Tagged: Criminal Justice

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Is Rapper Brandon "Tiny Doo" Duncan Being Prosecuted For Rapping About Gangs?

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Two things are clear: Brandon Duncan raps under the name "Tiny Doo," and he's being prosecuted for participation in the Lincoln Park street gang in San Diego.

After that, things get a little cloudy. But it appears that the San Diego County District Attorney's Office is prosecuting Duncan on the theory that a gang's activity made his rap music more popular, and that he therefore benefitted from gang activity. That poses some First Amendment problems.

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Dinesh D'Souza's Sentence Isn't Remarkable

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Recently I wrote about political pundit Dinesh D'Souza's selective prosecution claim and about the support for him at sentencing. Today a federal judge sentenced him to five years probation, eight months of that in a community confinement center, community service, and "therapeutic counseling."

A few comments:

1. The sentence isn't remarkable at all. Both sides agreed on the sentencing range under the United States Sentencing Guidelines. Though the recommended sentence under those guidelines was 10-16 months, the judge had discretion to go lower or higher. Probation with a term of home detention or "community confinement" is a very common approach to a nonviolent first offender with a low guideline range. For a 53-year-old with no record, this is roughly in the middle of the array results I would expect. In a case like this I would have shot for probation conditioned on home confinement but told the client that a short term in custody or a term in "community confinement" was a strong possibility. You may see it as unreasonably lenient or hash, but federal criminal practitioners won't.

2. A "community confinement center" sounds Orwellian, but it's just a halfway house. It's like a halfway house used for recovering addicts. Imagine a slightly dingy and run-down house in a not-quite-good neighborhood, with a group of people and someone on staff usually there. Being in a halfway house means that for eight months D'Souza will have to sleep there, but will be allowed to leave to go to work, church, and the doctor, or to other activities permitted by the house supervisors.

3. "Therapeutic counseling" sounds Orwellian but isn't. The BOP doesn't have people to counsel you on politics. Counseling as a condition of probation is typical. Available counseling includes drug, alcohol, marital, parenting, anger management, psychological, and so forth. I don't know what particular element of D'Souza's background resulted in the counseling condition, but there's absolutely no basis to jump to the conclusion that it's meant to reeducate him.

Remember: usually you can't rely on media reports of criminal justice events.

59

Patrick McLaw, Skepticism, And Law Enfocement's Obliging Stenographers

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Imagine a local news channel in a small city. The channel starts running stories fed to it by criminals, thugs, and n'er-do-wells. The stories are uncritical and unquestioning. "Local methamphetamine dealers report that their product is more reasonably priced and safer than ever," goes one report. "Consent: is it an unfairly ambiguous concept?" goes another. "A career burglar explains why alarms are a bad investment," goes the third.

Seems ridiculous, like something out of The Onion, doesn't it? Yet we endure the equivalent all the time — news stories that are indistinguishable from press releases written by law enforcement or government.

Take the story of Patrick McLaw or Maryland. Several writers are posing troubling questions about whether McLaw was suspended from his teaching job, subjected to some sort of involuntary mental health examination, and his home searched based on the fact that he wrote science fiction novels set in 2902 under a pen name. Jeffrey Goldberg explains:

A 23-year-old teacher at a Cambridge, Maryland, middle school has been placed on leave and—in the words of a local news report—"taken in for an emergency medical evaluation" for publishing, under a pseudonym, a novel about a school shooting. The novelist, Patrick McLaw, an eighth-grade language-arts teacher at the Mace's Lane Middle School, was placed on leave by the Dorchester County Board of Education, and is being investigated by the Dorchester County Sheriff's Office, according to news reports from Maryland's Eastern Shore. The novel, by the way, is set 900 years in the future.

Though I am generally receptive to believing the worst about law enforcement and local government, I was skeptical when numerous people emailed asking me to write about this. I suspected that more than two books were at issue. Subsequent reporting suggests that McLaw may have sent a letter that was the trigger of a "mental health investigation":

Concerns about McLaw were raised after he sent a four-page letter to officials in Dorchester County. Those concerns brought together authorities from multiple jurisdictions, including health authorities.

McLaw's attorney, David Moore, tells The Times that his client was taken in for a mental health evaluation. "He is receiving treatment," Moore said.

Because of HIPPA regulations mandating privacy around healthcare issues, he was unable to say whether McLaw has been released.

McLaw's letter was of primary concern to healthcare officials, Maciarello says. It, combined with complaints of alleged harassment and an alleged possible crime from various jurisdictions led to his suspension. Maciarello cautions that these allegations are still being investigated; authorities, he says, "proceeded with great restraint."

What's more, he told The Times, "everyone knew about the book in 2012."

We need more facts before we draw firm conclusions, but for the moment, I think there is reason to believe that the story may be more complicated than the provocative "authorities overreact to citizen's fiction writing" take.

But it is not at all surprising that people would leap to that conclusion. Two factors encourage it.

The first factor is law enforcement and government overreach. When schools call the police when a student writes a story about shooting a dinosaur, and when law enforcement uses the mechanism of the criminal justice system to attack satirical cartoons or Twitter parodies, it is perfectly plausible that a school district and local cops would overreact to science fiction.

The second factor is very bad journalism. The Patrick McLaw story blowing up over the long weekend can be traced to terrible reporting by WBOC journalist Tyler Butler in a post that was linked and copied across the internet. Butler reported McLaw's pen name as a sinister alias, reported as shocking the fact that McLaw wrote science fiction about a futuristic school shooting, and quoted law enforcement and school officials uncritically and without challenge. Faced with the bare bones of the story, any competent reporter would have asked questions: is this only about the two books he wrote? Was there a basis, other than fiction, to think he posed a threat? Are there any other factors that resulted in this suspension and "mental health examination?" Was the examination voluntary or involuntary? Is it reasonable to suspend and "examine" someone and search their home over science fiction?

Even if authorities refused to answer those questions, a competent reporter would discuss them. "Authorities declined to say whether any factors other than the two books led to the investigation," Tyler Butler might have written. Asking the questions and reporting on them might have restrained our temptation to believe the worst. Instead he gave us this:

Those books are what caught the attention of police and school board officials in Dorchester County. "The Insurrectionist" is about two school shootings set in the future, the largest in the country's history.

Journalists ought to ask tough questions of government and law enforcement, to present us with the facts we need to evaluate their actions. But too often they don't. Too often journalists run with law enforcement "leaks" without considering how the leaks impact the rights of the suspects, or asking why the government is leaking in the first place. Too often journalists allow themselves to be manipulated by law enforcement, not recognizing the manipulation as the important part of the story. To often journalists accept the headline-grabbing take rather than the less scandalous but more correct take. Too often journalists buy access with the coin of deference. Too often journalists report the law enforcement spin as fact.

That's why when a local news channel reports matter-of-factly that a man was detained and "examined" over science fiction, it doesn't occur to us to question the story. Just as it's entirely plausible that the government might do it, it's entirely plausible that journalists might report it without criticism, analysis, or apparent consciousness of how outrageous it would be.

Sunil Dutta Tells It Like It Is About American Policing

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Sunil Dutta, a "professor of homeland security" at Colorado Tech University, was an LAPD cop for 17 years. Today, the Washington Post ran his column explaining how citizens should interact with the police.

First, Dutta talks about the challenges cops face from rude civilians:

Working the street, I can’t even count how many times I withstood curses, screaming tantrums, aggressive and menacing encroachments on my safety zone, and outright challenges to my authority. In the vast majority of such encounters, I was able to peacefully resolve the situation without using force. Cops deploy their training and their intuition creatively, and I wielded every trick in my arsenal, including verbal judo, humor, warnings and ostentatious displays of the lethal (and nonlethal) hardware resting in my duty belt. One time, for instance, my partner and I faced a belligerent man who had doused his car with gallons of gas and was about to create a firebomb at a busy mall filled with holiday shoppers. The potential for serious harm to the bystanders would have justified deadly force. Instead, I distracted him with a hook about his family and loved ones, and he disengaged without hurting anyone. Every day cops show similar restraint and resolve incidents that could easily end up in serious injuries or worse.

Note how Dutta unsubtly conflates genuinely dangerous things — like threatening to set off a gas bomb — with curses, "tantrums," and "outright challenges to my authority." This sleight-of-hand miscategorization is how cops convince us they need the power to order us to refrain from gathering in one place to protest or put away that menacing cell phone or stop being developmentally disabled around them. See, cops know what is dangerous, and if you say they shouldn't be able to tell you not to do whatever they say is dangerous, you're really saying you should be allowed to set off gasoline bombs at the mall.

We are still learning what transpired between Officer Darren Wilson and Brown, but in most cases it’s less ambiguous — and officers are rarely at fault. When they use force, they are defending their, or the public’s, safety.

"Rarely" is an empirical term; Dutta does not cite evidence. Certainly cops are very rarely deemed responsible by the justice system for use of force. But a rather rather large number of people are killed by police every year; we don't know exactly how many, and we have no reliable resource to test law enforcement asserts that the killings are justified. Never mind lesser violence, like tasing and pepper spraying people, or things not classified as uses of force, like forcible torture and rape of suspects under the guise of "investigation," or situations where police got innocent people killed through idiocy.

But this is Dutta's main point:

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?

Note now nicely this dovetails with Dutta's first point. First, Dutta gets to decide what is dangerous and what he can order you to cease doing. Because gas bombs! Second, if you keep doing it, that's a tasing. Or a beating. Or a shooting.

Dutta's message is this: a cop can always tell you what to do, and you have to take it, or else. (The "else" is violence.)

We have a justice system in which you are presumed innocent; if a cop can do his or her job unmolested, that system can run its course. Later, you can ask for a supervisor, lodge a complaint or contact civil rights organizations if you believe your rights were violated. Feel free to sue the police! Just don’t challenge a cop during a stop.

This is either blissfully naive or breathtakingly dishonest. Do we have a justice system? By name, yes. Is it effective in deterring cops from abusing citizens or punishing them when they do? No. If you go and ask that supervisor to lodge a complaint, better have a lawyer's phone number, because you may get threatened and harassed. If you hope the cop will be charged criminally for misbehavior, you're going to be waiting a very long time for no result. When it comes to breaking the law, the system treats you one way and cops another.

But Dutta's rationales are mere window dressing. His core message is this:

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.

The outrageous thing is not that he says it. The outrageous thing is that we accept it.

Would we accept "if you don't want to get shot, just do what the EPA regulator tells you"? Would we yield to "if you don't want your kid tased, do what the Deputy Superintendent of Education tells you"? Would we accept "if you don't want to get tear gassed, just do what your Congressman tells you?" No. Our culture of individualism and liberty would not permit it. Yet somehow, through generations of law-and-order rhetoric and near-deification of law enforcement, we have convinced ourselves that cops are different, and that it is perfectly acceptable for them to be able to order us about, at their discretion, on pain of violence.

It's not acceptable. It is servile and grotesque.

Lawsplainer: How Mike Brown's Alleged Robbery Of A Liquor Store Matters, And How It Doesn't

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Last Friday, as the killing of Mike Brown continued to roil Ferguson, Missouri, the Ferguson Police Department released a police report and surveillance video showing a young man shoving a protesting convenience store clerk and leaving with merchandise. Mike Brown's family lawyer confirmed that the video showed Brown, but decried its release as an irrelevant smear. Later Ferguson's police chief later admitted that officer Darren Wilson did not seek to detain Brown based on the robbery, but because Brown was walking in the street.

Would the alleged robbery1 matter, in any case brought against Darren Wilson for the death of Mike Brown?

It might matter legally, but only for narrow reasons. It does matter practically, but shouldn't.

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Don't Give Special Rights To Anybody! Oh, Except Cops. That's Cool.

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I was all set to write a post making this point: it's offensive and irrational for the police to say "we have to protect the identity of a cop who shoots a citizen, for safety" when the criminal justice system routinely names suspects and defendants — either openly or by leak. People are accused of horrible crimes all the time, and does the system hold back their names out of fear that they or their families will face retribution? No.

But Kevin Williamson has already done a great job writing that post:

Here’s a microcosm of the relationship between state and citizen: We know the names of the nine people charged with felonies in the Ferguson looting, but not the name of the police officer at the center of the case.

Here's what I want to add to Kevin's observations: this particular piece of special pleading for cops is not unique; it's part of a pattern.

If you are arrested for shooting someone, the police will use everything in their power — lies, false friendship, fear, coercion — to get you to make a statement immediately. That's because they know that the statement is likely to be useful to the prosecution: either it will incriminate you, or it will lock you into one version of events before you've had an opportunity to speak with an adviser or see the evidence against you. You won't have time to make up a story or conform it to the evidence or get your head straight.

But what if a police officer shoots someone? Oh, that's different. Then police unions and officials push for delays and opportunities to review evidence before any interview of the officer. Last December, after a video showed that a cop lied about his shooting of a suspect, the Dallas Police issued a new policy requiring a 72-hour delay after a shooting before an officer can be interviewed, and an opportunity for the officer to review the videos or witness statements about the incident. Has Dallas changed its policy to offer such courtesies to citizens arrested for crimes? Don't be ridiculous. If you or I shoot someone, the police will not delay our interrogation until it is personally convenient. But if the police shoot someone:

New Mexico State Police, which is investigating the shooting, said such interviews hinge on the schedules of investigators and the police officers they are questioning. Sgt. Damyan Brown, a state police spokesman, said the agency has no set timeline for conducting interviews after officer-involved shootings. The Investigations Bureau schedules the interviews at an “agreeable” time for all parties involved, he said.

Cops and other public servants get special treatment because the whole system connives to let them. Take prosecutorial misconduct. If you are accused of breaking the law, your name will be released. If, on appeal, the court finds that you were wrongfully convicted, your name will still be brandished. But if the prosecutor pursuing you breaks the law and violates your rights, will he or she be named? No, usually not. Even if a United States Supreme Court justice is excoriating you for using race-baiting in your closing, she usually won't name you. Even if the Ninth Circuit — the most liberal federal court in the country — overturns your conviction because the prosecutor withheld exculpatory evidence, they usually won't name the prosecutor.

And leaks? Please. Cops and prosecutors leak information to screw defendants all the time. It helps keep access-hungry journalists reliably complaint. But leak something about an internal investigation about a shooting or allegation of police misconduct? Oh, you'd better believe the police union will sue your ass.

Cops, and prosecutors, and other public employees in the criminal justice system have power. It is the nature of power to make people believe that they are better than the rest of us, and entitled to privileges the rest of us do not enjoy.

The question is this: are we so addled by generations of "law and order" and "war on crime" and "thin blue line" rhetoric that we'll accept it?

Sorry, Melissa

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I have a latecoming apology.

25 years ago this summer, when I interned at the Los Angeles County District Attorney's Office during college, I was assigned to a project with Melissa, another intern. We helped research and design "caught" posters. Imagine a wanted poster with a person's photo, only instead of saying the person is wanted, it says they have been convicted of a crime and states their sentence. The DA's Office printed the posters and put them up in the gang-controlled neighborhoods from which the defendants sprang. The DA's office thought that public shaming of gang members through four-color posters in their neighborhoods would be a effective deterrent against armed robberies and drug murders. That was the extent of the DA's Office's grasp of sociology. My excuse is that I was 19.

Anyway, one Friday when Melissa left early, I left her a panicked message saying that the poster we had just crafted and released and had posted was wrong, because the defendant — let's call him John Smith — had not been convicted of homicide in violation of California Penal Code section 187, but of unlawful operation of an unlicensed riding mower in violation of City Code section 187, and that there was talk of a lawsuit and a press conference, and the DA wanted to talk to us. This was hard to confirm or deny on a weekend because there was no internet at the time on which Melissa could look up either Mr. Smith or the LA City Code.

That was mean. Sorry Melissa.

Supreme Court Conjures Corrorboration of Anonymous Tip Out of Thin Air To Justify Traffic Stop

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Today the United States Supreme Court decided Navarette v. California, upholding a California court's determination that a traffic stop of Navarette's truck — which, as it turned out, contained drugs — was supported by reasonable suspicion, and therefore constitutional. The opinion is here. It's a 5-4 decision, with Justice Thomas writing the majority opinion and Justice Scalia writing the dissent. It should have gone the other way.

The issue at hand is the power and reliability of anonymous tips. Here the California Highway Patrol received an anonymous tip through a 911 dispatcher that a silver Ford 150 pickup on a particular highway had run the tipster off the road. The CHP saw a truck matching the description on the highway and stopped it on suspicion of drunk driving — but did not first observe the truck doing anything illegal or reckless. In fact, the cops followed the truck for five miles without observing any traffic violations. The cops approached the truck and (allegedly) smelled marijuana, which led to a search and the discovery of a substantial amount of marijuana in the truck bed.

The Supreme Court has found that the Fourth Amendment permits brief, investigative stops of vehicles based on reasonable suspicion alone — that is, a "particularized and objective" basis to believe some crime is being committed. That's not new. Nor is it new that an anonymous tip can form part of the basis for reasonable suspicion or probable cause — if the tip is corroborated.

What's novel here is that the majority agrees that reasonable suspicion can be premised entirely on a functionally anonymous tip.2 Traditionally the key to corroboration has been confirmation of incriminating details, not details that any observer could make about a innocent subject. So, for instance, if you call in an anonymous tip that I am running a meth lab in my blue house on the corner, and the cops confirm that I have a blue house on the corner, those details are not meaningfully corroborative. If the cops find evidence of witnesses seeing me move precursor chemicals into my blue house on the corner, that's meaningfully corroborative. Here, the police observed no erratic driving or other corroboration of meaningful facts. In fact, they observed five minutes of unremarkable driving. The only corroboration was the innocent fact of the truck being present on the highway.

The majority uses sophistry to turn innocent facts into facts that corroborate the anonymous typster:

By reporting that she had been run off the road by aspecific vehicle—a silver Ford F-150 pickup, license plate 8D94925—the caller necessarily claimed eyewitness knowledge of the alleged dangerous driving. That basis of knowledge lends significant support to the tip’s reliability.

. . . .

A driver’s claim that another vehicle ran her off the road, however, necessarily implies that the informant knows the other car was driven dangerously.

. . .

There is also reason to think that the 911 caller in this case was telling the truth. Police confirmed the truck’s location near mile marker 69 (roughly 19 highway miles south of the location reported in the 911 call) at 4:00 p.m.(roughly 18 minutes after the 911 call). That timeline of events suggests that the caller reported the incident soon after she was run off the road. That sort of contemporaneous report has long been treated as especially reliable.

. . . .

Another indicator of veracity is the caller’s use of the 911 emergency system. See Brief for Respondent 40–41,44; Brief for United States as Amicus Curiae 16–18. A 911 call has some features that allow for identifying and tracing callers, and thus provide some safeguards against making false reports with immunity.

The majority is turning three things into corroboration here: (1) the fact that the person claimed something happened immediately after it allegedly happened, (2) the fact that a person predicted that a particular car would be on a particular highway, and (3) the fact that the person called 911 and made the claim. But the 911 caller could have claimed anything — that someone was pointing a rocket launcher out the window of the truck, that someone was stabbing a nun in the back of the truck — and gotten the same result. (1) and (3) are just restating the premise "we got an anonymous tip about this," and (2) is a purely innocent fact that any public observer could know. This approach renders the concept of corroboration almost meaningless by making calls to 911 about highway behavior effectively self-corroborating. If I want to call 911 and report that you are weaving in and out of traffic and appear drunk, under this decision, I just created reasonable suspicion to stop you. The cops can pull you over without observing you driving oddly at all — in fact, they can stop you even if they follow you for five minutes and you are driving perfectly.

Justice Scalia's dissent is thorough and merciless, as it should be. Here's how he ends it:

The Court’s opinion serves up a freedom-destroying cocktail consisting of two parts patent falsity: (1) that anonymous 911 reports of traffic violations are reliable so long as they correctly identify a car and its location, and (2) that a single instance of careless or reckless driving necessarily supports a reasonable suspicion of drunkenness. All the malevolent 911 caller need do is assert a traffic violation, and the targeted car will be stopped, forcibly if necessary, by the police. If the driver turns out not to be drunk (which will almost always be the case), the caller need fear no consequences, even if 911 knows his identity. After all, he never alleged drunkenness, but merely called in a traffic violation—and on that point hisword is as good as his victim’s.

Drunken driving is a serious matter, but so is the loss of our freedom to come and go as we please without police interference. To prevent and detect murder we do not allow searches without probable cause or targeted Terry stops without reasonable suspicion. We should not do so for drunken driving either. After today’s opinion all of us on the road, and not just drug dealers, are at risk of having our freedom of movement curtailed on suspicion of drunkenness, based upon a phone tip, true or false, of a single instance of careless driving.

Justice Scalia is right. This decision waters down corroboration to the point that it is meaningless, effectively making any anonymous tip of a driver's behavior sufficient to justify a traffic stop. That's a bad result.

See also Jonathan Adler.

The Kaley Forfeiture Decision: What It Looks Like When The Feds Make Their Ham Sandwich

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Yesterday, in Kaley v. United States, the United States Supreme Court ruled 6-3 that a criminal defendant has no right to challenge the pretrial freezing of assets based on a forfeiture allegation in a grand jury indictment, even if the criminal defendant needs those very assets to pay his or her attorney of choice.

The question presented was not whether assets can be frozen before trial — it's old news that they can — or whether they can be frozen even if it deprives the defendant of the ability to pay counsel. The question presented was whether the defendant could ask the judge to review the grand jury's probable cause finding in the course of challenging the freeze. The Court found that the defendant had no such right, because of the trust we place in the grand jury:

A grand jury has already found probable cause to think that the Kaleys committed the offenses charged; that is why an indictment issued. No one doubts that those crimes are serious enough to trigger forfeiture. Similarly, no one contests that the assets in question derive from, or were used in committing, the offenses. See supra, at 5. The only question is whether the Kaleys are constitutionally entitled to a judicial re-determination of the conclusion the grand jury already reached: that probable cause supports this criminal prosecution (or alternatively put, that the prosecution is not "baseless," as the Kaleys believe, supra, at 5). And that question, we think, has a ready answer, because a fundamental and historic commitment of our criminal justice system is to entrust those probable cause findings to grand juries.

As Scott Greenfield puts it:

Indictment = Probable Cause

Forfeiture = Probable Cause

Indictment = Forfeiture

Others, including Scott, have explained what this means: prosecutors can deprive you of the effective defense of your choice by aggressive use of forfeiture statutes. I have seen it done to my clients.

Rather than tread over the ground well-described by my colleagues in the criminal defense bar, today I'd like to describe something else for you: what a federal grand jury proceeding looks like. From 1995 through 2000, I presented cases of varying complexity to federal grand juries as a federal prosecutor in Los Angeles. That experience did not inspire confidence in the process. Rather, it taught me that the adage that a grand jury will indict a ham sandwich is an understatement. A better description would be that the prosecution can show a grand jury a shit sandwich and they will indict it as ham without looking up from their newspapers. The notion that the Supreme Court relies upon — that the grand jury has a "historical role of protecting individuals from unjust persecution" — is not a polite fiction. A polite fiction would have some grounding in reality. It's an offensive fiction, an impudent fiction, a fiction that slaps you across the face and calls your mother a dirty bitch.

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What Dinesh D'Souza Would Have To Prove To Establish Unconstitutional Selective Prosecution

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Conservative author and speaker Dinesh D'Souza has been indicted in federal court in New York for campaign finance violations. More specifically, the feds have charged D'Souza with what is frequently called donation laundering. They assert that he reimbursed other for their donations to his chosen United States Senate candidate, thereby exceeding the statutory limit on personal donations. They also assert that he caused a false statement to be submitted to the feds, in that as a result of the alleged donation laundering the candidate's Federal Elections Commission statement identifying donors was rendered inaccurate.

Some people are suspicious that D'Souza is being singled out for his strong criticism of the Obama Administration, including his polemical documentary "2016: Obama's America." I hold no brief for D'Souza — I find him to be a crass, Coulteresque, unconvincing bomb-thrower. But I do not find it difficult to believe that the United States Department of Justice would single out an American for prosecution based on political views that are unpopular or offensive to those in power. My view is absolutely not limited to the Department of Justice under this administration. Selection of anyone for prosecution based on their views — whether I like their views or not — is an abhorent abuse of power that could easily be turned upon me or upon people with views I like.

A federal defendant who feels targeted based on protected speech may file a motion to dismiss the case for "selective prosecution." But it's a very difficult motion to win.

Federal prosecutors have extraordinary broad discretion in deciding whom to prosecute. However, they can't target people for prosecution based on constitutionally prohibited factors:

As we have noted in a slightly different context, however, although prosecutorial discretion is broad, it is not “ ‘unfettered.’ Selectivity in the enforcement of criminal laws is … subject to constitutional constraints.” United States v. Batchelder, 442 U.S. 114, 125, 99 S.Ct. 2198, 2205, 60 L.Ed.2d 755 (1979) (footnote omitted). In particular, the decision to prosecute may not be “ ‘deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification,’ ” Bordenkircher v. Hayes, supra, 434 U.S., at 364, 98 S.Ct., at 668, quoting Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 505, 7 L.Ed.2d 446 (1962), including the exercise of protected statutory and constitutional rights, see United States v. Goodwin, supra, 457 U.S., at 372, 102 S.Ct., at 2488.

Even though prosecution based on impermissible factors like race or protected speech is prohibited, the standard for proving it is high. The Supreme Court has announced that prosecutorial decisions are cloaked with a "presumption of regularity," and that courts must "presume" they have acted rightly absent "clear" evidence of discriminatory targeting. The Supreme Court explains:

Judicial deference to the decisions of these executive officers rests in part on an assessment of the relative competence of prosecutors and courts. “Such factors as the strength of the case, the prosecution's general deterrence value, the Government's enforcement priorities, and the case's relationship to the Government's overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake.” Id., at 607, 105 S.Ct., at 1530. It also stems from a concern not to unnecessarily impair the performance of a core executive constitutional function. “Examining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor's motives and decisionmaking to outside inquiry, and may undermine prosecutorial effectiveness by revealing the Government's enforcement policy.” Ibid.

Sometimes, when you devote so much concern to the state's interest in unfettered prosecution, there's not much concern left for the defendant. Judges are only human, after all.

Under this regime, to show selective prosecution, a defendant must establish by "clear" evidence that "similarly situated individuals" without the prohibited characteristic were not prosecuted, and that the motive in this case was impermissibe. In a case alleging racial selective prosecution the defendant would have to show similarly situated people of a different race weren't prosecuted. In a case like Mr. D'Souza's the defendant would have to show both that (1) similarly situated people who didn't engage in the protected speech weren't prosecuted, and (2) the decision to prosecute was based on animus towards the protected speech. This is a tremendously difficult standard to meet. How is a defendant supposed to know whether other people have committed the same crime and been passed over by the government, particularly when the government's investigations are secret and when the conduct in question is difficult to detect?

A defendant can demand discovery from the government about whether it has passed over other people who committed the crime. But the Supreme Court has set a high bar for entitlement to such discovery. To force the government to produce statistics and other information about its prosecution decisions, the defendant must produce "some" evidence in support of both prongs of the selective prosecution test — that is, some evidence that others similarly situated are not being prosecuted, and some evidence of improper motive. In U.S. v. Armstrong in 1996, the Supreme Court held that it was not enough that defense lawyers in Los Angeles showed that the defendants in federal crack cocaine cases were almost all African-American; to get discovery they also had to supply some evidence that the feds were passing over white defendants.

In short, a mere suspicious appearance — like the indictment of a vigorous critic of the administration — is not enough to show unconstitutionally selective prosecution. D'Souza's attorneys should certainly explore the issue, but it will not be an easy motion to win. The system only nominally protects rights; for the most part the system protects the system.

Update: The Quantum of Recovery For Rape-and-Torture-By-Police In New Mexico Is $1.6 Million

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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?

Roger Shuler Convicted of Resisting Arrest, Remains In Custody for Contempt of Prior Restraint Order

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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.3

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.4

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.