As I announced previously, today I am giving an talk on Google Hangouts on convention anti-harassment policies and how they fit into American anti-harassment law. Some related links:
Via Ken on Twitter:
Genius. Sheer genius.
I love everything about this, right down to the fine print on the website: "All audio, visual, and textual contents on this site have been granted an intellectual monopoly by the powers vested in the G-force."
"One horse-laugh is worth ten thousand syllogisms. It is not only more effective; it is also vastly more intelligent." – H. L. Mencken
The controversial billionaire Charles Saatchi told journalist Taki Theodoracopulos that his ex-wife 'always found you toe-curlingly vile' in a bizarre open letter to the magazine which has now resulted in the 77-year-old offering to take on Mr Saatchi in a cage fight.
Rumors that Taki Theodoracopulos has asked Texas lawyer Carl David Cedar to be his second at the cage match duel have not yet been confirmed as of press time.
In the comments to the previous post, many people were a bit confused by why an innocent man would falsely confess to a crime. Lots of advice and commentary appeared in the reader responses: "I don't…", "I would…", "It's simple…".
In my opinion all of these responses were utterly misguided…except for one guy who got it dead on right:
Don't talk to the police without a lawyer. Ever. Then it doesn't matter if they lie to you. Cases like this are more proof that if it's just you against the police, you will lose every time. After two days of interrogation in that kind of an environment, I doubt that he was processing anything well enough to defend his own interests. Nobody would.
Even aside from the general advice that one should never talk to the cops (a video well known to most of us here, but I was still happy that Doctor X presented another link), there's a specific bit in Dick Taylor's comment that deserves to be presented in a 70 point font made out of glowing red neon letters:
I doubt that he was processing anything well enough to defend his own interests
I have never been handcuffed, taken down to the police station, or put in a room with a one way mirror.
…but I was once, years ago, ruthlessly grilled by two cops on the sidewalk in a situation where I was not free to leave. I am a very strong willed individual who knew deep in my bones that I was right, they were wrong, and that I should not say anything to them. So, of course, I didn't say anything to them, and the whole thing resolved itself.
But the point I want to make is even a very strong willed individual who is mentally prepared for a confrontation with the cops and has rehearsed what he will (or rather, won't) say still experiences a level of psychological pressure that is hard to describe. This was in a neutral settings, in an encounter that lasted less than an hour, on an average day. I can not imagine the psychological pressure one would feel after 12 hours of interrogation, in a locked room far from home, while wearing handcuffs, after a family member had died.
Barracks lawyers asserting "I don't…", "I would…", "It's simple…", etc. do not, I suggest, have a feeling for what it feels like to actually be in the kinds of situations they are talking about.
I strongly recommend reading “Only the Guilty Would Confess to Crimes” : Understanding the Mystery of False Confessions by Douglas L. Keene and Rita R. Handrich.
It's about 10,000 words, so it will take 10 to 15 minutes…but it's 10 to 15 minutes well spent.
The original headline is "Court Weighs Police Role in Coercing Confessions", but I like mine a bit better.
detectives told Mr. Thomas repeatedly that the baby’s condition was an accident and that he would not be arrested. Several times they threatened to arrest his wife if he did not confess to abusing the baby, prompting him to say he would “take the rap.” Later they told him his son, who was already brain-dead, might die if he did not help doctors by describing how he hurt the boy.
Of course, the boy was already dead, and the detectives lied to the father, basically promising him that his son would live if he agreed to the fiction that he had done it, even if he hadn't.
After two days of interrogation, the father broke down, and agreed to the police lie, to save the life of his son and the freedom of his wife.
He is now serving a life sentence.
The judges were not with out sympathy. Oh, they had sympathy aplenty:
During arguments, several judges — among them Judge Lippman, Robert S. Smith and Eugene F. Pigott — expressed sympathy for Mr. Thomas’s contention that his confession was made under unfair pressure.
But sympathy only goes so far. There's precedent to worry about, and if innocent men have to go to jail to uphold precent, well, then, government employees understand the relative importance of these two things:
“We have precedent that says the police can use deception,” Judge Victoria A. Graffeo said. “What we are trying to figure out is when you enter this area of inappropriate pressure?”
“Don’t threaten to arrest people’s wives whom you know are innocent,” Mr. Frost answered.
“That’s a narrow rule,” Judge Pigott said.
Still, the judges are positively Solomonic compared to the prosecutor.
Ms. Egan… insisted the detectives had done nothing that would cast doubt on the veracity of Mr. Thomas’s statement.
Back in November I wrote about David Eckert of New Mexico. As you may recall, City of Deming police officers stopped Eckert for running a stop sign, and together with Hidalgo County Sheriff's Deputies concluded that there was probable cause to think that he was smuggling drugs in his anus. As I wrote back then, that conclusion was based on the following fanciful chain of supposition:
That his hands were shaking and he avoided eye contact during a traffic stop;
He refused to consent to a search of his person;
He stood erect with his legs together;
No drugs were found in his car or in a pat-down of him (police pat-downs for weapons often turn up drugs, which mysteriously feel like dangerous weapons when touched by police, or which are immediately identifiable as drugs when touched by police);
A drug dog (with no information given about the dog's training or qualifications or success rate) "alerted" to his car seat (though no drugs were found in his car); and
An unidentified Hidalgo County K-9 officer asserted, without any specificity, that Eckert had previously hidden drugs in his anus.
Based on those "facts," and with the approval of Deputy District Attorney Daniel Dougherty, the police sought and obtained a warrant to search Mr. Eckert's anus. The following rape and torture — and I use those words deliberately and advisedly — followed:
1. Eckert's abdominal area was x-rayed; no narcotics were found.
2. Doctors then performed an exam of Eckert's anus with their fingers; no narcotics were found.
3. Doctors performed a second exam of Eckert's anus with their fingers; no narcotics were found.
4. Doctors penetrated Eckert's anus to insert an enema. Eckert was forced to defecate in front of doctors and police officers. Eckert watched as doctors searched his stool. No narcotics were found.
5. Doctors penetrated Eckert's anus to insert an enema a second time. Eckert was forced to defecate in front of doctors and police officers. Eckert watched as doctors searched his stool. No narcotics were found.
6. Doctors penetrated Eckert's anus to insert an enema a third time. Eckert was forced to defecate in front of doctors and police officers. Eckert watched as doctors searched his stool. No narcotics were found.
7. Doctors then x-rayed Eckert again; no narcotics were found.
8. Doctors prepared Eckert for surgery, sedated him, and then performed a colonoscopy where a scope with a camera was inserted into Eckert's anus, rectum, colon, and large intestines. No narcotics were found.
No. No narcotics were found.
Are there consequences to that sort of conduct? Sort of. Eckert has settled with the City of Deming, the County of Hidalgo, Officers Bobby Orosco and Robert Chavez, and Deputies David Arredondo, Patrick Green and Robert Rodriguez. He has agreed to dismiss his lawsuit against them. he will be paid $1.6 million — it's not clear how that is apportioned between the City and the County, but you can assume that New Mexico taxpayers, not the law enforcement officers who engaged in a conspiracy to commit torture and rape, will foot the bill.
Deputy District Attorney Daniel Dougherty has a motion to dismiss pending. He will probably win it. Prosecutorial immunity is most likely broad enough, under current law, to cover approving a transparently ridiculous warrant application seeking to torture and rape a man based on fluff. Nice work if you can get it and you are in to that sort of thing, I suppose.
Doctor Robert Wilcox of the Gila Medical Center — who played the "bring out the gimp" role in this rape and torture scenario — has also filed a motion to dismiss, which in part argues that he is entitled to immunity because he was following orders — the orders of the police and the judicially approved search warrant. We'll see how that works out for him.
The $1.6 million was offered and accepted quite swiftly. That's a substantial amount of money for a case not involving death or dismemberment, especially during times when local governments don't have a lot of money. It suggests to me that the City and County thought they had a terrible case. It makes me even more suspicious that the key "fact" of the warrant application — that some unspecified deputy told the affiant that Mr. Eckert had smuggled drugs in his anus at some unspecified time before — was knowingly fabricated by somebody in the chain.
This case sickened me. But I can't say that it surprised me. The only thing out of it that would surprise me is if any of the individual police officers or sheriff's deputies faced any genuine significant consequences arising from it.
Whether or not you agree with my legal criticism of the sufficiency of the warrant application, bear this in mind: because of the mindset promoted by the Great War on Drugs, these cops, this deputy DA, this judge, and this doctor all reached the same moral conclusion. Their moral conclusion was that because they posited that this man had drugs in his anus — necessarily the small amount that could fit there — it was necessary and appropriate and acceptable forcibly and repeatedly to probe his anus, forcibly to give him an enema, to x-ray him, to sedate him, and to perform a colonoscopy on him under sedation. That's the mindset of the Great War on Drugs. It's perverted and despicable. It's subhuman. Do you support it?
I've previously written about Roger Shuler, the Alabama blogger currently in jail for contempt of court based on his defiance of an injunction that is likely an unconstitutional prior restraint of speech. Though I think that Shuler's history shows him to be a vexatious litigant, and though I think his erratic and foolish behavior has contributed substantially to this situation, I find the injunction against him and his incarceration for violating it very troubling. I'm quoted on that point in last weekend's New York Times.
There are some developments of note.
Shuler Has Been Convicted of Resisting Arrest And Sentenced to 90 Days Imprisonment, Suspended
Roger Shuler was charged with "resisting arrest" (sometimes called "contempt of cop") based on alleged conduct during his arrest in October 2013. Yesterday he was convicted of resiting arrest and sentenced to 90 days in jail, suspended, after a bench trial (that is, a trial by judge, not by jury) before Shelby County District Judge Ronald Jackson. I'm not an expert on Alabama criminal procedure, but my rough understanding is that misdemeanors like this are tried by bench trial in the "district courts" of Alabama, and can be appealed to the "circuit court" for a trial by jury, which is a strange way to run a railroad.1
Three things concern me about Shuler's bench trial.
First, he represented himself. It's not clear whether he refused appointed counsel (which he foolishly did before) or whether he was somehow deprived of one. I suspect he refused counsel, which is transcendentally idiotic and self-indulgent. He had a right to appointed counsel. Nothing in his history of pro se litigation suggests he was even minimally competent to defend himself.
Second, the judge denied Shuler a continuance to gather evidence, which Shuler requested because he had been in custody since October:
Jackson denied a request made by Shuler that the case be continued after he claimed that his incarceration prevented him from preparing his defense and obtaining certain discovery material, such as a video recording of the incident and copies of arrest warrants.
Now, representing yourself is likely to lead to this sort of result — you're not prepared for trial. But judges are supposed to take steps to protect the rights of pro se defendants. The arrest — and the alleged unlawful resisting of arrest — is less than three months old, and I find it highly dubious and suspicious that a judge would deny a continuance to give Shuler more time to seek discovery and prepare.
Third, it's not clear from the reporting how the prosecution proved the elements of the offense. I'm not talking about my standard skepticism of police claims that a suspect improperly resisted. I'm talking about proving that the arrest was lawful in the first place.
Under Alabama law resisting arrest is an attempt to prevent a lawful arrest. Resisting an unlawful arrest is not, as I understand Alabama law, a violation of the resisting arrest statute. To make a lawful arrest under Alabama law, a peace officer must have an arrest warrant, or must have probable cause to believe the suspect committed a felony, or must observe the suspect commit a crime. Shuler apparently argued at trial that the arresting officer didn't have a warrant and didn't observe any crime, and that therefore the arrest was not lawful and Shuler could not have committed the crime of resisting arrest. That's what his wife argues now. Regrettably the news coverage of the brief bench trial doesn't clarify how the prosecution proved (if it did) that the arrest was lawful in the first place.
The district judge imposed a suspended 90-day jail sentence, meaning Shuler is now incarcerated only on the contempt of court.
In short the coverage of the trial leaves me where I was before: questioning whether the Alabama court system is treating Shuler according to the rule of law, but also suspecting that Shuler is doing everything he can to undermine his own best interests.
Shuler Remains Incarcerated On The Contempt of Court Charges
Back in November, the Alabama court issued a permanent injunction against Roger Shuler forbidding him from saying certain things about the plaintiffs in his case and requiring him to remove certain posts from his blog. The court did so after a hearing that it characterized as a "permanent injunction hearing." As I explained back in November I believe that permanent injunction is a prior restraint in violation of the First Amendment; the cases permitting such prior restraint against defamation generally only do so after a full trial before the correct finder of fact (which should be a jury), not after some mere "hearing." There's nothing extraordinary about this case that should permit departure from that precedent. So unless Shuler somehow waived a trial by jury or consented to resolution of the defamation claim at a hearing — something that's not outside the realm of possibility given his erratic behavior — the injunction seems unlawful.
Yet Shuler remains in jail for contempt of court based on his refusal to comply with the injunction. How long can he stay there? That's complicated.
There are two types of contempt consequences: punitive and coercive. Punitive contempt sanctions punish contempt; coercive contempt consequences seek to force someone to do something. Here's how the Supreme Court described the difference, and the different requirements:
"Criminal contempt is a crime in the ordinary sense," Bloom v. Illinois, 391 U.S. 194, 201 (1968), and "criminal penalties may not be imposed on someone who has not been afforded the protections that the Constitution requires of such criminal proceedings." Hicks v. Feiock, 485 U.S. 624, 632 (1988). See In re Bradley, 318 U.S. 50 (1943) (double jeopardy); Cooke v. United States, 267 U.S. 517, 537 (1925) (rights to notice of charges, assistance of counsel, summary process, and to present a defense); Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 444 (1911) (privilege against self incrimination, right to proof beyond a reasonable doubt). For "serious" criminal contempts involving imprisonment of more than six months, these protections include the right to jury trial. Bloom, 391 U. S., at 199; see also Taylor v. Hayes, 418 U.S. 488, 495 (1974). In contrast, civil contempt sanctions, or those penalties designed to compel future compliance with a court order, are considered to be coercive and avoidable through obedience, and thus may be imposed in an ordinary civil proceeding upon notice and an opportunity to be heard. Neither a jury trial nor proof beyond a reasonable doubt is required.2
Shuler's contempt incarceration is nominally coercive rather than punitive — the Alabama court is putatively seeking to force him to comply with a (questionably lawful) order by imprisoning him until he obeys. That doesn't mean it is without limits. For instance, a court can't imprison you to coerce you do to something that's beyond your power. As the Supreme Court of Alabama said:
Because incarceration on a finding of civil contempt is a sanction coercive in nature and is designed to compel compliance with the court's orders, when the punishment can no longer have any coercive effect it becomes punitive and may no longer be imposed. . . . Because it is impossible to coerce that which is beyond a person's power to perform, once the confinement ceases to have any coercive impact, continued imprisonment for civil contempt constitutes a violation of due process.
Here, Shuler argued that he couldn't take down the blog posts from jail. That might have been grounds to release him, had he not also apparently proclaimed in court that he would not comply with the court's order, rendering the inability moot.
So how long can he be kept in jail? In that same decision quoted about, the Supreme Court of Alabama noted that someone subject to coercive contempt imprisonment "conceivably could have remained incarcerated indefinitely." In many American jurisdictions that's correct — indefinite coercive incarceration is a tool that has led to calls for reform. In that Alabama case — which involved a mother refusing to disclose the location of a son suspected of arson — the Supreme Court of Alabama suggested that a court should revisit the issue:
In cases such as this, after the contemnor has been incarcerated for a substantial length of time, the trial judge should bring the contemnor before him for another due process hearing in which he can reevaluate the factual basis of his first adjudication. If he is satisfied that his determination was correct, he should again incarcerate her. If he is of the opinion that she is telling the truth, of course, he should release her.
Hopefully the Alabama court will revisit Shuler's incarceration. At this point Shuler's options to get out of jail are to comply with the (probably unconstitutional) order or appeal it. Given Shuler's behavior in court, I'm skeptical that he will be able to mount a successful appeal. Telling the court that it's a joke and (incorrectly) that it lacks jurisdiction over you is generally not a recipe for appellate success.
We should be able to look critically both at Roger Shuler's behavior and of the system's treatment of him. Notwithstanding overly credulous coverage (like like Salon article that seems to accept Shuler's characterizations of his behavior uncritically and ignore the evidence of his actual behavior), Shuler remains his own worst enemy. His evasion of service, blogging about the same, and nutty-pro-se refusal to acknowledge the court all impede effective defense of his rights. But even nuts and cranks deserve due process of law; depriving them of it threatens to weaken everyone's rights. I'm troubled by how Shuler's civil and criminal cases were handled.
You know what would be a funny joke?
When you catch a guy driving drunk, instead of giving him a breathalizer test and then taking him to jail, instead zip tie his hands and then leave him in a Taco Bell parking lot.
…because he's Mexican, get it?
The drunk guy wandered into traffic, hands behind his back, and got struck and killed by a car?
Uh – no comment.
Talk to our union lawyer.
And put down that camera, mother-fucker!
< pulls on rubber gloves >
This essay ( Quit Throwing 9/11 In Our Faces ) is quite something.
Like me, Alex Marthews prefers not to drop the f-bomb …but there are times that try men's souls, and our ongoing slide into an actual honest-to-God yes-it-can-happen-here police state is one of them, and it's pushed both of us into it recently.
What's got Alex's blood up today?
In a better world, cops would have to buy malpractice insurance. Dangerous cops would have to pay more, leading some to change careers.
— ClarkHat (@ClarkHat) January 6, 2014
"I'm a good judge" … said by government employee and judge Gisele Pollack who, it seems, sentenced people to jail because of their drug use…while she, herself, was high on drugs.
But, in her defense, "she’s had some severe personal tragedy in her life".
And that's why, it seems, she's being allowed to check herself into rehab instead of being thrown in jail.
Reason.com informs us that a group of startups (Evertrue, Kinvey, Localytics, etc.) decided to get together to throw themselves a combined holiday party, so that employees of each of these small firms could schmooze with each other and others in the local tech scene.
As they have the last three years.
And, as they have the last three years, they structured the party thusly: a rented hotel function room, an open bar, a $50 cover charge, invites sent out over eventbrite.com, and surplus funds donated to charity via
tugg.org. (The exact recipient of the charity was TBA, but was to come from one of TUGG's "portfolio" of causes: Latino STEM Alliance, Youth Cities, Technology for Autism, Music & Youth, etc.
The Boston Police, meanwhile, was hard at work at solving the murders and homicides in the city.
I'm joking, of course.
The Boston Police were actually setting up a sting to catch anyone who violated the
204 CMR 4.03 1 (e) which makes it illegal to vary the price of alcohol over time.
I'd explain why this is an important regulation, and why anyone who violates it deserves to go to hell and/or be arrested, but I think it's pretty clear: we can't just have people selling things at different prices at different times, or we'd there'd be complete anarchy.
So, anyway, the Boston Police, having solved the problem of murder, rape, and larceny within its territory, turned its attention to a consortium of technology startups and raided their Christmas party.
The good news is that a peaceful resolution was achieved: once the tech startups (cough) voluntarily (cough) agreed that instead of donating the profits to something silly like encouraging Latino youth to excel at science and technology, they'd instead donate it to a
charity organization of armed individuals known as the "Boston Police Department", all charges were dropped.
I'm sort of curious to ask for records on Boston PD policies, but I've recently learned that Boston LEOs refuse to respond to public documents requests and threaten to arrest journalists who call them on the phone.
Render unto Caesar, my friends. And if at any point you're not sure which wordly power is Caesar, remember: he's the one who can crucify people without repercussions.
Scott Greenfield wins the award for the best article on the latest incident in our rape-happy police state: A New Low: Vaginal Probes At The Border.
…but Reason magazine wins not just the award for best headline for this particular outrage, but the lifetime award for best headline ever mocking the police state:
Drug Warriors Kidnap and Sexually Assault a Woman After Getting Permission From a Dog. Jacob
Sullivan Sullum [ typo! ] wrote the article. I'm not sure if he also wrote the headline, or if that was done by some unnamed Reason intern. If the latter: dude (or dudette): you rock.
A while back I blogged about shaming, civility, tolerance, etc.: Pax Dickinson: Thought Crime, Public Shaming and Thick Liberty in the Internet Age.
I've wanted to revisit the topic because I have more to say, but most of the events I've seen that would serve as a trigger / a convenient peg to hang my hat on have had a flaw: they've all been right-wingers getting their oxes gored in front of an audience of millions.
While, culturally, I lean more to the right than to the left, my take on this topic is content and viewpoint neutral, and so I've really not wanted to uncork while defending another righty, lest my point be buried under the appearance of always sticking up for members of the Coke party.
Today I have a few minutes to spare and an internet bullying victim who is on the left.
Let's talk about "#pajamaboy".
We all know the background: yesterday President Obama tweeted an ad designed to encourage people to tupperware-party his signature healthcare law to captive friends and family.
— Barack Obama (@BarackObama) December 17, 2013
As a quick aside, this is one of the most catastrophically tone-deaf pieces of propaganda I've seen since…well, since most of the other Obamacare ads I've seen. But that's neither here nor there.
The internet erupted in a tizzy. As predicted, photoshops ran wild.
…and then something really weird and, to my mind, unsettling happened.
People started doxing the model in the ad.
It quickly turned out that he is an Obama partisan and an employee at Organizing For Action, so this isn't quite as weird and wrong as possible.
…but it's still weird and wrong.
The Washington Examiner not only gave the model's name (which I, as a point of principal, will not repeat), pointed to his personal twitter feed, they screen-grabbed pictures he uploaded to Facebook.
Jamie Wearing Fools pulled his linked in resume.
Politico, Hot Air, etc. have all mocked him.
A site that I won't even link to has dug up his home address, Google streetview stalked him, and concluded based on the price of the house he lives in and the minivan parked out front that he lives with his parents.
My question, put succinctly, is: What. The. !@#$?
PajamaGuy clearly has politics different from mine. He's in favor of socializing healthcare in the US. He's even in favor of using force to do so: he likes the idea of a mandatory fine if I don't get my healthcare in the way he wants, and – presumably – he's in favor of State violence against me if I refuse to pay that fine.
So let us mock the ad if we want. Let us mock and debate the policy.
…but why in the name of all that's holy would we try to shame him? Specifically, shame him for being some twenty something nerdy man-child? I think it's safe to say that none of the people hurling this abuse has ever met the guy. We don't know if he's nerdy. We don't know if he's a man-child. And even if he is: so what? What has he done to deserve the weight of the entire internet raining abuse down on him?
One of my favorite political and economic writers, Megan McArdle, wrote recently (in a different context):
I’ve been trying to cut down on the snark…
why? Out of pity for my victims? Oh, sure, that’s a factor…
[ but ] the main reason I avoid the joys of snarky takedowns is that it’s not very good for you. Snark is immense, immense fun…
Whatever the ostensible subject of the snark, you’re always really saying the same thing: “Look at me! I am so smart and funny! Not like this stupid person I am making fun of! You should think less of them and more of me!”…
(By the way, it's one of Megan's better pieces, and given the high quality of her "average", that's saying a lot. Go. Read.)
So, anyway, this is why I defend Pajama Guy and suggest that – no matter how much he pushes the cultural buttons of those on the right – they should leave him – the real him, the actual human being him- alone:
1) It would be better for all of us to live in a culture where we can take political positions without being doxed, without having our personal pictures grabbed from social media and used to illustrate to an audience of millions how we are complete and utter failures.
2) It would be better to have a cultural norm where we can achieve step #1 via manners, instead of draconian privacy controls on social media and document sharing (think of the
children deadweight loss!)
3) Using snark as a tool is like eating cookies for every meal. It's utterly delicious…and not only are you doing bad things to yourself, but you'll feel bad
4) Not a single one of us would (a) enjoy having the weight of the internet come down on us, nor (b) would we look particularly cool if the other side had infinite resources to pick over our online presence and cherry pick items to make us look bad.
Put down your stones of personal reputation destruction and mockery. Do it even if you think the other side (whichever side that is) is living to a lower standard. It's good for your soul.