This is arrested with Mike Brooks and Atlanta criminal defense attorney. Dan conaway. Welcome to arrested with your host, Mike Brooks and criminal defense attorney. Dan conaway. We covered what the criminal justice system was or, or what it is and how big it is. You know, we always, we always here and we even heard during the during judge Kavanaugh, the, uh, the confirmation hearings, uh, over over almost 40 hours of testimony and questioning by the United States Senate Judiciary Committee. We heard one thing come up all the time and that was due process. What the hell is due process and you know, what is it, what makes up to process it? And what is it really? What does it really meet? Dan? That's a great question. All right, so let me try to it. Try to break it down. Break it down for us commoners. Really, we hear about it all the time, but what due process, let's try to keep it simple. Exactly. That's for me. You need to do that. So when you think of due process, you have to think first, foremost of our constitution and it really does start there. The Fifth Amendment and the Fourteenth Amendment both preserve our rights to due process. Okay. One with respect to the states,, that's the 14th, the other with respect to the federal government, that's the fifth, the whole idea is that both the states and the federal government, meaning the government and all its awesome power that the government has over us citizens. They have to, the government of the United States and each state, has to respect the due process rights of every single American period. That's what it's about. Now. Within due process, you have two terms and I'll throw them both out. Okay. Is there's really two types of due process. One is called substantive due process, but what the heck is substantive due process? Frankly, what's what that is, is those are your rights. When you think of like for example, your right to free speech. Okay. Your right to freedom of religion. Your right to own a gun though your right to be indicted by a grand jury. It was just in the fifth amendment. Yup. These are all substantive due process rights. Okay. In other words, due process, that's substantive due process because there are rights that you have as an American, they're based in natural law. They're based in concepts of western human rights. Some of them go back to the ancient Greeks and they've been developed through the years and then others come forward. The second part is procedural due process, procedural due process. That's the process itself. I gotcha. Like for instance, if you get accused of a crime. Sure. You have the right to a jury trial. The judge can't come in and say you're guilty, so you have a right to a jury trial, but you also have a right if you want. It's up to you. You know, know if you confer with your attorney, you have a bench trial that the judge is going to hear. The only way that's going to happen is if you choose and you the citizen choose hopefully with advice from your lawyer to waive your right to a jury trial. Okay? So for instance, your right to be read your rights, your Miranda rights and certain situations, uh, your right to remain silent. So forth and so forth. We're going to talk about that. Yeah, all this kind of stuff. These are all procedures that are put into place to make sure that people, people's substantive rights are protected and that they receive proper due process. Why is this important? Well, now we go back to The Beast.(from Dan's Conaway's best selling book,"Arrested") Why is the beast the beast? the beast is the government The government can take away your life, liberty and/ or property from you. Absolutely. And so therefore, but they can only do it if they follow due process. Let me give you a couple of examples of what we're talking about. One of the earliest examples of due process is talked about in Magna Carta really, which was written in 1215. That's it goes back a long way as long way. Sure. And basically it was a bunch of noblemen in England who were really ticked off at King John because King John kept taxing them to get more money, to raise more funds, to go fight wars in France. Oh, going to hear about taxes and the Brits. Okay. saw this coming. King John, quite frankly, wasn't a very good soldier. He kept losing. So not only did he tax the nobles and take all their money to go fight these wars with France, then he lost them. So doubly bad, right? So they finally got tired of old King John, the nobles, and they made him sign this magna Carta at this field called runnymede. And in it it talks about the process. It says, King, you may be the king, you may be anointed by God on high to be our king, but you will not take our money and tax us without proper due process. So it actually talks about it. So because you can go all the way back to the ancient Greeks and find concepts. But, even back then, did people really understand what due process was? They understand the government is the beast. We've established that. Gotcha. They understand that government has a tremendous amount of power. Why? Because the king's soldiers, the sheriff's department, the FBI, whoever it is can snatch you up and throw you in a cage and lock you in there. That's pretty powerful. It's pretty powerful. The police have the right to actually kill you. Shoot you, for instance, under certain limited circumstances, right? That is the right to use force. So this is. These are awesome powers, cages, guns, shooting death, right, right. Awesome power. Okay, so we need some due process to make sure that if our rights, our liberties, our property are threatened. That is done properly. Let me give you one other example of, hey, by the way, folks, you're listening to arrested with your
Speaker 2:host, Mike Brooks and criminal defense attorney. Dan Conaway, go ahead Dan.
Speaker 1:Alright, so let me give you. Let me give you a, a, another country and other place with less due process. You remember a gentleman named Saddam Hussein? Hm? Yes. Very well. All right, so this was Saddam Hussein's due process. Let's say he didn't like you. His secret service would pick you up in the middle of the night, drag you out of your house, put a hood over your head and you'd end up in the outskirts of Baghdad, somewhere in a room filled with people, you know, officers and so forth and saddam would be sitting there smoking a cigar and accuse you of whatever he felt like accusing you of. And then you had the right to protest and say you didn't do whatever he accused you of, hey, that didn't work, and then they pretty much hung you before dawn and then your body's probably dumped in a river or whatever. That's due process that was due process under that was due process under Saddam Hussein. Wow. So we don't. I don't like that due process. I don't like it either. And our founding fathers didn't. And and also quite frankly, police officers, prosecutors, judges, defense lawyers, any you talk to anybody involved in the criminal justice system, they have a really inate, it is almost part of our DNA in this country, an innate understanding that due process protects all of us on our rights and so it's very much respected by everyone in most circumstances. But it's also why when someone feels that their due process rights have been violated, that they get so upset because it's that intensive feel. It's that it's a very intense feeling because it's part and parcel of who we are as a society, as a country
Speaker 2:and and, and due process. From what I'm hearing, it starts from the time. Unfortunately, you're, you get arrested from the time you are arrested until the time if you're found guilty that you're sentenced, but the due process even goes further than that. It goes all the way into the appeal process as well as that. Is that, is that pretty accurate?
Speaker 1:That's accurate. And one of the things that I talk about my book arrested battling Americans, criminal justice system.
Speaker 2:There's a great book by the way, if you have, if you haven't picked it up, is it on Amazon? It's on Amazon. Okay, great. Definitely it's by Dan Conaway, esquire.
Speaker 1:Um, yeah. So when you talk about, when you talk about sort of the rights, the protection, all of this stuff, when I talk about in the book is that it really is a soup to nuts process where it does start when you're arrested, if you're arrested or charged and actually, it begins even before that, many times, especially in the federal system where you don't get arrested, but you come under federal investigation by the FBI or, or another organization associated with the federal government. So, due process is always there and it's always part of everything. one of the things about, uh, the respect of due process and doing things right. One of the reasons why it's so important is that it is that it allows whomever, whatever part of the criminal justice system a person's interacting with at that point, whether it's a police officer, sure. Or whether it's an FBI agent with a search warrant for their business at their front door. They usually come between five and seven in the morning. You know, when you're in your underwear and you're standing there during your cup of coffee and boom, boom, boom, search warrant, uh, um, but you know, but it doesn't matter whether you're interfacing with a judge or whomever. Due process defines the rules of the game so that everybody really knows what to do, including, and, and both sides have to know what to do. Absolutely. The defense has to know what to do, the police have to know what to do. And I've had police officers tell me, for instance, like when it looked, when you talk about Miranda rights, sure, they actually like Miranda because it gives them a set of rules to work through. They know what to do. It's the same thing being a criminal defense lawyer, uh, when you're in the courtroom, you know, or when you're filing a particular motion, we want to know what rules are we supposed to follow, judge, what rules do you want us to do? How do we do this here? Same with prosecutors without due process. It's like trying to play a baseball game or a football game without any rules. Yeah, exactly. And you know, you're not gonna get anywhere. So it's an essential part of the process. It makes it fair, protects your civil liberties from soup to nuts, but also without it, you would have utter anarchy and anarchy doesn't help anybody.
Speaker 2:No. Total total chaos. Yes. That definitely isn't something you want. You know, it's interesting too, and the preface of your book arrested, you said, uh, you know, as a practice, as a practicing criminal defense attorney for the past two decades, I wrote this book for three groups of people and I think those are the people that we're talking. We're, we're, we're talking to on, on arrested on the new Talk 106.7, 1) people who have been arrested, who are the targets of criminal investigations 2) people who believed that as good, decent law abiding citizens, they and their loved ones could never wind up in the first group and 3) anyone who wants to know more about how America's criminal justice system really works, and if you want to know how the criminal justice system really works well, that's why you're listening to Arrested at 8:00 AM every Saturday here on the new Talk 106.7 Well Dan we've talked about due process. Now, next coming up, I want to talk about rights. Everyone here goes, I know my rights, but do you really know your rights? We're going to be talking about that with criminal defense attorney Dan conaway and yours truly, Mike Brooks on Arrested on the new Talk 106.7..