August 25, 2014

Eric Cartman Pens an Op-Ed

Since the killing of Michael Brown by a police officer in Ferguson, Missouri a couple of weeks ago, a lot of words have been written.  I can't claim to have read them all, but I can say without hesitation that this piece in the Washington Post has to be one of the most outrageous.  Strangely, it has nothing to do with the specific facts of the Brown shooting, but it says an awful lot about how the police view the world around them and the people who live there.

Sunil Dutta is now a professor of "homeland security" at a for-profit university, but before that he spent 17 years as an LAPD officer.  Last week, Dutta wrote a column entitled:
I’m a cop. If you don’t want to get hurt, don’t challenge me.
Provocative, yes?  However, if you know anything about journalism you know that, quite often, the person who writes the article doesn't write the headline and the headline is crafted to be sensational and generate page views.  Hell, some places like Slate are so bad about it that the percentage of time the headline matches the article contents probably hovers around the Mendoza Line.  So, maybe, give Dutta the benefit of the doubt and assume he has a more nuanced point to make.

Not so much:
Even though it might sound harsh and impolitic, here is the bottom line: if you don’t want to get shot, tased, pepper-sprayed, struck with a baton or thrown to the ground, just do what I tell you. Don’t argue with me, don’t call me names, don’t tell me that I can’t stop you, don’t say I’m a racist pig, don’t threaten that you’ll sue me and take away my badge. Don’t scream at me that you pay my salary, and don’t even think of aggressively walking towards me. Most field stops are complete in minutes. How difficult is it to cooperate for that long?
In other words:



To be fair, Dutta "side[s] with the ACLU" and argues that all officers should wear body cameras and all police cars should have a camera, too (although, as Radley Balko points out, those are hardly a panacea).  And he writes this:
And you don’t have to submit to an illegal stop or search. You can refuse consent to search your car or home if there’s no warrant (though a pat-down is still allowed if there is cause for suspicion). Always ask the officer whether you are under detention or are free to leave. Unless the officer has a legal basis to stop and search you, he or she must let you go. Finally, cops are legally prohibited from using excessive force: The moment a suspect submits and stops resisting, the officers must cease use of force.
Emphasis very much mine.  This, while nice in theory, directly contradicts the "respect my authoritah" mantra he relies on earlier.  If a cop says he's going to stop me and I don't think he has the right to do so, what do you think will happen if I don't "submit" to it?  We're talking about a relationship with a serious imbalance of power between the two people.  The officer has the gun, after all, and, as we've seen, generous legal cover should he or she use it.  I, on the other hand, am likely to at least wind up arrested for something vague like "disorderly conduct," of not worse.

Ken at Popehat is right.  Dutta's attitude, and the fact that we generally accept it without much objection, is "servile and grotesque."  If anything good comes out of this whole mess, maybe it will be that society starts to rethink the hands off attitude we have toward the way the police do their job.

August 21, 2014

Second Thoughts From An Unlikely Source

In 1989, 11-year-old Jacob Wetterling was snatched off the street by a stranger, the paradigmatic example of the kind of abduction that gives parents nightmares.  He was never found and his abductor never captured.

All that prompted Jacob's mother, Patty, to become involved with the issue of sex offender registries.  At the time, a few states had registries, but most did not.  Patty's efforts paid off in 1994, when Congress passed the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, the first comprehensive national sex offender scheme.

In the years since, state registries have exploded and Congress has repeatedly enacted new laws that expand the nature of the registries and provide harsher punishments for offenders who don't follow the registration scheme.  Now more that 750,000 people are on sex offender lists in the United States.  If it works, great, but what if it doesn't?

It's not surprising that people in my line of work would argue that sex offender registries are overbroad, prevent ex-cons from being able to reintegrate back into society, and generally constitute extensive punishment beyond their prison terms.  What is surprising is that Patty Wetterling is starting to have second thoughts, too:
These registries were a well-intentioned tool to help law enforcement find children more quickly,' she told us. 'But the world has changed since then.' What’s changed, Wetterling says, is what science can tell us about the nature of sex offenders.
What the science says is that, contrary to popular myth, sex offenders are not egregious recidivists.  In fact, they commit new crimes at a lower rate than burglars, fraudsters, and (naturally) drug offenders.  In addition, we know now that the overwhelming number of victims of sexual abuse are victimized by people close to them - family, friends, or community figures.  Jacob's kidnapping out of the blue is such a terror precisely because it is so rare.

Fear has played an important role in getting us where we are now:
Wetterling remembers watching this spiral of fear after Jacob’s disappearance. 'The fear was real. It was devastating,' she said. 'People became absolutely terrified. There were people in my community who wouldn’t let their children bike anymore or play in the park.' Twenty years on, she has come to see this reaction as 'not information-based.' And two decades after she succeeded in persuading Congress to pass Jacob’s Law, she’s now asking people to take a second look to see whether laws like the one named for her son are doing more harm than good and should be curbed.
Jeralyn at TalkLeft has pointed out before that laws named after people are generally a bad idea:
Let us not enact laws out of grief and passion, or in response to a singular criminal event, however horrific it might be. Cooler heads are needed where our fundamental liberties are at stake.
But she, and I, after all are criminal defense attorneys - what would you expect us to say?  Which is why Patty Wetterling's voice is so important on this issue.  She knows the pain of losing a child, but has come to realize that the anger and desire to do something - anything - in the wake of such a tragedy doesn't always produce good results.

August 11, 2014

The State Calls the Deceased to the Stand

All right, so why is this funny?



OK, it's funny for lots of reasons, most of them absurd.  But the most absurd bit involves a barrister seeking testimony from a dead man.  You just don't do such things.

Or do you?

A NPR story from last week tells of a crime in Brazil in which the victim came back from the grave to testify.  It involved a love triangle - two guys, one girl - that turned violent, leaving one of the male suitors, Rosa, dead.  So far, so straightforward and downright cliched.  And then:
Lenira is riven with guilt — she still loved Rosa — and so she goes to see a medium, a very famous one. She receives a letter from Rosa from the beyond.
'In the letter, channeled by this medium, the deceased confesses,' de Lima explains. 'He says his jealousy was the reason for his death. The letter includes details that only people close to him could have known.'
Nice injection of woo into the story, but here's where it gets really strange.  The letter was actually introduced in court on behalf of the shooter.  He was acquitted.

Turns out, this is not such an unusual occurrence in Brazil, particularly in the region where these events took place:
Judge Hertha Helena Rollemberg Padilha de Oliveira (no relation to Lenira) says there are many cases involving spirits in Brazil.
'If the proof is not illegal, it is lawful — you have to accept it in the process,' she says.
So when individuals present letters from the dead, written by a medium, de Oliveira says the judge has to accept it. 'He has to accept the proof in the process,' she says. 'He can't say, 'Take the letter away from the process.'
'[Brazil] is a very spiritual society,' the judge explains. 'Ninely percent of people probably will believe in some kind of spiritual influence. Most of the people believe in life after death.'
It's hard to argue with the defense attorney for introducing the letter - it worked, after all (let's hear it for zealous representation!).  It's harder to accept a court of law treating it as anything other than the trumped up sham it is.  Putting to one side that mediums are bunk (or giant douches), how on earth is the letter admissible as evidence?

In an American court, I think you'd have a serious problem getting around a hearsay objection.  True, there is an exception to the hearsay rule for statements made by a person against his own interest, but the justification for that is firmly rooted in the here and now.  The theory goes that no person would say something incriminating about himself if it wasn't true, so such statements are generally trustworthy.*  I'm not sure that justification applies to a statement from beyond the grave - if the declarant's already dead, what's the risk in making an incriminating statement?  Not to mention, those left behind and charged with a crime would have a hell of a motive to fabricate such a thing.

As it happens, according to at least one source, Brazilian law doesn't include a prohibition against hearsay, so that might not be a problem in cases like this one.  And, assuming you believe the woo involved, I suppose it's highly relevant.  It's certainly persuasive, although the two aren't always the same thing.

It's tempting to look at a story like this and dismiss it as something that happens elsewhere.  Indeed, the NPR pieces calls it "a tale of Brazil" that brings to mind the work of Gabriel Garcia-Marquez.  Only the use of spectral evidence is hardly limited to Brazil.

On January 23, 1897, Zona Shue was found dead in her home in Greenbrier County, down along the border with Virginia.  Suspicion almost immediately fell on Zona's husand, Erasmus (or Edward, if you prefer), thanks to his taking care of the body for burial, rather than leaving the task to others in the community.  The doctor who pronounced Zona dead made only a cursory examination.  Nonetheless, Zona was buried, with the cause of death listed first as "everlasting faint," and then simply "childbirth."

Shortly after Zona was buried, her mother Mary Jane reported that her daughter's ghost appeared to her, described what a cruel and otherwise shitty guy Erasmus was, and that he had broken her neck, killing her.  Mary Jane wen to the prosecutor, who had the body exhumed and a proper autopsy (such as those things were in 1897) done.  Sure enough, Zona's neck had been broken.

Erasmus was charged with murder and, at trial, Mary Jane was the main witness for the state.  In a clever bit of trial strategy, the prosecutor stayed away from the ghost stuff, but the defense attorney cross examined her about it anyway, allowing the jury to hear the story in all its glory.  Erasmus was convicted of murder and escaped a lynch mob, only to die in the Moundsville penitentiary a few years later.

Which just goes to show that woo, and its ability to seep into what should be deadly serious matters, knows no boundaries.  And it's pretty funny.

* The rules of evidence aren't necessarily based on modern psychological science or the evidence of fairly routine false confessions.

July 28, 2014

The End to a Great Soccer Story

Even in the world of post-World Cup soccer euphoria, there's not much reason people noticed the announced retirement of Jay Demerit last week.  Demerit, a defender, played 25 times for the United States national team, including several games in South Africa for the 2010 World Cup, and had to call time on his career for the most mundane of reasons - accumulated injuries prevented him from continuing to play at a top level.  He wound up his career with the Vancouver Whitecaps in MLS, moving there when the team joined the league in 2011.

What's really neat about Demerit, aside from the fact that he seems like a great guy off the field, is how he even got that far.

Like many American players, Demerit went to Europe to find playing time.  But he didn't move straight from a youth team to a competitive club near the top of a European league or even a second-tier club.  Instead, he went to England after college (taking advantage of some helpful European quasi-citizenry) and wound up at mighty Southall FC, who currently reside in the "Spartan South Midlands League."  For the uninitiated, that's at the 10th level of the English soccer pyramid.  If you want a baseball analogy, where the Premier League is the Major Leagues and the Championship is AAA, then Southall is, essentially, on the level of Little League.*

In fact, Demerit only played two games for Southall before moving on to Northwood (7th level - about high school), but never played a competitive match for them.  That's because he so impressed one of their preseason opponents, Watford (then in the Championship), that he earned a two-week tryout.  After that, he got a one-year deal.

Then came 183 games for Watford, over five seasons, during which Demerit became a regular starter and helped Watford move up to the Premier League.  In fact, he scored the game winning goal in the Championship playoff final against Leeds (*sniff*) that sent Watford up.  It was Demerit's performances at Watford that led to him being called up for the national team, which included play in the 2009 Confederations Cup (When we dumped Spain), as well as the aforementioned South African edition of the World Cup.  And from there, on to Vancouver.

Why Vancouver?  As Demerit explains:
After the World Cup in 2010 I was a free agent, and Whitecaps FC were the team that fought hardest for me and the team that wanted me to play the role that I hoped my experience in this game could handle.
It's nice to be wanted, isn't it?

All in all, it's the kind of story they make movies about right?  Right:



Thanks, Jay.  Enjoy your retirement!

* Actually, that's not fair.  Far down the rung as Southall is, its players are adults and even get paid, albeit a very very little amount.  It really is amazing the amount of soccer that gets played at a serious level in England.

July 23, 2014

How to Coerce a Confession (Amateur Edition)

Many times before I've written about false confessions and how police obtain them.  They're professionals, after all, and have at their disposal a frightening array of psychological and legal tricks that make such things possible.  But it's easier than that to force someone into making an untrue statement, as a recent case from Texas (highlighted by Radley Balko) shows.

Alfred Brown was a suspect in the murder of a Houston police officer.  The grand jury investigating the case brought before it Ericka Dockery, who had been Brown's girlfriend for about six months.  She told the grand jury that Brown was asleep on her couch when investigators thought he was meeting with other suspects.  But the grand jury didn't believe her and, by the time trial came around, Dockery was the state's star witness.

What happened - which we know only thanks to the fortuitous release of a usually secret grand jury transcript - is that Dockery was beaten down emotionally to the point where she did what most people who give false confessions do: she told her inquisitors what they wanted to hear.

Naturally, they suggested she was lying, asking the prosecutor about the penalty for perjury, before going on:
'I'm just trying to answer all your questions to the best of my ability,' Dockery says.
A bit later, a female juror asks pointedly: 'What are you protecting him from?'
'I'm not protecting him from anything. No ma'am. I wouldn't dare do that,' Dockery eventually responds. As [prosecutor] Rizzo and the grand jurors parse Dockery's every word and challenge each statement, she complains they're confusing her.
'No, we're not confusing you,' a grand juror says. 'We just want to find out the truth.'
But things get really nasty when the grand jurors raise the spectre of Dockery's children being taken away if she doesn't tell the "truth" they seek:
When the grand jury returns, the foreman says the members are not convinced by Dockery's story and 'wanted to express our concern' for her children if she doesn't come clean.
'That's why we're really pulling this testimony,' the foreman tells her.
The foreman adds that if the evidence shows she's perjuring herself 'then you know the kids are going to be taken by Child Protective Services, and you're going to the penitentiary and you won't see your kids for a long time.'
That was the crack in the wall, which the grand jurors then exploited with the flair of a seasoned attorney locked in cross examination of a hostile witness, with admonishments to "[t]hink about your kids, darling," and that "what we're concerned about here, is your kids."  Eventually, not only did Dockery recant Brown's alibi, she admitted making a call to another one of the suspects.  One grand juror even said she thought Dockery was in on the murder itself.

As a reward for her truthiness, Dockery was charged with perjury, anyway.  She was kept in jail for 120 days, released only when she agreed to give more evidence against Brown (she even had to check in with a detective every week).  Once she testified and Brown was convicted and sent to death row, Dockery's perjury charge evaporated and she went on with her life.

What makes this situation particularly repugnant, is, as Balko explains, grand juries aren't supposed to work this way:
Grand juries are supposed to protect us from false allegations, but the old saying that prosecutors could get a grand jury to 'indict a ham sandwich' reflects the reality that most fail on that front. Instead, as this study from the Cato Institute explains, they’re often used to harass and intimidate.
Keep in mind that the traditional rules of evidence don't apply in grand juries and witnesses don't have a right to have counsel with them while testifying.  In addition, it's an entirely one-sided affair, as there is no opposing counsel to try and keep things in line.  There's not even a judge - the prosecutor runs the show.

By the way, remember that phone call that Dockery said Brown made from her house originally?  Balko again (with my emphasis):
seven years later, a phone record showed up proving that Brown had called Dockery from her apartment on the morning of the murders, supporting his story — and hers, before she was pressured to change it. That important bit of exculpatory evidence was found in the garage of a Houston homicide detective. Brown is still waiting to learn if he’ll get a new trial.
It's perhaps not surprising that grand jurors, regular citizens who get pulled into doing this kind of duty, start acting like cops or prosecutors in pursuit of convictions over all else.  After all, if the cops don't have play by the rules, why should they?

July 18, 2014

Friday Review: The Postman

A lie gets halfway around the world before the truth has a chance to get its boots on.

You can lead with all new lines
If you believe in what you say
And life can be just as you make it

Believe the lie and it will all come true

Yeah, OK, so sometimes the lie is easier to tell than the truth.  But what happens when the lie is a noble one, one that (to borrow from The Simpsons) embiggens your fellow man?  And what happens if the lie gets out of control and takes on a life of its own?

That's the basic idea behind The Postman, by which I mean the lauded David Brin novel, not the critically savaged (hello Razzies!) Kevin Costner flick that sprang from it.  Gordon Krantz is not actually the titular postman - indeed, there are no such things in the post-apocalyptic world Brin lays out (in what is now our actual past). But he claims to be one, just to survive.  Then, shit happens.

Brin does an interesting thing in The Postman because instead of taking us through the apocalypse and the initial postlude of survival, he drops Gordon (and us) in 16 years after everything went to hell.  That's allowed the world to settle a bit, although it's settled into a world full of dangers, from mundane bandits to leftover pre-war survivalists with a philosophy that's very like Ayn Rand on steroids. It's while escaping from those kinds of bandits that Krantz comes upon an abandoned USPS truck, complete with dead driver inside.  He nicks the uniform purely for warmth and grabs a bag of mail for reading (and presumably other) material, no real intent to pull a scam on anybody.

The scam, such as it is, unfolds slowly and does require a bit of a stretch, that being that after nearly two decades of there being no such thing as the United States, much less the United States Postal Service, people are overwhelmed at the idea of getting mail service back.  Krantz's attempts to slip away from the first small town he comes to are complicated by people trying to pay him to take letters for them.  From there, Krantz builds an entire facade of being an official of the Restored United States and begins to forge some connections between the scattered Oregon settlements.

That's part one, in which Krantz falls into and embraces his scam.  Part two adds a nice twist.  He comes to the town of Corvallis (home of Oregon State University and a prime location for the post-apocalyptic Dies the Fire series), where society seems to be holding on pretty well and surging toward a brighter future.  It's precisely the kind of place Krantz has been looking for all these years, a place to settle down and help rebuild the world, but he's now trapped by his own lie.  He's unable to give up the postman game because of how much the lie has taken root behind him.  Thrown in another nice twist in the form of a still functional (maybe) super computer and this middle section of the book is a highlight.

The third part (perhaps not coincidentally, the part that wasn't originally published in stand alone form)doesn't fare so well.  There's an invading army of Randians threatening the struggling civilization, which Krantz decides to stay behind and fight, rather than flee.  Which is a shame, because when the big showdown comes - between genetically enhanced soldiers who have played no real part up to this point - he's watching from the sidelines.  Add in a weird bit of extremist feminism that seems more like parody than anything else and the book ends with a bit of a thud.

Naturally, this being Brin, it ends on an uplifting (ha!) sentiment.  He's big on science fiction as an inherently positive endeavor, showing how mankind will keep on keeping on in the future.  It's a hard fit for a post-apocalyptic tale, so it has to at least suggest that happy days are on the way to being here again.  Having said that, there's at least enough uncertainty in the world of The Postman to not make it feel like a cop out.

The Details
------------------------
The Postman
by David Brin
Published 1985
Winner Locus Award, Aurthur C. Clarke Award

July 16, 2014

I Was Going to Say That

So, when the Supreme Court announced the decision in the Hobby Lobby case, I was immediately seized by the need to write something satirical about it.  I got about this far, before I ran out of spunk (as often happens with satire):
SCENE: A boardroom on a bright summer morning.  Sunlight streams through an animatronic stained glass window depicting Eric Idle singing the "Money" song.
My closely held brethren in profit, welcome to this, the annual feast day of the holy Hobby Lobby.  Before I go further, let me thank the sisters for the wonderful coffee and baked goods upon which we feast this day.  Although, please, ladies, no more danishes?  The Danes, of course, are godless communists and we have no room for that here at GloboCorp.
And sisters, if you wish to stay while we speak, please sit down in the back of the room and be quiet?  Blessed are thou.
It would have continued in that vein, feasting the holy Hobby Lobby as the paragon of how to make even more money by appealing to the name of God.  As I had written up for insertion later:
Muhammad, my brothers, may have moved the mountain, but he did not increase the bottom line.
But, as I said, I ran out of spunk and it sat there for a bit.  Then, along comes Kathryn Pogin, writing at the New York Times philosophy blog (it's a thing) and she, while not aiming for the snark I was going for, hit what I think are all the high points of why the whole Hobby Lobby thing is such a miss.

To begin with, science and the actual world has little to do with Hobby Lobby's objections:
Some corporations that have objected to the contraceptive requirements of the Affordable Care Act, like Hobby Lobby, claim that they do not wish to discriminate against women by denying them access to contraceptives generally, and that their opposition is merely to abortion. However, their understanding of which medications act as abortifacients rests on an outdated understanding of medical science and is at odds with the facts of the matter. Use of these contraceptive methods is not tantamount to abortion, and moreover, providing women with access to safe, reliable contraceptives for free drastically reduces the actual abortion rate.
Nor does it matter that Hobby Lobby's concern about particular contraceptives is of recent and dubious vintage:
Hobby Lobby offered coverage for some of the contraceptives it now claims its religious faith forbids it to have any association with, until shortly after the Becket Fund for Religious Freedom asked it if it would be interested in filing suit. The company continues to profit from investments in the manufacturers of the 'objectionable' contraceptives through the 401(k) plan it offers its employees. Recently, Hobby Lobby has faced legal trouble for false advertising. It has built a fortune, in large part, by selling goods manufactured in China, infamous for its poor labor conditions and related human rights violations. These are the practices of a corporation that will emphasize the Christian faith of its owners when convenient and profitable, but set that faith aside when it would be costly to do otherwise.
What Pogin overlooks, or ignores (it's a philosophy blog, after all, not a legal one), is that none of those considerations were relevant to the Supreme Court.  Neither the majority or dissent were willing to take on the substance of the company's stated beliefs and how they interacted with the real world.  This, quite correctly, is a feature not a bug - the government, including the courts, shouldn't be in the business of deciding the truthfulness or sincerity of religious or similar beliefs.  But therein lies the rub - because those beliefs are off limit from official inspection, neither can they be a basis for a get-out-of-obeying-any-regulation-I-don't-like card.  The Supreme Court got it right in Smith.  Unfortunately, Congress saddled us with RFRA (which was the controlling law - not the First Amendment), another nasty gift of the Clinton era that keeps on giving.

Having said all that, Pogin also gets exactly right the actual impact of the decision on women and why the "it doesn't ban anything" argument rings hollow:
This is economic coercion. Opponents to the contraceptive mandate have insisted that women remain free to purchase whatever health care services they choose, but this is woefully insensitive to the reality that low-income women and families face. For these women, there is a very large difference between what is available to them for purchase in principle and in effect. It is easy for those who do not regularly face desperate decisions due to financial insecurity or medical complexities to forget the difference. An intrauterine device, for example, can cost a low-income full-time worker more than a month’s wages. For some women, this is both the safest and most effective medical option, yet hopelessly unaffordable.
Pogin has another interesting angle, too, that being that Hobby Lobby isn't even a good Christian, but that's a hunt in which I have absolutely no dog.

At the end of the day, the question is whether Hobby Lobby is as limited in its impact as the Court seems to think it will be.  I, honestly, can't see a way to distinguish the exemption approved there from the ones the Court seemed to clearly think were different, but I sometimes lack imagination.

I guess we'll have to wait and see after GloboCorp finds Jesus, huh?