khobragadeThose that continue to subscribe to the notion that US jurisprudence is the best system in the world should consider the following. The corner stone of the US legal system is the notion of the “presumption of innocence”. In order to subscribe the notion that the accused are presumed innocent it is important to accept that punitive action against an accused violates this doctrine. In “Presumption of Innocence is a Fallacy in American Jurisprudence: The Aaron Hernandez Case” I showed how the presumption of innocence is a false premise. Now consider the following two latest examples.

India-US Relations: The Khobragade Affair

Last week one of India’s diplomats was arrested and charged with visa fraud. Devyani Khobragade, who was India’s deputy counsel general at the time, was arrested in New York City. Ignoring for the purposes of this post, the issue of diplomatic immunity and US-Indian relations, let’s focus on the notion of the “presumption of innocence”.

According to government and new media sources, Khobragade was arrested and charged with a crime. As part of the process, Devyani Khobragade was stripped searched before being put in a holding cell. Keep in mind that Khobragade was charged with a non-violent and not drug related crime therefore the notion that she had contraband on her person is wrong. Furthermore there is no indication that Devyani Khobragade was uncooperative during the arrest and therefore she should not have been considered a danger to herself or others.

According to the US Marshals Service, a strip search is part of the arrest process for all arrestees.

Remember, the arrest is supposed to be a process of charging an individual with a crime and making sure the individual will be available to answer the charges. Under the doctrine of “presumption of innocence” there should be no punitive sanction against an arrestee.

I believe any normal minded person would agree that the indignity of a strip search is punitive in nature.

Accepting that a strip search is punitive in nature than it should stand to reason that a cavity-search would be even worse. In the case of Devyani Khobragade there are conflicting reports on whether a cavity search was performed on her. However all reports agree that she was stripped searched as part of the arrest process.

Jane Doe Cavity Search Lawsuit

On December 18, 2013, lawsuit was filed by a 54-year old US Citizen. The individual has asked the court to allow her to remain anonymous because of the “sensitive nature of the events”. According to the lawsuit, “Jane Doe” was returning from Mexico on December 8, 2012 where a drug sniffing dog alerted towards her after she had been selected for further inspection by Customs and Border Patrol agents.

According to the plaintiff, for six hours she was subjected to being stripped searched, an observed bowel movement, cavity searches and a CT scan. After various invasive searches of her body at the local hospital, the plaintiff was released from custody without any charges filed.

This type of degrading treatment by border patrol agents on the US-Mexico border is whispered about regularly with many individuals too afraid to report or unknowledgeable enough on their rights to pursue the matter in the courts.

Although the lawsuit is in its infancy we should accept that the following are factual elements of the case. First, that the plaintiff is a US citizen whose body was searched for contraband and after a period of time she was released without charges being filed. Although I have no doubt that the narrative of the invasiveness of the plaintiff’s body is accurate I have not seen evidence to substantiate them. However for the plaintiff to have gotten to the point of filing this lawsuit I believe that she was humiliated and violated by the judiciary in order to ascertain whether she had contraband on her body.

Consider these two recent cases as you think about the cornerstone of the US judicial system; the presumption of innocence. I believe we can all agree that invasive body searches during an arrest or in search of a crime are punitive in nature and therefore are not presuming innocence.

The question then becomes how can anyone defend the US judiciary as one of the best in the world when its cornerstone is shown to be false?

Martin Paredes

Martín Paredes is a Mexican immigrant who built his business on the U.S.-Mexican border. As an immigrant, Martín brings the perspective of someone who sees México as a native through the experience...

12 replies on “How Can US Jurisprudence Be Considered Fair When Individuals Are Punished Before Trial?”

  1. So where in your discussion does prisoner safety come into play? Probably not at all. Prisoners are stripped searched and cavity checked to prevent the introduction of contraband materials from being smuggled into the facility.

    Drugs, weapons, cell phones… have all been smuggled into prisons and other detention facilities in the past. The officers at the holding/processing facility don’t know her from Adam and I might guess there are multiple prisoners brought in that claim “diplomatic immunity” or some other condition/status while they are being processed.

    Without trying to go racial/sexist/or what ever, how are prisoners in India treated/handled when they are arrested?

    Despite this being the 21st Century, Indian society and culture is still firmly planted in the middle of the caste system.

  2. In below suit they had a warrant…its very sad…I think UMC etc for indemnify lawsuit reasons can have a policy preventing for ethical reasons but my guess without research is that UMC may not have to pay lawsuit damages…because of the overbearing police presence UMC will most likely argue duress or good faith defenses…it needs a lot of legal research etc no doubt ICE etc have policy in place…this would be a Bivens Action Lawsuit.

    DEMING, N.M., Nov. 6 (UPI) — A New Mexico man is suing police for allegedly forcing him to undergo three enemas and a colonoscopy in a vain search for drugs.

    In a civil rights suit filed in U.S. District Court in August, David Eckert of Lordsburg said his ordeal began when he was arrested for failing to stop at a stop sign at a Deming, N.M., Walmart in January

    In the suit, Eckert said he was told by an officer that he was “known in Hidalgo County to insert drugs into his anal cavity.” That was untrue, the suit said.

    When a doctor at one emergency room refused to conduct an anal search, the suit said, Eckert was taken to a second emergency room in nearby Hidalgo County, where an officer performed a digital search of his rectum.

    Eckert said he was forced for defecate in front of officers and medical personnel, but when the enemas, colonoscopy and an X-ray failed to discover drugs, officers drove him home.

    The suit, which calls a search warrant for his person faulty and names Hidalgo County deputies and Deming police, asks for unspecified damages.

  3. The way America handles equality is to treat everyone equally, even when it is mindless to do so. Like the TSA goons feeling up your white grandmother and molesting 2-year olds. I read the story of the woman who was invasively searched without a warrant here at UMC and it made me sick to think that this happened in my country. Even if she wins a lawsuit, I doubt anything will change.

  4. Until it happens to you or yours.

    Yes, I am sure that when Ms. Khobragade got up that morning she thought ‘Ah, today I’m going to be arrested, this will provide me the opportunity to smuggle drugs, weapons, cell phones‘. But what the heck, ‘she’s from a society and culture that is firmly planted in the middle of a caste system‘ so the presumption of innocence does not apply.

    What about the other cases, the woman in El Paso and the man from Deming? They too claimed ‘diplomatic immunity’?

    1. Your sarcasm does not go unnoticed… You miss the entire point that I presented. Look at it from the officers point of view. That is all I am asking.

      Anyone can claim diplomatic immunity; even you or I. However is there an actual basis for the diplomatic immunity claim?

  5. There is also a lot of late news re mugshot websites re innocent until proven….third party sites are demanding cash ie extortion? to remove mugshots of even the those found innocent in a court of law. What the Media does with a mugshot is a lot different than what a police website does with it unless a fugitive…it creates the a ‘usual suspect’ etc police mugshot shaming websites are pre-conviction punishment in violation of 14th Amendment.
    New York state has banned police mugshot websites as a violation of the NY Constitution….more to follow with recent news….

  6. It seems that the more we learn about the abuses of law enforcement/system of laws, the more reluctant we are to accept the fact that it is not the best in the world, that there are major problems that we need to address. More than likely this is because of the ingrained notion of ‘American Exceptionalism’. Add to that all those ‘terrorists’ that our government keeps manufacturing, well the more eager we are to skip due process and just high ‘em high.

  7. When we read stories like this one it makes us aware of the frailty of protection we as Human Beings are being afforded.

    This is yet another abuse of the Legal System on El Paso Taxpayers. Hopefully channel 7 gets our community answers by following the story: The El Paso Council of Judges has approved a pay increase for court-appointed attorneys saying the lawyers are underpaid, while some County Commissioners say the process by which the attorneys are appointed is not transparent and the increase is harmful to taxpayers.

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