Author Archives: Gideon

Seeing is disbelieving: in spite of video edition

cafe-wall-line-illusion

This is not a trick question: what do you think has superior recall of the facts – your memory or a video of the incident?

No prizes for guessing correctly. But despite that, 5 judges in the State of Indiana went with their imaginations discretion in ruling [PDF] that a car had actually swerved into oncoming traffic despite the fact that it had not, and thus a police officer was justified in pulling the driver over for the horrifying crime of having a BAC level of 0.09.

Around 1:00 a.m. on October 15, 2011, Deputy Casey Claeys of the Elkhart County   Sheriff’s Department was following another vehicle down County Road 4. Deputy Claeys later   testified he saw the vehicle “drive off the right side, which was the south side of the road, twice.”

Okay, so that’s what the cop says. What does the video say?

[T]he trial court stated it “reviewed the video on approximately ten occasions and cannot conclude from the video that the defendant’s vehicle actually left the roadway . . . but it does show the vehicle veering on two occasions onto the white fog line.”

Are you laughing or crying? I can’t tell. I’m doing both. So the video doesn’t support the proposition that the car left the roadway. Remember the officer said that it had veered off the road. Veered. Off. The. Road. Meanwhile the video shows that maybe it touched the white line.

So how do you reconcile that? Magic and the power of being a judge:

The trial court noted, however, that it was “quite possible that the officer’s actual visual observation of the defendant’s vehicle was superior to the video camera in his car.”

Got it? The officer’s memory is that much better than a video recording of the event.

This is important because if the car hadn’t actually left the roadway or god forbid, veered across a line for a second, the officer wouldn’t have any reasonable suspicion to make a traffic stop, which led to the arrest.

They need some reason – a traffic violation, say – to pull you over. Then when they notice you making ‘furtive movements’ and describe your eyes as ‘glassy’, they can arrest you for being drunk.

But this? This really just obviates the need for recording, because if the video can be superseded by an obviously biased officer’s “recollection” of the incident, then they can claim that their recollection is that you were driving with your windows down, AK-47s blasting into the air while screaming “fuck tha police” and taking exaggerated swigs of Crystal while simultaneously pissing on a photo of George Washington and wiping your ass with the American flag.

That scenario is just about as absurd as what the judges ruled in this case.

But no, you keep believing in the system.

Update: Scott wrote about this earlier in the week.

Wednesday is link dump day

i-work-for-the-government

So much to read, so little time to write. So you get links that I didn’t have time to turn into posts.

Potential juror thinks defendant is guilty before trial; gets to sit on jury and find him guilty (Updated)

fuck-you2

Here is another in the long line of legal fictions: that you get an impartial jury of your peers. Let’s leave aside the peer part for now, because there’s already been much study on the lack of any real peers in juries selected these days and focus on the “impartial” part.

Impartial, in this context, is supposed to mean someone who doesn’t come to the trial with any predispositions. Someone who is able to be fair, listen to the evidence, and conscientiously apply the law to the  facts, regardless of whether one emotionally agrees with the result compelled by those facts.

In reality, we aren’t stone robots. Everyone comes in with preconceived notions. In these days of increasing polarity, we have ever stronger opinions about crime and criminal justice and especially those icky child molesters.

So we come to our legal fiction: rehabilitation. That’s when the judge asks an obviously biased venireperson enough questions that they eventually get the hint, no matter how stupid they are, and end up saying the magic words “I think I can be fair in this case”. Doesn’t really matter what they’ve said prior to that point, once we get to that incantation, the juror is deemed impartial and fit to serve on the jury.

You’d be a fool, however, to think that the juror has actually changed his or her views. Just ask Jose Felipe Velasco:

Jose Felipe Velasco insists Orange County Judge David A. Hoffer cheated him out of a fair trial by placing a juror on the supposedly neutral citizen’s panel after she repeatedly declared the defendant guilty before hearing any evidence.

But you knew that anyway from the title of this post. So how bad could it have really been? Very bad.

A hierarchy of offenders

Clearly, in Connecticut, it is worse to be a prostitute than it is to be a robber and assaulter. Because there really is no other way to explain this story:

A local woman faces prostitution charges after police said she reported being robbed by a man who responded to her ad offering sex for money.

Get that? A woman, who was freely choosing to engage in a contract for sexual services, is such a danger to society that she must be arrested and prosecuted, while the guy who got angry with her and assaulted her and stole his cell phone, well, who cares about that, right?

What’s more offensive is that she wasn’t arrested on the scene. Some officer took the time to go back to his or her desk, write up a warrant, go to a judge, get it signed and then go track her down again and then arrest her.

I’m sure this will fix her. Meanwhile, Mr. John is free to rob and assault as many other ‘prostitutes’ as he likes, because…well, you know the drill.

H/T: Maggie McNeil.

Revenge porn bill makes it to senate: better but still unconstitutional

The Connecticut judiciary committee has voted by a margin of 39-11 to send that awful ‘revenge porn’ bill that I warned you about to the full senate. Except they’ve made a change or two to the bill that makes it better than before but still, in my opinion, quite damn unconstitutional.

Monday Morning Jumpstart

Whaddya know: three in a row. In some places, they call this a streak. Here, we call it pushing the limits. But, I can’t force you to complain, so enjoy while it lasts before I go back to sleeping late on Monday mornings.

Some more thoughts on the du Pont heir and the courage of our convictions

William Roper: So, now you give the Devil the benefit of law!

Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?

William Roper: Yes, I’d cut down every law in England to do that!

Sir Thomas More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!

As the Robert H. Richards “du Pont” heir story has gained steam across the internet, there have generally been two sorts of reactions (and this includes reactions to my post from yesterday):

  1. How can you defend these people?1
  2. Money lets an obviously guilty man walk away free after he admitted to committing this horrible crime.

Since my post yesterday was apparently unclear and there has been a great deal of discussion surrounding this subject (some civil but mostly not), I thought I’d take a second attempt at clarifying the rationale of my post and some of the misconceptions and fundamental problems with the Internet’s objection to the outcome in this case. A fool’s errand, no doubt, but I have nothing else to do.

As a representative example, take Emily Bazelon at Slate. A professor at Yale, Ms. Bazelon and I are usually on the same side of things and in agreement on almost all points. Which is why I was disappointed to see her deviate from sensibility and let her emotions overcome her in her condemnation of Richards and the judge. For instance:

Richards, who had no previous record, also has the benefit of money and family connections. He pleaded guilty to one count of fourth-degree rape after his daughter told her grandmother, at the age of 5, that she didn’t want “my daddy touching me anymore.” (Richards was convicted in 2009—the details of the case are only coming out now because of a lawsuit his ex-wife recently filed against him.) In Delaware, fourth-degree rape is characterized as a violent felony, and the sentencing range goes up to 15 years in prison. But Jurden seems to have decided to treat Richards primarily as a patient, noting that he had “significant treatment needs which must be met.”

Like I said, that’s one goal. And I should mention that the judge’s ruling was in line with the guidelines for this crime issued by a Delaware sentencing commission, which (despite the 15-year range on the books) call for a prison term of zero to 2½ years. The problem is that when a father (or anyone) abuses a small child, the zero end of the guidelines are a travesty. In general, I’m in favor of sentencing guidelines, like Delaware’s, which aim to nudge judges toward greater leniency overall. That’s because over time, punishment tends to ratchet only in one direction: up. Sentencing reform for truly nonviolent crimes, especially drug and gun possession, is very much in the interest of justice. But to let off a convicted child rapist, who just happens to be living off his trust fund in a mansion, thanks to his wealthy and famous family? That seems like the definition of injustice.

If you read her remarks – and they’re only two paragraphs you lazy bastards – you’ll note that she, in essence, agrees with me but cannot bring herself to side with the judge because child molester. Hers, unfortunately, is the most nuanced and honest take out there, so you can only imagine what the others are saying.

So in order to deconstruct, let’s start with some facts. First, the specific facts of this case and then some truisms about the criminal justice system.

The specific facts of this case

It is important to remind ourselves that this occurred in 2009 and has only come to light now because Richards’ ex-wife has sued him.

In 2009 Richards was charged with rape in the second degree prior to trial. On the eve of trial, the prosecutor offered a plea deal and dropped the charges to rape in the fourth degree, which apparently carries a sentencing range of zero to 2 1/2 years. Richards accepted, admitted his guilt as part of the plea and was sentenced to 8 years’ probation.

In doing so, the judge noted that Richards had significant mental health needs which were better met at a long-term sex offender treatment facility, where he would be admitted.

So: an eve of trial change of charges by the prosecutor in this case who knows more about it than you, and a judge citing significant mental health issues based on information you don’t have.

Generally agreed to information about sex assault cases of minors and the sentencing of individuals in the criminal justice system

Child molesters are pretty much the worst. They’re the only category of defendants that some criminal defense lawyers will refuse to defend. The cases are awful to work on because they involve little children mostly and unsympathetic defendants.

Prosecutors are zealous and harsh, victim advocates are annoying as fuck, judges are strict and severe because, well, who the hell wants this kind of backlash, right? Legislators have mandated absurd penalties and many of them are mandatory and automatic. In other words, in the vast majority of cases, sex offenders are spending a very, very long time in jail.

A lot of these cases resolve short of trial for a variety of reasons, the primary being that families don’t want their little children to take the stand and testify and relive the horror. They want to spare the kids that trauma. Another reason is that defendants want to take the shorter sentence, which would be offered up front in exchange for not putting the kids through the trauma.

Yet another reason, of course, is that an allegation doesn’t equate to guilt. And as prosecutors and defense attorneys start to prepare in earnest for trial, they sometimes uncover information that makes a plea offer pertinent. Maybe the witness had falsely accused someone of something similar in past, or had a reputation for lying, or they learned something about the defendant that made him extremely sympathetic or the medical records don’t match the story and then a balancing starts: what number is worth the risk of a conviction or acquittal. It happens often enough that cases resolve on the eve of trial, or during jury selection, or after evidence.

Each case is different. And that’s another important issue here that must be understood: each case is different. The criminal justice system cannot be set up as one-size-fits-all and this applies to sentencing too. The individual sentence meted out in each case must depend on the harm alleged and the individual circumstances of the person to be punished. That is universally accepted by all. Otherwise there would be no need for minimum and maximum sentences. There would only be one sentence for each crime that would be imposed regardless of any mitigating or aggravating factors.

The next thing is probation. Sex offender probation is the worst. It’s usually considered a remarkable feat if an offender makes it through these generally very-lengthy probations without ever being re-arrested for a technical violation. When you understand how onerous these probations are, only then will you realize how amazing that is.

Finally, a lot of people accused of committing crimes like these have mental health issues. And I don’t mean ADHD. They have either been molested themselves or have severe personality disorders and have never gotten treatment or are borderline mentally retarded, if not below the threshold. That’s not to say that all of them have mental health issues, but a fair number most certainly do.

Now that we’ve covered all of that – if you’re still reading – let’s move on to the problems I have with the reaction to this case. It’ll be like a follow your own adventure.

Does everyone – regardless of circumstance – convicted of such a crime deserve to go to jail?

That is the fundamental, threshold question. If your answer to this is yes, then the rest of the conversation is unnecessary. We will never agree. But just to poke a bit further, is the answer the same if you learn that the defendant is retarded with an IQ of 50? What if you learn that the defendant is paranoid schizophrenic? What if you learn that the defendant is 15 years old and the victim is 5? What if you learn that the defendant was severely raped as a child by his parents for the first 12 years of his life and hasn’t adjusted to society and doesn’t know how to interact with others?

If you’ve answered yes to any of those questions, then it was as I suspected all along. Your outrage isn’t that a child molester got to go home, it’s that this child molester did.

Assuming that treatment may be necessary in the right case, instead of jail, why isn’t Richards deserving of that?

Assuming, as we must, that in some situations some defendants may deserve not to go to jail, but instead to go to a hospital or some treatment, the question then becomes why is this guy going up your ass a mile?

Remember what we know about this case: the charges were substituted to lesser charges by an apparently seasoned prosecutor who knows the facts of the case to a charge that carries a sentence of 0 to 2.5 years. The judge cited ‘significant mental health needs’ which would have been presented to her in a sealed confidential report that only both sides have access to. Based on that information, the judge determined that probation was appropriate. Other prosecutors interviewed in the news article didn’t seem outraged or shocked. This tells us this wasn’t out of the ordinary. It’s also worth nothing that this was 5 years ago and that he hasn’t been re-arrested for violating any conditions of his probation or for committing any new offenses.

On the other hand, we – you and I – don’t know squat.

So while I understand the temptation to yell “CHILD MOLESTER”, we have already moved past that stage and are at a more evolved stage of this discussion.

Now let’s take money out of the equation for a second. Imagine a poor guy named Richard Thompson who also was accused of this crime, but at the last second the prosecutor offered him a sentence with a range of 0 to 2.5 years. A different judge orders a psychiatric evaluation and determines that he has ‘significant mental health needs’. The judge says “Mr. Thompson I have two choices: either I send you to jail where you will not get any treatment that you so desperately need or I can send you to a treatment facility where you will get treatment and that will increase the likelihood that you will not commit another crime like this again. Unfortunately, there is no facility in this state that fits the latter need. There is one out of state, but you have to pay for it yourself.”

Mr. Thompson cannot. Are you upset at this scenario? Are you upset just like Mr. Tarloff in NY who, by most accounts, deserved to go to a mental hospital instead of jail?

If you say “well he deserves to go to treatment, but if there’s no treatment he should go to jail”, then you haven’t made any progress at all. It isn’t an “either-or” situation. What is more appropriate? Having determined that the latter is more appropriate it is not right to send the man to jail because there are no alternatives.

Sadly this is reality and there are thousands of people in that situation.

Now, Mr. Richards happens to be able to answer this judge’s question in the affirmative. “Yes judge I can afford the treatment myself.” The judge says “great, because that’s what I think you need”. Off he goes2.

Assuming that both deserve treatment and one gets it because he can afford it and one doesn’t because he can’t, who’s the villain? Is it the rich guy? Or is it the system that doesn’t provide necessary services for the poor? Everyone who needs the same immediate treatment that Richards did should have access to it and judges shouldn’t have to choose between that or jail.

If you read into this that Richards got offered a sentence with 0 years as a possibility because he’s rich and the judge sentenced him to that 0 years because his money influenced her decision, then that’s a bias that you have that’s unsupported by anything that’s been reported.

The system fails thousands of people all over the country every day. They’re a mix of rapists and child molesters and drug addicts and gang bangers and murderers and drunk drivers.

That one of them had the fortune to provide for himself the services that the system should, but could not, is not an indictment of him, it’s an indictment of the system.

And even if you hate him and the money he represents and think he should’ve gone to jail, isn’t the idea that the only place he got treatment was outside of a penal institution make you take notice? Aren’t those thousands of mentally ill people populating our prisons worthy of your outrage?

So who’s the privileged one? Him? Or you, with your luxury to absent your convictions when standing by them would leave a bad taste in your mouth.

This moral convenience is why it isn’t hard to understand the failure of the nomination of Debo Adegbile.