Category Archives: cops

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 This really just obviates the need for recording, because if the video can be superseded by an obviously biased officer’s “recollection” of the incident, then they can claim that their recollection is that you were driving with your windows down,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.

In disregarding FOIA laws, CT lege has assistance from police departments

For a State that bills itself the Constitution state, Connecticut sure is running into a lot of problems with the First Amendment and Freedom of Information Laws, which seek to make government transparent.

First, the legislature, in a midnight session behind closed doors severely restricted FOI access in the wake of the Sandy Hook shooting. Then there were the disingenuous arguments by the state’s attorney to keep 911 calls private, and finally a new task force that’s further scaling back the FOIA public access provisions.

But yesterday, a tremendous investigative reporting project by the New Haven Register and associated newspapers concluded that most police departments in Connecticut are doing a terrible job of complying with FOIA laws by failing to release information to the public:

Under state Freedom of Information law, the record of arrest is public information. This means the name and address of the person arrested, the date, time and place of the arrest and the offense, and at least one of the following designated by the law enforcement agency: the arrest report, the incident report, news release or other similar report of an arrest.

The law also calls police records public records, with some exemptions: the identity of informants, signed statements of witnesses, information which would be prejudicial to a law enforcement action, investigatory techniques not known to the general public, juvenile arrest records, the identity of a sexual assault victim and uncorroborated allegations.

So, of all of these, what were they able to get?

State police troops typically got a B– range by providing arrest logs, but refusing to give detailed reports out. Troop G, however, didn’t even give an arrest log during a compliance check, so it was the only state police troop to get an F.  “That’s impossible,” state police spokesman Lt. J. Paul Vance said, when told our reporter got no information at Troop G. “Arrest logs and press releases are available to anyone in the lobby.”

Twenty-six departments got an A– rating, for both providing an arrest log and an in-depth report, though these sometimes asked for our identity, or don’t provide information online.  Overall, about 25 percent of police departments got a score in the A range.

Another 61 departments or troops, or about 59 percent of them, got a rating in the B range. These departments typically gave an arrest log, but weren’t forthcoming with in-depth reports.

Seven departments scored in the C range, such as Bristol, where they claimed FOI law prohibits them from releasing police reports on arrests until a case is adjudicated in court.  We gave out two D grades and six F grades.

Therefore, 15 percent of departments or troops scored a C+ or under.

Why, exactly, is this important, you ask? Because this is watching those that purport to protect us and have the power to change our lives drastically. Everything that police departments do should be open to public scrutiny so we can determine whether they are, indeed, serving the public or engaged in racially discriminatory tactics.

Mama said knock you out

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What can be more frightening to the innocent man walking down a city street, minding his own business, when a bunch of thugs comes out of nowhere, and for no apparent reason, violently strikes that innocent man causing him physical injury?

Nothing, which is why there was widespread panic last year about the emergence of a new activity that further signaled the moral decay of America’s urban youth: the knockout game.

A game in which seemingly innocent people were randomly targeted to be punched in the head for no other reason than apparent boredom on the part of the hooligans.

And so it comes as no surprise that this viral act of violence that has put fear into the minds and hearts of innocent city working folk and has caused our urban areas to become veritable fields of random assaults has brought about a strict new legislative fix: by God we’ll fix ‘em.

The new bill, proposed by legislator and Police Officer Joe Verrengia of West Hartford, CT, would make a “knockout” punch a felony punishable by up to 5 years in jail1. The bill states (and I’ve reproduced the entire section because context is relevant):

(a) A person is guilty of assault in the second degree when:

(1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person; or

(2) with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument other than by means of the discharge of a firearm; or

(3) he recklessly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument; or

(4) for a purpose other than lawful medical or therapeutic treatment, he intentionally causes stupor, unconsciousness or other physical impairment or injury to another person by administering to such person, without his consent, a drug, substance or preparation capable of producing the same; or

(5) he is a parolee from a correctional institution and with intent to cause physical injury to an employee or member of the Board of Pardons and Paroles, he causes physical injury to such employee or member; or

(6) with intent to cause the loss of consciousness of another person, he causes such injury to such person by a single punch or kick or other singular striking motion.

As you can see from the entire statute reproduced above, (6) is redundant. We must, of course, concede that “loss of consciousness” is “serious physical injury”. Putting aside caselaw that states that a fist or shoe can indeed be a dangerous instrument (thus covering subsections 2 and/or 3), subsection (6) seeks to carve out a specific subset of subsection (1), i.e. causing of serious physical injury. Subsection (1) has no restrictions on the type of injury (loss of consciousness) or the manner in which it is caused (single punch or kick).

So, simply put, (6) is useless. But that’s not all. The bill would make a conviction of subsection (6) have a mandatory prison sentence of at least 2 years.

Fernandez v. California: remove the objector, won’t be no objection

What problem is?

What problem is?

I know that a majority of my readers are lawyers, but there are a fair number of you who aren’t and so from time to time I like to reproduce stirring pieces of legal opinions that explain so eloquently the protections that we have and the reasons we have them. The opening of Justice Ginsburg’s dissent yesterday in Fernandez v. California [PDF - pg 23 onwards] provides such an opportunity, so I reproduce a large quote from it:

The Fourth Amendment guarantees to the people “[t]he right … to be secure in their . . . houses . . . against unreasonable searches and seizures.” Warrants to search premises, the Amendment further instructs, shall issue only when authorized by a neutral magistrate upon a showing of “probable cause” to believe criminal activity has occurred or is afoot. This Court has read these complementary provisions to convey that, “whenever practicable, [the police must] obtain advance judicial approval of searches and seizures through the warrant procedure.” Terry v. Ohio, 392 U. S. 1, 20 (1968). The warrant requirement, Justice Jackson observed, ranks among the “fundamental distinctions between our form of government, where officers are under the law, and the police state where they are the law.” Johnson v. United States, 333 U. S. 10, 17 (1948)1. The Court has accordingly declared warrantless searches, in the main, “per se unreasonable.” Mincey v. Arizona, 437 U. S. 385, 390 (1978).

In its zeal to diminish Randolph, today’s decision overlooks the warrant requirement’s venerable role as the “bulwark of Fourth Amendment protection.” Franks v. Delaware, 438 U. S. 154, 164 (1978). Reducing Randolph to a “narrow exception,” the Court declares the main rule to be that “consent by one resident of jointly occupied  premises is generally sufficient to justify a warrantless  search.” Ante, at 7. That declaration has it backwards, for consent searches themselves are a “‘jealously and carefully drawn’ exception” to “the Fourth Amendment rule  ordinarily prohibiting the warrantless entry of a person’s  house as unreasonable per se.” Randolph, 547 U. S., at 109 (quoting Jones v. United States, 357 U. S. 493, 499 (1958)). See also Jardines, 569 U. S., at ___ (slip op., at 4)  (“[W]hen it comes to the Fourth Amendment, the home is  first among equals. At the Amendment’s ‘very core’ stands   ‘the right of a man to retreat into his own home and there  be free from unreasonable governmental intrusion.’”); Payton v. New York, 445 U. S. 573, 585 (1980)(“[T]he physical entry of the home is the chief evil against which  . . . the Fourth Amendment is directed.”

That should explain to you that in our country, under our system of laws, there is nothing more sacred than the right to be left alone in one’s home and that there is an almost absolute prohibition on the police entering your home without a warrant. One of the exceptions to that rule is if you consent. If you give the police permission to enter, then they don’t need a warrant.

Friendly reminder to law enforcement: stop listening to attorney-client conversations

It is, of course, an undeniable fundamental right that communications between a criminal defendant and his or her attorney should be utterly confidential1 and that, under no circumstances, should the prosecution get access to the content of those conversations.

Having said that, what is to be done if a prosecutor gets hold of confidential communications or learns of the substance of these conversations? Must there be an automatic reversal? Or this “fundamental right” to be rendered meaningless yet again, subjected to the legal fiction of harmlessness.

That is the question confronted by the Supreme Court of Washington in State v. Fuentes. In Fuentes, after the defendant was convicted by a jury, but during the pendency of post-trial motions, the prosecutor asked the investigating detective to listen to the defendant’s phone calls from jail to determine if there was any witness tampering going on2:

Virginia prosecutors will do just about anything to execute Justin Wolfe (updated)

While everyone is enjoying that ridiculous lawyer ad, Justin Wolfe spent 10 years on death row, convicted of a murder-for-hire and sentenced to death. After the state courts upheld his conviction and dismissed his claims, he filed a petition for writ of habeas corpus in federal court. A federal judge reversed his conviction and found that he was actually innocent of the crime [PDF]1:

The prosecution’s case rested on the testimony of a single key witness, Owen Barber, who   admitted that he shot and killed the victim but told the jury that he had done so at petitioner’s behest. It was later discovered that prosecutors intentionally withheld exculpatory evidence that could have been used to impeach that testimony and prove   petitioner’s innocence.

In federal habeas proceedings, Barber fully recanted his trial testimony and the district court found that petitioner is actually innocent under Schlup v. Delo, 513 U.S. 298 (1995). It based that determination on an affidavit Barber had executed, swearing that petitioner had nothing to do with the murder; corroborating declarations from other witnesses to whom Barber had admitted his perjury at various times; and other significant evidence.

The intentionally withheld evidence was a police report about a meeting with Barber,

which show[ed] that before Barber said anything to the police about the crime,   Commonwealth officials threatened Barber with the death penalty if he did not testify that petitioner had hired him to commit the murder. Pet. App. 147a. The district court then held an evidentiary hearing at which Barber made clear that he testified falsely at trial because of the prosecutors’ threats. He also testified that petitioner had no involvement in the murder.

The biggest problem with Brady, as has been repeatedly stated, is the lack of any enforcement mechanism. Prosecutors are left to their own good will to determine what, if anything, is “exculpatory” and constitutionally required to be turned over.

But the wretched scum who prosecuted Wolfe are quite another breed:

Expert bullshit

From an unpublished Mass opinion1, consider the following description of the testimony of the state’s “expert” witness – a police officer and decide whether it was admissible or not:

First, referring to the cocaine and its packaging, the prosecutor asked [Detective Paul] Quinn whether he could offer an opinion as to whether ‘someone possessed these with an intent to distribute, or if they had it for personal use?’ In response, Quinn stated, ‘My opinion based on this in front of me and nothing more would be it would be with the intent to distribute it.’

[Second,] Quinn testified, ‘You know, if I stopped a guy who had nine bags, and he pulled out a burnt pipe and said, Officer, I just got paid, I’m going to get high, and he had those physical characteristics along with the pipe, I might give that guy the benefit of the doubt . . .

[Finally] Quinn [testified] regarding the physical characteristics and economic behavior of typical crack cocaine users, suggesting that the heavy-set defendant looked like a seller not a user and that a user would want to get his ‘money’s worth,’ and therefore would buy an ‘eight ball’ not nine twenty-dollar bags.

In this case, the court ruled that all of this testimony was improper and went beyond the scope of his “expertise”2.

But how similar is this testimony to others that you see routinely in drug trials? How many times has testimony like this been admitted, relied upon and upheld? How many times is a cop an “expert” based solely on nothing but his own inflated sense of his own abilities?

If you are a juror in a trial and a cop testifies as an “expert”, feel free to ignore that testimony and substitute your own common sense instead. Because usually they testify about bullshit like this.