Archive for August, 2010
Crime: reality and perception
Aug 24th
Ran across this interesting article in Prospect Magazine from the UK, on the shifting policing and perception of crime, violent and otherwise:
The consequence has been that violent crime—defined as actions which cause injury or serious threats to do so—has fallen steadily for about the last 15 years. The official statistics do not show a fall in violent crime when comparing offences now with those recorded before 2002-03—quite the opposite, in fact. This was because of a foolish agreement which attempted to make recorded crime a perfect representation of reality, so that a crime had to be recorded if reported even if the police officer did not believe it had happened. Moreover, the definition of violent crime was greatly widened, with the result that more than 50 per cent now falls into the category of—wait for it—”assault without injury.” It would be hard to conceive a more perfect weapon for opposition parties to beat a government with—as the then shadow home secretary, Chris Grayling, unhappily showed during the election campaign. This is probably why the new government seems to be casting about for someone other than the home office to be in charge of crime statistics. Perhaps they will even give them back to the police.
In 2008-09, the annual murder rate in England and Wales was 651, lower than at any time in the past decade. Moreover, the number of children under 16 killed by strangers was two. In 2006, UN figures show that England and Wales had 16 murders per million population, far lower than the US at 59 and roughly equal to France, Canada, the Netherlands and Germany. (The figure for Colombia was 611.)
And yet the “broken Britain” mantra remains—not because we have become a more violent society, but because we have become a much more violence-averse society, in which such acts are widely reported and vilified.
It is interesting to see that contradiction exists in other countries besides the US. I know little about the state of television in the UK, but judging by this article it is safe to assume that the strains of the 24 hour news cycle exist there as well, forcing the media to turn every report of crime into a sensationalist warning that crime is on a meteoric rise.
It is also somewhat heartening – deflating? – to see that politicians are politicians the world over, especially when it comes to criminal justice policies.
There are many more interesting themes and points in the article. I recommend reading it all.
CT’s top death prosecutor in federal probe
Aug 10th
I stumbled across this brief news item today, which could have monumental consequences for the death penalty in Connecticut, among other criminal justice issues. Waterbury’s chief prosecutor and former Commissioner of Public Safety John Connelly is apparently the subject of a Federal grand jury investigation, with allegations of improper consideration of his good friend, defense attorney Marty Minella’s clients, in exchange for gifts and vacations, swirling around the courthouse.
Connelly is known by most in the State as the prosecutor who put most of CT’s death row inmates on the row. The proportion of death row inmates from his jurisdiction have prompted valid calls for an examination of the application of the death penalty in Connecticut and allegations of racial and geographical disparity in sentencings and death penalty prosecutions. Connelly has a reputation for being a ruthlessly efficient prosecutor, who makes juries melt in his hands, and up to now, has been beyond reproach.
One can only begin to ponder the implications on the future of the death penalty and the criminal justice system as a whole if this story has any legs, if the federal probe turns into an indictment and a prosecution.
According to several sources who asked not to be identified, the feds are looking into whether Connelly’s ties with Atty. Martin Minnella have grown improperly close, and whether prosecutorial behavior in certain court cases can be connected – directly or indirectly – to gifts, vacations and other emoluments. The sources say federal investigators have seized records from both Minnella and Connelly, and that the list of potential witnesses is growing. Tom Carson, a spokesman at the U.S. Attorney’s Office in New Haven, said only, “We can neither confirm nor deny the existence of a grand jury investigation.”
Connelly has been on the job in Waterbury since the 1980s. Over 25 years, he has developed a reputation as a take-no-prisoners prosecutor who has, among other things, sought, and won, the death penalty in several big cases.
By last count, there were 6 inmates sent to death row by Connelly, of which two had their death sentences reversed. There are currently 9 on death row, excluding those two.
[It's really important for me to state this here: this is based on "anonymous sources" and it is about the very, very secretive federal grand jury. The extent of the investigation may be different, its focus may be different. But I've now heard this from several sources (yes, I have sources), who have other "anonymous sources", so it's pretty clear there's something going on, we just don't know exactly what.]
Another state police lab under scrutiny
Aug 9th
North Carolina, step right up:
This series [by the newspaper Newsobserver], the product of months of reporting, reveals problems far beyond blood analysis. It shows an agency that teaches its agents and laboratory analysts to line up with prosecutors’ case theories. In some cases, they ignore or twist key pieces of evidence. In others, rogue agents range far beyond the rules, sometimes with devastating results.
The newspaper plans to “reveal” new stories every few days or so. This should be fun.
Objects in mirror are as pretextual as they appear
Aug 9th
turn left and go directly to jail
Over 4 years ago, a police officer received an anonymous tip that Gregory Cyrus was driving home drunk. The officer followed Mr. Cyrus, but didn’t observe him driving erratically, which is a feat in of itself given the bullshit usually spewed to justify a stop. Armed with a solid anonymous tip, Mr. Police Officer was at a loss. How was he to stop and arrest this man when he wouldn’t oblige and cross a single yellow line? And then it hit him. He saw Mr. Cyrus driving with what looked like a crucifix hanging from his rear view mirror. “Aha!”, he thought to himself, “I’ve got you now, you-person-who-must-be-drunk-because-someone-told-me-so-and-not-because-I-observed-anything!”
Relying on C.G.S. 14-99(f), the trooper pulled Mr. Cyrus over and arrested him for drunken driving. “Wait, just one Constitutional second!”, said Mr. Cyrus (through his lawyers). “You didn’t have reasonable and articuble artilicuable articulable suspicion to stop me, pursuant to the remnants of Terry v. Ohio!”
A learned trial judge agreed and a former supreme court chief justice reaffirmed that decision. But in the fair not-so-Constitution-al-State (okay, I’ll stop with the hyphenation), a win for the rights of each individual is rarely safe, as there looms the spectre of an almost automatic reversal from the law and order state Supreme Court.
Not today. Not this time. In a split 4-3 decision (more on that in a bit), the highest court of the State upheld the trial and appellate courts, based essentially on one simple proposition: that a stop cannot be based on a hypothetical:
The trial court recognized that there must be more than a hypothetical possibility that the driver’s vision would be obstructed or that he would be distracted to constitute a violation of § 14-99f (c). [Trooper] Mattioli had to have reasonably believed that the statute was being violated or was about to be violated, and he must have been able to articulate this reasonable belief to the court. It would have been improper to conclude that Mattioli reasonably suspected that the chain and cross hanging from the defendant’s rearview mirror was in violation of § 14-99f (c) without regard to whether there was a factual basis for Mattioli to conclude that the defendant’s field of vision appeared to be obstructed or that the defendant appeared to be distracted by the hanging object.
Fundamental rights cannot be submitted to a vote
Aug 4th
Just an hour or so ago, Judge Vaughn Walker of the United States District Court for the Northern District of California issued this 138 page decision ruling that Proposition 8 (or Art 1, Section 7.5 of the California Constitution) is unconstitutional. The decision is lengthy and says essentially all the right things in forcefully rejecting every argument against same sex marriage. You might be inclined to tl;dr it, but I suggest you don’t.
The court finds not only that the California Constitution violates the Equal Protection Clause of the United States Constitution, but also the Due Process Clause. The court, essentially, answers my question from a few years ago: can the constitution be unconstitutional? Yes, it can. Rejecting anti-gay-marriagers attempts to redefine the question, the court nicely puts the real issue at focus with this paragraph:
Plaintiffs do not seek recognition of a new right. To characterize plaintiffs’ objective as “the right to same-sex marriage” would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy —— namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages.
Viewed in light of that question – do gays and lesbians have the right to marry? – Prop 8 is analyzed as an infringement of a fundamental right and thus invokes strict scrutiny for a Due Process analysis. To overcome strict scrutiny, there needs to be a compelling governmental interest. An effort to show such an interest in same-sex marriage cases has always been doomed from the start, for there is none. Particularly telling, in this case, is that the State of California chose not to defend Prop 8. If the Government does not wish to articulate that compelling governmental interest, it can mean only one thing: one does not exist.
The analysis under the Equal Protection Clause is even more damning. The court doesn’t even bother determining whether gay couples are a suspect class deserving of strict scrutiny:
As presently explained in detail, the Equal Protection Clause renders Proposition 8 unconstitutional under any standard of review. Accordingly, the court need not address the question whether laws classifying on the basis of sexual orientation should be subject to a heightened standard of review.
Page 121 onwards.
Look at these attempts to provide a rational basis for Prop 8:
Proponents put forth several rationales for Proposition 8, see Doc #605 at 12-15, which the court now examines in turn: (1) reserving marriage as a union between a man and a woman and excluding any other relationship from marriage; (2) proceeding with caution when implementing social changes; (3) promoting oppositesex parenting over same-sex parenting; (4) protecting the freedom of those who oppose marriage for same-sex couples; (5) treating same-sex couples differently from opposite-sex couples; and (6) any other conceivable interest.
The court debunks each one in detail, but this following paragraph can be applied as an appropriate response to each and every one:
The evidence shows that Proposition 8 does nothing other than eliminate the right of same-sex couples to marry in California. See FF 57, 62. Proposition 8 is not rationally related to an interest in protecting the rights of those opposed to same-sex couples because, as a matter of law, Proposition 8 does not affect the rights of those opposed to homosexuality or to marriage for couples of the same sex.
That’s enough quoting. Go read the decision for yourself and have a celebratory drink with me, just as I did two years ago, when gay marriage was legalized here in CT, as we chew on this powerful statement:
That the majority of California voters supported Proposition 8 is irrelevant, as “fundamental rights may not be submitted to [a] vote; they depend on the outcome of no elections.” West Virginia State Board of Education v Barnette, 319 US 624, 638 (1943)
But really, Judge Walker didn’t need to write that long decision. All he needed to do was print this and sign it:
Stop! In the name of the law!
Aug 3rd
I am J. Clarence Gideon. That’s Special Agent Gideon to you. Because you’re so stupid, according to the FBI, that you can’t tell that what I’m displaying is a blog post and not a damn FBI badge. It’s not like psychic paper, you know. All your base are belong to us.
Not fooled? Confused? See here for the story and then go to your blog and show some solidarity.
Legal fictions: a one-way street
Aug 2nd
The deck is stacked, the house always wins, etc., etc., etc. Phrases routinely used to indicate that the playing field is not level and is biased for one side against the other. I’ll give you another: consciousness of guilt. A legal fiction of the worst kind, to be sure. Consciousness of guilt is a neat little tactic employed by prosecutors and condoned by courts that seeks to cast every action taken by a defendant post-offense in a light most indicative of guilt.
Did the defendant realize that the justice system is a mess and he was going to get convicted no matter how innocent he was, so he took off? Consciousness of guilt. Did he lie to officers because he mistrusts them? Consciousness of guilt? Did he decline to make a decision about whether to submit to breathalyzer until his spoke to his lawyer? Consciousness of guilt.
As you’re well aware by now, there is no presumption of innocence, just a presumption of guilt. And how does the court system solidify that presumption? By pairing it with the “guilty conscience”.
Juries routinely get instructed on “consciousness of guilt”. They are told to *wink wink* draw whatever inferences they may from the defendant’s post-offense or post-arrest conduct. But what if the tables are turned? What if there is some post-offense or post-arrest conduct that shows a defendant is not acting like a guilty person (whatever that may mean)? Of course not. Don’t be silly, this is the justice system we’re talking about. There is no such thing as “consciousness of innocence”, because innocent people don’t get arrested.
So if a defendant wants the jury to draw a favorable inference from the fact that he offered to take a polygraph, but the police refused to administer it, he’s out of luck. Or if the defendants wants to tell the jury to consider the fact that he voluntarily turned himself in (which, per the English language, is the opposite of fleeing), he can’t. If he wants the jury to draw whatever inferences they may from the fact that he asked to be submitted to a breathalyzer, he can’t, because dammit these are the rules we made and that’s that.
So Mr. Seekins’ jury gets to draw an inference from the fact that he said he wouldn’t decide whether to take a breathalyzer until he spoke to his attorney (note that he didn’t actually refuse the breathalyzer), but they can’t draw any inference from the fact that he then subsequently asked the police to administer that breathalyzer and they refused:
One man’s regret is another man’s disparity
Aug 2nd
Statistics at most may show only a likelihood that a particular factor entered into some decisions. There is, of course, some risk of racial prejudice influencing a jury’s decision in a criminal case. There are similar risks that other kinds of prejudice will influence other criminal trials. See infra, at 315-318. The question is at what point that risk becomes constitutionally unacceptable,” Turner v. Murray, 476 U. S. 28, 36, n. 8 (1986). McCleskey asks us to accept the likelihood allegedly shown by the Baldus study as the constitutional measure of an unacceptable risk of racial prejudice influencing capital sentencing decisions. This we decline to do.
Justice Powell, writing for the majority in McCleskey v. Kemp.
["I have come to think that capital punishment should be abolished."] Asked whether he would change his vote in any of the cases that had come before him, the Justice replied: “Yes, McCleskey v. Kemp.” Indeed, he added that he now found capital punishment itself unworkable and would vote against it in any case.
Justice Powell, to his biographer John C. Jeffries, from this contemporaneous account. McCleskey, courtesy of that opinion by Justice Powell, was the (pardon the pun) death knell for Constitutional challenges to the death penalty itself. Sure, in Federal courts we now challenge the method of the imposition of the death penalty, but any direct challenge to its Constitutionality is foreclosed by a cursory cite to McCleskey. McCleskey was a classic ivory tower opinion: it eschewed the actual effect of a law on the individuals of the country in favor of a more elusive “discriminatory purpose” test. A test that is simply impossible to meet. So while the evidence continues to pile up that there is a severe disparity in the application of the death penalty, the conscience of the country is placated by the hollow mantra that while that may be true, it doesn’t matter, because no State would ever intend to discriminate against minorities. The effect is an unfortunate side-effect.
Gun-waving cop has right to privacy
Aug 2nd
is that a gun in your hand or are you just happy to see me?
This incident occurred back in April, but is back in the news with an ACLU press release. The ACLU is representing Anthony Graber…well, you know what? Just watch:
That’s Graber, on the motorbike, and that’s Joseph David Uhler, gun-waving, taking-too-long-to-identify-himself, plain-clothed, unmarked-car-driving, off-duty, state police officer.
Graber got a ticket for speeding, which he gladly accepted, but was then subject to some Apple Gestapo tactics, with police getting a warrant to search his home and seize his computers.
He’s charged with illegally recording the conversation he had with the officer in public and thus violating the officer’s right to have a private conversation while waving a gun at a suspect and yelling at him on the offramp of an exit off the major interstate in the country, which is nonsense code for cops are above the law. Plus the fact that there’s a damn video camera stuck to the guy’s helmet.
Popehat (and the multitude of comments) covered this back in April, with an in-depth analysis. I won’t repeat it here, but I’ll give you this extract:
Allegedly, Graber is being charged with “interception of an oral communication” under Maryland’s “wiretap” law, Md. Cts. & Jud. Proc. §10-402. The law makes it a felony to “intercept” with an “electronic device,” in this case the microphone attached to Graber’s prominent helmet camera, an oral communication in private conversation.
But that isn’t what Graber’s really being prosecuted for. He’s being prosecuted for contempt of cop. For embarrassing a cop. A cop, and a department, that richly deserve the embarrassment they’ve gotten, and the embarrassment they’re going to receive.
Because the charge against Graber is utterly unfounded. The definition of “oral communication” under Maryland’s wiretap law requires that the conversation be “private,” which is to say that it must be one in which the party being recorded has a reasonable expectation of privacy. Fearnow v. C & P Telephone Co., 104 Md. App. 1, 33, 655 A.2d 1 (1995), aff’d, 342 Md. 363, 676 A.2d 65 (1996). According to the Maryland Attorney General’s office, it is not a crime to record a very public conversation, such as a political party meeting, even in secret.
It seems that Graber is not alone in this. Here‘s another recent arrest for the same charge, also in Maryland. Of course, law enforcement types are always good for some lulz:
Remarkably, the state Attorney General has already opined that when police record in public, that is not a private conversation subject to the same laws. In other words, in any public interaction between a police officer and a member of the public in Maryland, it is private for one of them but not the other.
I know most law enforcement agencies are opposed to videotaping interrogations, but this is a little ridiculous.
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