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.