The Constitution requires that criminal defendants be provided with a fair trial, not merely a “good faith” try at a fair trial. Respondent here, by what may have been nothing more than police ineptitude, was denied the opportunity to present a full defense. That ineptitude, however, deprived respondent of his guaranteed right to due process of law.

Those, of course, are the (somewhat) famous opening lines to Justice Blackmun‘s dissent in Arizona v. Youngblood, which held that in order to affect due process of law, law enforcement’s actions in destroying potentially exculpatory evidence must be caused by some “bad faith”. The Court, of course, never explains “bad faith”, which results in a race to the bottom to designate all police misconduct as “incompetence” and “inadvertence”, thereby circumventing the Fourteenth Amendment.

Consider, for your entertainment, the very recent case of Martin v. The State of (Where Else?) Texas. In Martin, the defendant was pulled over by Deputy Fife Jennings for failing to signal a left turn. Upon approaching the vehicle, the Deputy smelled “marihuana” and then observed a furtive gesture which led to a patdown, which led to the Deputy feel something like a razor blade (wait for it) which led to the discovery of marihuana methamphetamine (don’t even ask). Martin, within two weeks of his arrest, sent a subpoena to the police department, asking them preserve the video of the dashboard camera. A year later, at the suppression hearing, there obviously was no video, or I wouldn’t be writing this post. Here’s a summary of the police procedure and operation of the dashcam:

The dashcam is automatically activated when an officer turns on his emergency lights. Department policy states that all video must automatically be saved for thirty days. Jennings could not say whether his machine was operating that night, but he would have noted either at the beginning or end of the shift if the device had not been functional. Jennings stated that the only way to know for sure if the video had been taken would have been if he had preserved the video.

And why did no one know if there was video and why did Jennings not preserve it to find out if the incident had been videotaped? I’ll let him tell you:

Q: And why was it not preserved?
A: Since I didn’t put it in my report it wasn’t preserved because I didn’t believe it had any type of evidential value.
…
Q: But, apparently, your opinion is . . . that if you feel that it doesn’t have evidentiary value, you don’t have to turn it in or you don’t have to preserve it, or whatever, correct?
A: Yes, sir, that was my understanding at the time.
Q: So it’s very possible that . . . you just decided in your mind that it didn’t have any evidential value, that . . . you didn’t preserve the video?
A: Yes, sir.
Q: And the only way to know if there was a video that properly recorded the events of that evening would be if you had preserved that video, correct?
A: Yes, sir.

Is your head spinning? It should be. He didn’t know what was on the video, yet determined that there was no evidentiary value, so he destroyed the tape and thus the only method of determining if it did, indeed, have evidentiary value. All in violation of department policy.

As for that subpoena? Well, Jennings says he never received it, even though it was served at his department and by golly we damn well take his word for it:

The district court could have reasonably inferred from this testimony that there is a department policy giving officers discretion to determine whether the tapes have evidentiary value and that Jennings did not violate that procedure by determining that the videotape in this case did not.

Finally, Martin argues that bad faith can be inferred from the failure of the department to comply with either the subpoenas that were issued or the letter that Martin wrote requesting preservation of the evidence. Regarding the letter, the district court would not have abused its discretion in crediting Jennings’s testimony that he had not seen it prior to the suppression hearing[...]

Well, I’m glad that we have so much faith in an incompetent, bungling, apparently clairvoyant police department. Because, really, it would be too much to ask of Deputy Fife to just possibly walk the videotape over to the evidence room. Poor guy has his hands full deciding whether something smells like pot or feels like a razor blade when it’s in fact meth. We shouldn’t tax him much more.

Now, of course, that was in Texas and not in Connecticut, which roundly rejected Youngblood‘s “bad faith” rule in State v. Morales. In Connecticut, you can get a jury instruction telling the jury to draw an adverse inference from the police’s failure to preserve potentially useful evidence:

Fairness dictates that when a person’s liberty is at stake, the sole fact of whether the police or another state official acted in good or bad faith in failing to preserve evidence cannot be determinative of whether the criminal defendant has received due process of law. Rather, our constitution imposes certain obligations on the state to ensure that the criminal trial is “a search for truth, not an adversary game.” United States v. Perry, 471 F.2d 1057, 1063 (D.C. Cir. 1972); State v. Wright, 87 Wash. 2d 783, 786, 557 P.2d 1 (1976).

That’s authored by Justice Berdon, with whom I want to have babies.

H/T: Radley “A link is worth a thousand pageviews” Balko.

Here’s an alternate image to the one above:

insert uncomfortable laugh track

It turns out that this is now a growing trend of sorts and is about to receive its first serious legal challenge in the Empire State:

Rosie, the first judicially approved courtroom dog in New York, was in the witness box here nuzzling a 15-year-old girl who was testifying that her father had raped and impregnated her. Rosie sat by the teenager’s feet. At particularly bad moments, she leaned in.

…

The new role for dogs as testimony enablers can, however, raise thorny legal questions. Defense lawyers argue that the dogs may unfairly sway jurors with their cuteness and the natural empathy they attract, whether a witness is telling the truth or not, and some prosecutors insist that the courtroom dogs can be a crucial comfort to those enduring the ordeal of testifying, especially children.

The new witness-stand role for dogs in several states began in 2003, when the prosecution won permission for a dog named Jeeter with a beige button nose to help in a sexual assault case in Seattle. “Sometimes the dog means the difference between a conviction and an acquittal,” said Ellen O’Neill-Stephens, a prosecutor there who has become a campaigner for the dog-in-court cause.

There are Confrontation Clause implications, to be sure: the dog’s “nudging” the reluctant witness at key moments seems to give the witnesses testimony an added air of credibility and evoke lord knows how much sympathy in the jury for the complainant:

His lawyers, David S. Martin and Steven W. Levine of the public defender’s office, have raised a series of objections that they say seems likely to land the case in New York’s highest court. They argue that as a therapy dog, Rosie responds to people under stress by comforting them, whether the stress comes from confronting a guilty defendant or lying under oath.

But they say jurors are likely to conclude that the dog is helping victims expose the truth. “Every time she stroked the dog,” Mr. Martin said in an interview, “it sent an unconscious message to the jury that she was under stress because she was telling the truth.”

“There was no way for me to cross-examine the dog,” Mr. Martin added.

Ah, but if Mr. Martin had bothered to check the website for Courthouse Dogs, he’d have found this:

Avoid using the term “therapy dog” because the use of this term may create grounds for a mistrial or raise an issue on appeal. This term originated in the medical and psychiatric fields and connotes that the recipient of the dog’s attention is in need of physical or psychiatric therapy. A defense attorney could argue that the use of the term “therapy dog” by the judge or the prosecutor implies to the jury that the witness is in fact a victim in need of therapy and could be construed as a comment on the evidence. It is up to the jury to decide if the witness was victimized by the defendant. You don’t want to retry a case and put the witness/victim through this ordeal a second time.

Martin hits it right on the head, by the way. Anytime the proponent of a new technique strongly (the above paragraph is in bold on their website) advises you to avoid the use of a term so that it can be admitted in court, you can safely bet that the discouraged description fits precisely.

The trial judge, in permitting the use of this therapy dog, draws an analogy to the use of a doll by a child witness by testifying. The analogy rings hollow, to me. A doll is inanimate and moves only when the person holding the doll gives it energy to move. A dog, on the other hand, has its own motives and moves on its own, in all its doggy wisdom. How do we ask the dog why it chose that precise moment to nudge the witness or nuzzle up against it?

Scott, in his post on this, highlights the problems with dog-aided-testimony:

The point of confrontation is to confront, to make the witness uncomfortable, to challenge their finely-honed direct testimony so that the narrative can be tested and, if false or mistaken, shown to be wrong so that an innocent person isn’t convicted.  Of course we feel sorry for the putative victim, though whether the person on the stand is a victim is often at the heart of the question.

But we must feel similarly bad for the person convicted on erroneous testimony.  We should no more want a wrongful conviction than a traumatized child-witness, and when the comfort of a dog alleviates the normal stress of giving testimony, a significant part of the system is compromised.  Witnesses should feel stress. Witness words and demeanor under cross are critical to the determination of truthfulness and accuracy.

…

As  wonderful as it may be to have a dog like Rosie sit at the feet of a young lady who endured the rape and impregnation of a sick and disgusting father, the next child-witness may be accusing her parent of being a witch in Salem.  We cannot presume that the child isn’t wrong, or isn’t lying, and that the real victim in the courtroom isn’t the defendant.

Defendants, on the other hand, are only permitted completely shaved cats.

no self-respecting dog would nuzzle up to him

I can see it in your eyes, you want some lulz. Click the links.

Read this (and this).

Hilarious picture via this list of brilliantly pointless street fliers.

eh heh, eh heh, yup, uh huh

In the end-of-the-year-lists-that-are-poor-substitutes-for-actual-writing spirit, I present to you the first of many Top 10 lists. Today, we learn about things that you really shouldn’t tell your client (it would really help if you pictured this list being introduced by Letterman portrayed by Peter Griffin).

So, without any more fanfare or irrelevant segues, the Top 10 things you really shouldn’t say to your clients, in no particular order:

10. Now, when did you stop beating your wife?

9. We’re going to go with the “your identical twin brother did it” defense.

8. You’re right, I’m not a real lawyer, but for $500 I’ll play one in real life.

7. And if you plead within the next 30 minutes, I’ll throw in an extra set of kitchen knives, free.

6. Listen, you keep saying you didn’t do it, but I really don’t believe you.

5. Remember, it’s always polite to tip your lawyer.

4. Has anyone ever told you you look like Charles Manson?

3. Maybe spending a few decades in jail will do you some good.

2. Bro, I love you and all, but that teardrop tattoo looks ridiculous.

1. Who cares how much evidence they have against you, God is on our side.

The comments are yours.

And frankly, the only reason I wrote this damn post is so I could use that picture. Don’t judge me, you’re no better.

H/T Colin Samuels

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.

A Fairfield man was arrested Thursday morning after buying a high powered rifle to stop an alien invasion, police said.

Fairfield Police Sgt. James Perez said Dane Eisenman, 57, responded to a classified advertisement for a .30-06 rifle about a month ago. While filing out the paper for the rifle, police said, he mentioned to the seller what he would be using the weapon for.

“He said he was going to use the weapon to kill aliens,” Perez said.

Like the seller of the gun, I, too, was unsure upon reading the headline whether Eisenman was referring to little green men from Mars or real humans from another country, trying to illegally enter these United States. The answer is neither:

Sgt. Perez said Eisenman told the seller of the rifle every 36,000 years, aliens who live under the sun come to Earth to kill humans, and he needed to be prepared because “They’re going to be coming soon.”

Ah. The feared race of Suntarans.

What I want to know is, why did the seller sell this guy the gun and then call the cops?

Cats are popular. They’re even more popular on the internet, which was, as we all know, invented just for cats. Every day is Caturday [here's the ED version of Caturday, which means it's totally NSFW. I mean it, really. Not. Safe. For. Work].

Sometimes, though, the internet bleeds into real life (shocking, I know). And such has been the case the past week, with three stories – two local – involving cats and crime.

First, this tragi-comic tale of Gregory Lesco, who killed the family cat after it ate his pet bird (no, I”m not making that up):

Police say Lesco told them he was doing dishes when the bird flew from his cage to join him and the cat, named Pepper, jumped up and grabbed it. He said he hit the cat in the head with a baseball bat and then suffocated it with a rug.

He says he struck the cat to try to get it to drop the bird, and then suffocated it because he couldn’t afford to take it to a vet to treat its injuries.

Mr. Lesco, not to be confused with the equally bizarre Matthew Lesko, is charged with one count of Animal Cruelty, which happens to be a class D felony, punishable by 5 years in jail.

Then yesterday, I saw this post by Rick Horowitz about a Michigan law that makes it a crime for cats to fight. Since there’s no room in cat jails, they stick the owners in human jails instead:

The City of Kalamazoo, Michigan, apparently has some fairly weird laws on the books regarding animals.  For example, it is apparently a misdemeanor — not an infraction, but a misdemeanor with a real criminal record and a real jail sentence as a potential punishment — not that a simple thing like a criminal record could ever impact anyone’s ability to get a job or a professional license — a misdemeanor to own a cat that fights with other cats.  In addition to making it apparently illegal to have a cat that fights with other cats, Kalamazoo also charges owning a dog that barks as a misdemeanor.

I don’t know if that last bit is true, but the charges will be dropped if the cat behaves herself. The cat’s plan is working. Next step: world domination.

And finally, this morning, we get news of a honest-to-goodness cat burglar. No, I mean that literally. A woman who burgles cats (and there’s another awesome cat picture after the jump so don’t you dare not click through):

A Connecticut woman has been arrested on allegations she stole people’s pet cats in several towns and put them up for sale on a website.

Stonington Animal Control Officer Rae Jean Davis wrote in an arrest warrant application that she believes Michelle Courter of Stonington set traps for numerous cats and placed ads for them on petfinder.com.

The woman says that she had no idea how the cats got there, or in the alternative, she was holding them for a friend. Really, I think the cats are behind this too. They’re brainwashing her into selling them, so they can spread far and wide. Perhaps as far as Kalamazoo, MI, because they have to answer the call to war made by their comrade there.

In addition to Animal Cruelty, she’s also been charged with, umm, theft of companion animal. By the way, in these animal statutes, it’s really interesting how dogs are given primacy. “Dogs and other companion animals”. Maybe this is why the cats are revolting.

So there you have it. It’s Official Caturday Week Day. Should any of them go to jail? Get a fine? Have a gaggle of cats meow incessantly outside their bedroom door?

Cat-ch you later!

No, silly cat, everyday is Caturday.

Consider the facts:

On April 1, 2006, Officers Craig Miller, David Rivera and Charles Gargano of the New Haven police department were patrolling the Fair Haven  neighborhood as part of their duties with that city’s drug interdiction unit. The neighborhood was known for frequent drug trafficking activity. The  officers  were in an unmarked patrol car, operated by Rivera. At approximately 5:15 p.m., the officers observed a Chevrolet Impala turn right from Ferry Street onto Grand Street without signaling. The officers followed the Impala around the block, during which time they also observed that the  defendant, who was operating the car, was not wearing a seat belt. Pursuant to police department policy, the officers called dispatch to request a  marked cruiser in order to effectuate a motor vehicle violation stop.

Three marked patrol cars responded to the dispatch call, and stopped the Impala at the corner of Ferry Street and Grand Street. The unmarked  patrol car stopped approximately one half of a car length behind the Impala. While still in their unmarked patrol car, Rivera, Miller and Gargano  observed the defendant make a movement toward his right side, which led them to believe that the defendant might be concealing a weapon. The  three officers then approached the Impala. As they were approaching, Miller observed the defendant close the center console in the front seat.

Rivera removed the defendant from the vehicle, handcuffed him, and frisked him for weapons. While frisking the defendant for weapons, Rivera  discovered $1369 in cash and several cell phones on his person. At the same time, Miller and Gargano, as well as several officers from the other  patrol cars, removed the two passengers from the vehicle, handcuffed them, and frisked them for weapons. Miller then returned to the car and  observed some plastic protruding from the center console. He opened the console and removed plastic bags that he believed to contain crack  cocaine. The officers also determined that the Impala was owned by a rental car company. Subsequent testing revealed that the bags discovered in  the console contained approximately 21.5 grams of freebase cocaine, commonly referred to as crack cocaine.

So, let’s recap, in normalspeak: officers were in a “minority high crime neighborhood”, looking for an excuse to pull someone over. They saw the defendant commit a motor vehicle violation. They pulled the car over and saw the defendant “make a movement toward his right side” (whatever the hell that means) and decide not only that he was armed, but because he was in a “MHCN”, he was dangerous and probably selling drugs. They handcuffed everybody and searched them and the car with impunity. We now contort ourselves to affirm this stream of clearly illegal activity by the police.

The defendant filed a motion to suppress relying on Arizona v. Gant, which holds that once you have arrested the occupants of the vehicle, there is no more legitimate “officer safety concern”, so a warrant must be obtained.

The Court rejects (emphatically!) the defendants contention that Gant applies since the defendant wasn’t technically arrested until after the drugs were discovered and instead agrees with the State that the “protective search” rubric of Michigan v. Long must control. In Long, the Supreme Court said that the:

purpose of protective searches to be the concern that if the suspect is not placed under arrest, he will be permitted to . . . [go free], and he will then  have access to any weapons

and thus, when analyzing a warrantless search under Long:

our focus is on whether the officers had a reasonable and articulable suspicion to believe that the defendant posed a danger and might access the  vehicle to gain control of a weapon.

Well, clearly, since the defendant wasn’t actually arrested and merely in a state of “custodial arrest (maybe)”, the question then becomes whether the officers had a reasonable and articulable suspicion that he posed a danger and that there was a weapon in the vehicle.

Remember now, that this was in a “minority high crime neighborhood” and that all three officers saw a “movement to his right side” and one saw him “close the center console”. That same officer then innocently “returned to the car” and saw “some plastic protruding” from that very same center console.

But that’s not enough, is it? Surely even the CT Supreme Court would not hold that that is sufficient to conduct a warrantless search of a motor vehicle? Of course not. Which is why we have the “collective knowledge of law enforcement” exception to the Fourth Amendment.

In conducting this analysis, we are cognizant of ‘‘the well settled principle that, in testing the amount of evidence that supports probable cause, it  is not the personal knowledge of the arresting officer, but the collective knowledge of the law enforcement organization at the time of the  arrest that must be considered. See Poulos v. Pfizer, Inc., 244 Conn. 598, 619 (1998) (McDonald, J., concurring) (Fourth  amendment law recognizes that the collective knowledge of the police determines probable cause. See Whiteley v. Warden, 401 U.S. 560, 568 [1971]; see 2 W. LaFave, Search and Seizure [3d Ed. 1996] § 3.5 [b], p. 259 n.46.); State v. Acquin, 187 Conn.  647, 657 (1982) (when we test the quantum of [evidence supporting] probable cause, it is not the personal knowledge of the  arresting officer but the collective knowledge of the law enforcement organization at the time of the arrest which must be considered)’’

Justice Who?

Miller and Rivera saw the defendant “make a movement to his right side”, Miller saw the defendant close the center console, Rivera frisked the defendant and pulled out a gun-like cell phone and cash, and Miller saw the plastic in the console. Of course, they all knew that it was a minority high crime area. And there was testimony that Miller and Rivera shared their observations and findings with one another. Wait, there wasn’t? Oh nevermind. Their knowledge is imputed onto one another.

In fact, applying Whiteley, why stop there? What if Rivera wasn’t on the scene and hadn’t discovered the call signs of drug activity: cell phones and cash? Wherever he was, he must’ve known that those items indicate drug activity. And Officer Krupke, on his beat at the other end of town surely knows that anyone who has cell phones and cash is an armed and dangerous drug dealer! So, of course, the officer at the scene had articulable and reasonable suspicion to search the vehicle. And look, they don’t even have to arrest anyone! Wheee!!!

Because anyone in the police department anywhere is cognizant of the fact that if you’re driving in a minority high crime neighborhood without a seatbelt and you make a movement to your right side and close the center console and happen to have cash and a cell phone, you must be an armed and dangerous drug kingpin. It’s in their – and your – DNA.

Welcome to the 24th Century, where the police are the Borg. The Fourth Amendment will be assimilated. Resistance is futile. Don’t drive.

[A plea: if anyone figures out what "movement to his right side" means, please leave a comment. I have no fucking clue. Kthxbai.]

I’m channeling my buddy Ryan McKeen here, but, the other day on the local listserve someone mentioned that a client had been given a ticket for “passing on the right“. It’s one of those things that we all do (you can admit it here, we’re all friends), like “following too closely” and don’t ever expect to get ticketed.

But since there are over a thousand crimes on the books, passing on the right being one of them* should come as no surprise. Being the intrepid blogger, it is my duty to inform you of the following:

The driver of a vehicle may overtake and pass upon the right of another vehicle only when conditions permit such movement in safety and under the following conditions: (1) When the vehicle overtaken is making or has signified the intention to make a left turn; (2) when lines of vehicles traveling in the same direction in adjoining traffic lanes have come to a stop or have reduced their speed; (3) upon a one-way street free from obstructions and of sufficient width for two or more lines of moving vehicles; (4) upon a limited access highway or parkway free from obstructions with three or more lanes provided for traffic in one direction. Such movement shall not be made by driving off the pavement or main-traveled portion of the highway except where lane designations, signs, signals or markings provide for such movement. Violation of any provision of this section shall be an infraction.

So, to break this down, you can pass on the right pretty frequently and in most driving conditions. For example, subsection (2) is horribly ambiguous. What does “lines of vehicles” mean? For that matter what does “reduced their speed” mean? If I’m in the left lane of a two-lane highway and the cars ahead of me start to slow down, from say 70 to 50, can I switch to the right lane to overtake? I assume the use of the plural “vehicles” eliminates an argument that the stupid car ahead of me was going 70 in a 65 zone and I’m late to work dammit so get out of the f*cking way you damn red Nissa-oh, hi there.

Subsection (4) is great to know. Most highways in CT have 3 lanes in some stretches; some like interstate 91 have 3 lanes for most of their journey. I shall pass on the right with impunity henceforth.

You can thank me later.

[Apparently, this is quite the hot-button issue that perplexes many. Check out the Google result for the search.]

*yes, I know that an infraction isn’t a “crime”, but stop getting in the way of my flow.