"The protection in the Fifth is to prevent a perverse system of coerced confessions, where innocent people can be placed on the stand and forced to falsely confess before the court."
That's what's happening here. It has led to an extreme corruption of justice where a defendant's rights are violated until he testifies against himself (which also violates his rights, so a Catch-22 situation). He is compelled to testify against himself (5th). He was not given a speedy trial (6th). He was punished in a cruel and unusual manner with life imprisonment despite not being convicted (8th). He is guilty until proven innocent.
All because he refuses to talk. This particular defendant clearly does NOT have the right to remain silent. In which case, that must not be a right. In which case, the 5th amendment either doesn't exist or is being violated.
We don't even know if this guy has the password. We don't even know if there is any actual data on the drives at all. He hasn't been convicted of anything. Yet he's spending the rest of his life, potentially, in jail because he refuses to be coerced by the corrupt government or does not have the information they want.
>He is compelled to testify against himself (5th).
The courts do not agree with that interpretation. Defendants and witnesses are required to comply with subpoenas and warrants and produce documentation on demand, unless they can satisfy the court that production of said documentation is potentially inculpatory and that providing it rises to the level of testimonial self-incrimination under the facts of the case. That's going to vary and the accused may win a lawsuit to confirm that that is indeed what's occurring in this case. At the moment, it's an unsettled question.
>He was not given a speedy trial (6th).
He hasn't been arraigned, so of course he can't be tried. He's been detained for contempt. If he wants a speedy trial, he can comply with the court order that allows the investigators to continue with his case, and he can go free in the mean time.
Perhaps contempt-of-court needs to be reworked such that indefinite detention under it is not allowed, but that's not a constitutional issue. Contact your representatives and let them know you want this law passed.
>He was punished in a cruel and unusual manner with life imprisonment despite not being convicted (8th).
He can end his detainment at any time by complying with the court order. He is willfully keeping himself imprisoned. He has not been sentenced and, theoretically, will be free to go once he complies with the court's order. It is very likely that he has chosen incarceration and a constitutional challenge because he prefers the remote possibility that he may win this challenge to the near-certainty of a felony sex crimes conviction if he complies.
>He is guilty until proven innocent.
It may be that some type of check on extended contempt detainments is appropriate. For example, convening a jury to evaluate the accused's ability to comply every 90 days may be wise.
But practically speaking, he is not guilty; he is being detained because he refuses to comply with a court order. If the court is unable to enforce its orders any time a person says "Sorry, I don't remember how to do that", its authority will vanish.
I understand the contention is that decrypting disks is testimonial self-incrimination. That's the issue before the court, and for whatever reason (which could probably be looked up), the courts hearing that issue declined to stay the original order while the issue pends.
I personally do not find that argument convincing, as the contents of the disk need not, and indeed cannot, be altered by the accused to plant a "false confession" merely by unlocking them. Any evidence revealed by the decryption would've been as it was before any threat or incentive was issued.
Courts have ruled on a variety of occasions that complying with requests to furnish evidence which may be inculpatory does not by itself rise to the level of testimonial self-incrimination. Imagine the fallout from a world where the courts did indeed rule that the defendant was not required to comply with any subpoena, warrant, or order that may reveal criminal behavior. Our system would fall apart right away.
The 5th is not designed to allow people to destroy or hide evidence. It's designed to prevent inquisitions, where a person's guilt is determined based on the linguistic trickery and/or the direct threats made by an inquisitor, instead of an evidentiary standard that must be proven. The 5th amendment still allows for confessions and it still allows the police to require accused individuals to furnish evidence and documentation, it just provides a protection to check the prosecutor's incentive to force false confessions.
>All because he refuses to talk. This particular defendant clearly does NOT have the right to remain silent.
There is no absolute "right to remain silent" in the United States. There is only the right to refrain from testimonial self-incrimination. Judges can and do regularly order persons to provide legitimate answers to questions, orders, and subpoenas if they cannot satisfactorily demonstrate how responding to them could reasonably jeopardize this right.
>We don't even know if this guy has the password.
True, there's no way to know that with certainty. However, there is a way to know beyond reasonable doubt. His regular use of the computer necessarily required him to unlock the disks. It's clear that at the time the order was issued, he knew how to do it.
Perhaps he can make the case that sixteen months after the fact, he is no longer able to recall the passphrases, and maybe that's his strategy; at some point, as time wears on, this will have to be considered credible.
That's what's happening here. It has led to an extreme corruption of justice where a defendant's rights are violated until he testifies against himself (which also violates his rights, so a Catch-22 situation). He is compelled to testify against himself (5th). He was not given a speedy trial (6th). He was punished in a cruel and unusual manner with life imprisonment despite not being convicted (8th). He is guilty until proven innocent.
All because he refuses to talk. This particular defendant clearly does NOT have the right to remain silent. In which case, that must not be a right. In which case, the 5th amendment either doesn't exist or is being violated.
We don't even know if this guy has the password. We don't even know if there is any actual data on the drives at all. He hasn't been convicted of anything. Yet he's spending the rest of his life, potentially, in jail because he refuses to be coerced by the corrupt government or does not have the information they want.