and accounts is confiscated. The cops (or a judge) find that I use encryption to protect my data and they demand my password.

Can I be compelled to give up the password? Considering that I'm being asked to give up the content of my mind, it reads like testifying against myself. On the other hand, passwords have been likened to keys in my pocket which can be confiscated to open a safe containing incriminating documents.

What if my password is the phrase "I am a drug dealer." and so by giving up my password, I've now been compelled to give a confession without consent?

I know there is still very little case law, but what's your take on how this will eventually be resolved?


--------------------
Republican Values:

1) You can't get married to your spouse who is the same sex as you.
2) You can't have an abortion no matter how much you don't want a child.
3) You can't have a certain plant in your possession or you'll get locked up with a rapist and a murderer.

4) We need a smaller, less-intrusive government.

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OfflineNizzyJones
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Re: Ask a defense attorney [Re: Diploid]
    #16591986 - 07/26/12 11:28 AM (11 years, 9 months ago)

Quote:

Diploid said:
Say I'm caught selling drugs and my laptop where I keep the contact info for all my customers and accounts is confiscated. The cops (or a judge) find that I use encryption to protect my data and they demand my password.

Can I be compelled to give up the password? Considering that I'm being asked to give up the content of my mind, it reads like testifying against myself. On the other hand, passwords have been likened to keys in my pocket which can be confiscated to open a safe containing incriminating documents.

What if my password is the phrase "I am a drug dealer." and so by giving up my password, I've now been compelled to give a confession without consent?

I know there is still very little case law, but what's your take on how this will eventually be resolved?




http://news.cnet.com/8301-31921_3-57364330-281/judge-americans-can-be-forced-to-decrypt-their-laptops/

This is a pretty good article on the state of the law in that area. Lower courts have come down on both sides of it.


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InvisibleStonehenge
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Re: Ask a defense attorney [Re: NizzyJones]
    #16593108 - 07/26/12 02:39 PM (11 years, 9 months ago)

You can not be forced to testify against yourself but who can afford to take it to scotus if lower courts go against you? The constitution has regularly been trampled by both parties so who knows.


--------------------
“A democracy cannot exist as a permanent form of government. It can only exist until the voters discover that they can vote themselves largesse from the public treasury. From that moment on, the majority always votes for the candidates promising the most benefits from the public treasury with the result that a democracy always collapses over loose fiscal policy, always followed by a dictatorship.” (attributed to Alexis de Tocqueville political philosopher Circa 1835)

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InvisibleCidneyIndole
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Re: Ask a defense attorney [Re: Enlil]
    #16593960 - 07/26/12 04:39 PM (11 years, 9 months ago)

Quote:

Enlil said:

As far as the legality of it all, while you're stopped, a cop can call a K9 without any probable cause as long as he is not doing it for the purpose of unreasonably detaining you longer.  If the K9 alerts, that's probable cause.  There's no way around it unless you can show in court that the dog is prone to false alerts, etc...nothing you can control at the scene.







I thought my sources credible, when I learned that in such a scenario, (in a traffic stop) they only have the right to detain you so long as it takes to run your information and / or write you a citation, and that for them to detain you longer would constitute a "field arrest." At which point they need probable cause or reasonable suspicion to hold you....

Please do correct me if I'm wrong, and where you think that may be.


Could have sworn I read a case where a guy with a whole trunk full of cocaine was thrown out on this basis.... though don't quote me on that one, as I may be mixing up cases there


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Anonymous #8

Re: Ask a defense attorney [Re: CidneyIndole]
    #16596781 - 07/26/12 11:19 PM (11 years, 9 months ago)

say one is trying to be proactive and look for a good lawyer in the case that something ever happens, how would you suggest seeking out a good criminal defense lawyer? one who would be useful and experienced in federal level cases? i know usually you would look for ex prosecutors but im wondering if that still is the case if the case is federal.

can you really talk to them? should one speak in hypothetical terms? in 'my friend' terms? should one speak to them at all prior to a case? should one pay him before talking to him so he is covered under attorney client privilege?

is seeking out a lawyer before there is even a case to speak of, a guilty action of it's own? how up front can you be with a prospective lawyer?

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InvisibleEnlilMDiscord
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Re: Ask a defense attorney [Re: Anonymous #7]
    #16598020 - 07/27/12 06:30 AM (11 years, 9 months ago)

Quote:

Anonymous said:
A person calls and blackmails me from a state where both persons must know of the recording, but I am in a state where only one person needs to know of the recording. Is recording the conversation for legal purposes useful down the road in getting the blackmailer nailed, or not? What if both states are ones that need mutual consent? Will the recording be evidence to put blackmailer away? If I record happenings within property that is my own (i.e cars or houses), then can I also use these recordings without consent?

Also, what's your best advice during search and seizure? Call a lawyer to supervise perhaps? Is it good to have some papers prepared? If the police are seizing electronic equipment how can you record the search and seizure and control for planted evidence? Any experience or best practices for this?



Sorry about the delay.  I have been out of town.  The one-party/two-party laws are about the legality of the recording...they don't have anything to do with the admissibility of the recording, generally.  Remember, the constitution only protects you from illegal searches by the government.  If a private person obtains evidence illegally, it is almost always admissible.

There may be some states that have specific rules of evidence that preclude illegally obtained recordings, but they certainly don't apply if the recordings are used for impeachment of a witness..

The other side, of course, is that if the recording is illegal, you can be subject to penalties for making the recording...this is completely separate from the other matter.  If you are in a one party state, however, you are not subject to the laws of the other state.  You can't be hailed into court in the other state for recording the phone call in your hypothetical


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InvisibleEnlilMDiscord
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Re: Ask a defense attorney [Re: Diploid]
    #16598039 - 07/27/12 06:38 AM (11 years, 9 months ago)

Quote:

Diploid said:
Say I'm caught selling drugs and my laptop where I keep the contact info for all my customers and accounts is confiscated. The cops (or a judge) find that I use encryption to protect my data and they demand my password.

Can I be compelled to give up the password? Considering that I'm being asked to give up the content of my mind, it reads like testifying against myself. On the other hand, passwords have been likened to keys in my pocket which can be confiscated to open a safe containing incriminating documents.

What if my password is the phrase "I am a drug dealer." and so by giving up my password, I've now been compelled to give a confession without consent?

I know there is still very little case law, but what's your take on how this will eventually be resolved?



As of now, it appears that you can be compelled to give up your encryption keys.  The 5th amendment does not protect you from every possible forced-disclosure.  It is a very limited protection against testifying against yourself in a criminal trial.  As you mentioned, it doesn't protect you against any possible disclosure of evidence. 

Evidence found on a laptop is not testimony, and is, at best, circumstantial evidence of a crime.  The 5th doesn't really protect you here.

This area of the law is emerging, and it is likely to be eventually clarified quite a bit.  Until then, I predict that compelled disclosure will be more of the rule than the exception.


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InvisibleEnlilMDiscord
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Re: Ask a defense attorney [Re: CidneyIndole]
    #16598044 - 07/27/12 06:41 AM (11 years, 9 months ago)

Quote:

CidneyIndole said:
I thought my sources credible, when I learned that in such a scenario, (in a traffic stop) they only have the right to detain you so long as it takes to run your information and / or write you a citation, and that for them to detain you longer would constitute a "field arrest." At which point they need probable cause or reasonable suspicion to hold you....

Please do correct me if I'm wrong, and where you think that may be.


Could have sworn I read a case where a guy with a whole trunk full of cocaine was thrown out on this basis.... though don't quote me on that one, as I may be mixing up cases there



This is generally correct...The line between the two lies in how "reasonable" the timeframe is... we know that 10 minutes is reasonable, and we know that 2 hours is not...in between that..it could go either way.


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InvisibleEnlilMDiscord
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Re: Ask a defense attorney [Re: Anonymous #8]
    #16598113 - 07/27/12 07:09 AM (11 years, 9 months ago)

Quote:

Anonymous said:
say one is trying to be proactive and look for a good lawyer in the case that something ever happens, how would you suggest seeking out a good criminal defense lawyer? one who would be useful and experienced in federal level cases? i know usually you would look for ex prosecutors but im wondering if that still is the case if the case is federal.

can you really talk to them? should one speak in hypothetical terms? in 'my friend' terms? should one speak to them at all prior to a case? should one pay him before talking to him so he is covered under attorney client privilege?

is seeking out a lawyer before there is even a case to speak of, a guilty action of it's own? how up front can you be with a prospective lawyer?



This answer will be long because I think there is a bit of a confusion about how attorney-client privilege and duty of confidentiality work.

First, seeking out a lawyer is never a guilty action of its own.

Second, paying a lawyer has no bearing whatsoever on attorney client privilege or duty of confidentiality.  If you're talking to a lawyer trying to decide whether or not to hire him, and you give him confidential information...it's protected...it doesn't matter whether you've paid him or not.

On to attorney-client privilege and duty of confidentiality...I put them together because one is a subset of the other.  Every privileged communication is confidential  although not every confidential communicationn is privileged...

A/C privilege only refers to information that a court cannot compel the attorney to disclose.  This includes anything you tell the attorney about the case.  It also includes anything the attorney tells you that, if revealed, would also reveal what you told the attorney.  This does NOT include documents you give to the attorney...or any physical evidence..

Confidential information is everything else that you give to the attorney...documents, physical evidence, etc..  This stuff is not privileged, but the lawyer still has a duty not to disclose this shit...The duty of confidentiality goes on forever...even after the client's death.

From here on out, I'm going to talk about the duty of confidentiality since it is the larger set, and any situation that allows confidentiality to be broken also defeats the privilege.

So, you asked about giving lawyers incriminating evidence...here are some things that you can count on as absolutes:

1.  If you tell your attorney that you murdered 100 women in 40 states, he can never reveal that under any circumstances without your consent or waiver (waiver can occur if you tell other people)

2.  If you tell your attorney that you are going to murder 1 woman in the future, he can reveal that (and in many states, MUST reveal it if necessary to stop you)

The difference here is the past/future issue...you can always tell your lawyer anything that you did in the past...The only exception is where you used the lawyer's services to harm another.  If you do that, he has to take all steps necessary to right the wrong done.  talking about future deeds is another matter.  From here on, we're only going to be discussing future deeds..

The rules about this are found in the "Rules of Professional Conduct" and vary slightly from state to state.

If you tell your lawyer about a plan to cause bodily harm to someone in the future, he has a duty to try to stop you.  If that requires disclosure, then he must do that.  Some states make this mandatory only if it is "serious bodily harm" and optional if it is simply bodily harm.

If you tell your lawyer about a plan to cause pecuniary (financial) harm to another, then the lawyer has the option of disclosing...in a few states, this is a mandatory disclosure scenario as well.

If you tell your lawyer about how you plan to use HIS SERVICES to harm someone else, he has to withdraw or dissuade you from doing it.

If you tell  your lawyer about a crime you're going to commit in the future that will not harm someone, he can't disclose, but he has to try to dissuade you and can't help you do it or give you advice about how not to get caught.

That's the basic landscape of the law here.  If you read the rules of professional conduct in your state, it will be more specific.  They aren't long and are pretty easy to read.

As far as my advice for seeking out a crim lawyer...use an ex-public defender or an ex-prosecutor....trial experience is everything, and you don't get that in a private practice.


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Re: Ask a defense attorney [Re: Enlil]
    #16598132 - 07/27/12 07:15 AM (11 years, 9 months ago)

Tell me have you ever heard of a case where someone was harangued by the police for simply having microscopic spores mailed to their home? Everyone on here has said no but as a lawyer you may have come across a situation such as this scenario.


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Re: Ask a defense attorney [Re: Enlil]
    #16598181 - 07/27/12 07:29 AM (11 years, 9 months ago)

Awesome thread, thank you Enlil!
I don't really have a question, but frequently people wonder about legal aspects of posting on the Shroomery.
If you feel like writing on the subject of grow logs or posting pics whatever I'm sure the post would be bookmarked by a lot of people.


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InvisibleDiploidM
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Re: Ask a defense attorney [Re: Enlil]
    #16598242 - 07/27/12 07:55 AM (11 years, 9 months ago)

So I'm arrested and convicted of some crime. Then I apply for a job somewhere and a records company finds the conviction in my background check. At some point I manage to get the record sealed or expunged, but the records company is still aware that it once existed and keeps it in their database.

Now I apply for another job and, although the record officially doesn't exist, the records company still has it in their database and tells the employer that in fact I was convicted even though the official record doesn't exist any more. So I don't get the job.

Am I fucked or do I have recourse to demand the records company erase their knowledge of my now-sealed or expunged conviction?

Also, what if a state judge orders the record sealed, but the FBI doesn't do it and it remains a matter of public information. Do I have any recourse in this case?

Thanks for taking the time to answer all these questions. You rock. :thumbup:


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1) You can't get married to your spouse who is the same sex as you.
2) You can't have an abortion no matter how much you don't want a child.
3) You can't have a certain plant in your possession or you'll get locked up with a rapist and a murderer.

4) We need a smaller, less-intrusive government.

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Re: Ask a defense attorney [Re: Diploid]
    #16599357 - 07/27/12 12:00 PM (11 years, 9 months ago)

I believe i have the answer for the forced disclosure of a password. Simply say "i forgot". They will not believe you but you can say you were testing out encryption and encrypted some unimportant file, you forgot what was on the file, and did it as a test. It was so unimportant you never went back to it and eventually forgot the pass phrase.

This differs from "i will not tell" in that you are not saying you have it and are refusing to give it up. Claiming you lost the passphrase and are not capable of recovering it puts things in a whole different perspective. Saying "i forgot" has worked in many other situations including high govt officials covering up illegal behavior. The court can compel certain acts under threat of contempt of court and journalists, for example, have been imprisoned up to 6 months in one case i remember and maybe longer in one or two others. Eventually they were released. But they were openly defying the court.

Forgetting is not a crime so i believe this would help you. If what is on the file will send you away for a long time, even a month or two on contempt will be much better and a good lawyer might be able to get you out of even that. But if other people testify you said you knew the phrase and were going to deny remembering it then look forward to a fairly long contempt term. But a felony conviction will be worse and may involve years in prison so it would still be the lesser of the evils. Sort of like most presidential contests. :wink:


--------------------
“A democracy cannot exist as a permanent form of government. It can only exist until the voters discover that they can vote themselves largesse from the public treasury. From that moment on, the majority always votes for the candidates promising the most benefits from the public treasury with the result that a democracy always collapses over loose fiscal policy, always followed by a dictatorship.” (attributed to Alexis de Tocqueville political philosopher Circa 1835)

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Re: Ask a defense attorney [Re: Stonehenge]
    #16600308 - 07/27/12 02:41 PM (11 years, 9 months ago)

I believe i have the answer for the forced disclosure of a password. Simply say "i forgot".

That won't work if the judge doesn't believe you.

If you can convince the judge, then you're good to go. But ask yourself if you would believe it if YOU were the judge. Some guy is traveling around with a test laptop to test encryption software? Seems pretty far-fetched to me. If you're testing it, why are you traveling with it? Shouldn't it be back on your bench where you can, you know, test it and stuff, not in your luggage at an airport?

Would YOU believe that story? I wouldn't. I'd lock you up for contempt. Especially of some cop testifies that he saw you using it recently.

even a month or two on contempt will be much better

I don't believe there is any limit on how long you can be jailed for contempt if you refuse to cooperate.


--------------------
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1) You can't get married to your spouse who is the same sex as you.
2) You can't have an abortion no matter how much you don't want a child.
3) You can't have a certain plant in your possession or you'll get locked up with a rapist and a murderer.

4) We need a smaller, less-intrusive government.

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Re: Ask a defense attorney [Re: Diploid]
    #16600701 - 07/27/12 04:07 PM (11 years, 9 months ago)

>Some guy is traveling around with a test laptop to test encryption software? Seems pretty far-fetched to me. If you're testing it, why are you traveling with it? Shouldn't it be back on your bench where you can, you know, test it and stuff, not in your luggage at an airport?

Now you are conjuring up some odd scenario involving an airport and traveling around. Not sure where that came in or what relevance it would have. I said it was a test you had made some time back.  I don't see what is so hard to believe about forgetting something.

>Especially of some cop testifies that he saw you using it recently.

Why not toss in a confession while you are at it? sheesh!

>I don't believe there is any limit on how long you can be jailed for contempt if you refuse to cooperate.

You are missing the whole point. You are willing to cooperate but not able due to forgetting something. Most of us have forgotten passwords at some time or other. A court can order you to do things but if you are physically unable then jailing you for contempt is an abuse of power. And yes, there are limits to everything. The longest i recall hearing of anyone jailed for contempt was about 18 months and it was willful refusal. It is not clear if you can be forced to give evidence against yourself and demanding someone remember something they have forgotten and then punishing them for not being able to do it would be a violation of the constitution for sure. Judges have  higher courts looking over their shoulders for abuses of power.


--------------------
“A democracy cannot exist as a permanent form of government. It can only exist until the voters discover that they can vote themselves largesse from the public treasury. From that moment on, the majority always votes for the candidates promising the most benefits from the public treasury with the result that a democracy always collapses over loose fiscal policy, always followed by a dictatorship.” (attributed to Alexis de Tocqueville political philosopher Circa 1835)

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Re: Ask a defense attorney [Re: JesseWhite780]
    #16601654 - 07/27/12 07:02 PM (11 years, 9 months ago)

Quote:

JesseWhite780 said:
Tell me have you ever heard of a case where someone was harangued by the police for simply having microscopic spores mailed to their home? Everyone on here has said no but as a lawyer you may have come across a situation such as this scenario.



No...I've never heard of it.


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Re: Ask a defense attorney [Re: Diploid]
    #16601703 - 07/27/12 07:13 PM (11 years, 9 months ago)

Quote:

Diploid said:
So I'm arrested and convicted of some crime. Then I apply for a job somewhere and a records company finds the conviction in my background check. At some point I manage to get the record sealed or expunged, but the records company is still aware that it once existed and keeps it in their database.

Now I apply for another job and, although the record officially doesn't exist, the records company still has it in their database and tells the employer that in fact I was convicted even though the official record doesn't exist any more. So I don't get the job.

Am I fucked or do I have recourse to demand the records company erase their knowledge of my now-sealed or expunged conviction?

Also, what if a state judge orders the record sealed, but the FBI doesn't do it and it remains a matter of public information. Do I have any recourse in this case?

Thanks for taking the time to answer all these questions. You rock. :thumbup:



Expungements work slightly differently in each state, but the basic process is that the original guilty plea (or verdict) is set aside, and the charges are dismissed.  This means that you don't have a conviction on your record at all...

Having said that, it can still be found sometimes...and the cops certainly can see it in their database.

Having a record sealed usually refers to the sealing of a juvenile record when one reaches adulthood...these are not publically viewable...but in some states, the cops can see them...in other states they cannot.  In every state, however, juvenile record can be used as a factor in sentencing...and therefore can be used as a factor in setting bail...

As far as recourse against a potential employer...usually, you have none.  In most states, an employer can consider any factor, including arrests without convictions...or even a reputation...in hiring decisions.  Only in states that specifically preclude an employer from considering certain types of offenses would you have any recourse at all...

As far as who to sue, that's going to depend on the business relationship between the record check company and the employer.  The record company isn't a "credit reporting agency" under the FCRA, so they aren't subject to all of the accuracy and dispute laws that exist for credit reports.  Most likely, you only have a suit in general libel for a false statement that tends to hurt your reputation...only question is:  Is it really a false statement to claim that you've been convicted?  This is a tough sell in court, imo.

RE: the fbi file...That is not public information as far as I am aware.  I do not believe that you can get someone else' fbi file without consent.  I could be wrong here, but this is what I believe to be true.  The fbi certainly has no need to follow some random court's order, however...The court can only order those who are under the jurisdiction of the court, and unless the fbi is somehow a litigant...it is under no obligation to follow the state court's order.


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Re: Ask a defense attorney [Re: Diploid]
    #16601717 - 07/27/12 07:15 PM (11 years, 9 months ago)

Quote:

Diploid said:
I don't believe there is any limit on how long you can be jailed for contempt if you refuse to cooperate.




I believe the record is 14 years...


http://www.loweringthebar.net/2009/07/lawyer-jailed-for-contempt-is-freed-after-14-years.html


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