After federal and local authorities raided Ilana Lipsen’s Alpine, Texas, store in search of illegal drug evidence, there was a dispute over what happened that day. Lipsen told reporters that Drug Enforcement Administration agents at the scene violently threw and kicked her sister Arielle, who was charged with assaulting federal agents. Prosecutors countered they never beat her.
But before the case could be adjudicated at trial, a federal judge included an extraordinary requirement as a condition of Ilana’s release from jail pending trial: She had to revoke her statements to the media and apologize.
“It looks like the judge is stepping in to side with the prosecutor, undermine her right to trial, and place a massive thumb on the scale,” said Eric Miller, a law professor at Loyola Law School, Los Angeles, who has studied bail conditions. He said the requirement was likely an unconstitutional condition of release.
Lipsen was arrested after a raid on her store, the Purple Zone, which markets itself as selling “electronic cigarettes, accessories for electronic cigarettes, eJuice, novelities, organic body lotion, pipes, tobacco products, and we’re also a hookah lounge,” according to Ilana. Federal authorities charged her with receipt of ammunition while a state indictment was pending, and jailed her until a bond hearing.
At the hearing May 16, U.S. Magistrate Judge Dwight Goains signed off on a bond order that states in a hand-written addendum that Lipsen must “provide a letter of apology to both local newspapers in Alpine, TX, advising DEA had a legitimate reason to execute a warrant at her business.” It later adds that she “will advise media … that her sister Arielle Lipsen was not beaten by agents carrying/using a M16 rifle, and her sister instigated/assaulted agents.” Ilana agreed to write the letter in exchange for her freedom.
Individuals who are arrested but not yet convicted of crimes are often held in jail pending their trial. The purpose of holding them is to prevent them from fleeing before their trial, and sometimes to prevent them from committing other crimes. Defendants who are released on bail are often given terms aimed at these goals. Large payments are the most common term, for example, because an individual must appear in court to have the money returned.
Conditions that are not tied to these goals, however, may violate a defendant’s constitutional due process rights under the Fifth Amendment, particularly where they are coercive, and where a defendant was not represented by a lawyer at the hearing. Although Lipsen was represented by a lawyer, Lipsen’s freedom was tied to her retraction of statements she made to the press — giving her incentive to say the statements were false even if she believed them to be true. They may also violate a defendant’s Eighth Amendment right against cruel and unusual punishment.
Ill-fitting bail terms are not unusual. In a 2012 New York Times op-ed, Miller pointed to other cases in which defendants were required to read and write book reports, buy their spouse flowers, and stop consuming alcohol after 6 p.m. — all to get out of jail before a conviction.
But in this case, the requirement that Lipsen retract her statements to the press also imposes a very heavy burden on her First Amendment free speech rights, and possibly her Fifth Amendment right against self-incrimination. “She surely has free speech rights to complain about the government,” said Miller. “Two, this has to undermine either her or her sister’s ability to negotiate a plea or enter certain types of defenses at trial, so she’s now being forced to be a witness against her sister if not against herself, which one would think … may undermine that Fifth Amendment right.”
Bail hearings are typically very short — less than a minute each in many cases, without much time or opportunity to dispute factual questions in the case. There is an unresolved dispute about whether agents attacked Arielle Lipsen, but several witnesses who spoke to reporters corroborated Ilana’s claim that officers beat Arielle. But in statements to the press, the DEA is now citing Lipsen’s retraction as proof that they did nothing wrong.
There is also little record of these hearings, and Miller said those monitoring the law in this area typically only know about those stories that make it into the news. “It is rare that these decisions make it into the public domain because the decisions aren’t published,” he said.
Miller said Lipsen may also have a claim that her lawyer provided ineffective assistance under the Fifth Amendment. Lipsen has since obtained a new lawyer, who did not return a call to ThinkProgress before press time.