Tagged: Criminal Justice

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Darren Wilson and the Benefit of Doubt

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The United States Department of Justice has released a prosecution memo explaining how it decided not to bring federal charges against Ferguson Police Department Officer Darren Wilson for shooting Michael Brown.

The report is 86 pages long, with 28 footnotes. The report's summary of relevant federal law — what charges are available, what it would have to prove to convict Officer Wilson, and the landscape of use-of-force law — appears correct. I can't evaluate whether the Department has misrepresented what witnesses said or the circumstances of their statements, but the report's evaluation of the credibility of witnesses is convincing: it is based on inconsistencies in statements, inconsistencies with scientific analysis of physical evidence, and other factors that I would use as a defense attorney to attack a prosecution witness. The Department's conclusion that it can't prove guilt beyond a reasonable doubt is likely correct. Its conclusion that there is no credible evidence supporting prosecution, because there is no credible evidence contradicting Officer Wilson's account, is arguable.

Were I still a federal prosecutor, I wouldn't recommend prosecuting the case, and were I Wilson's defense lawyer, I would like my chances much better than the prosecution's chances. I don't disagree with the factual or legal analysis. But I find it remarkable, both as a former prosecutor and as someone who has practiced criminal defense for 15 years.

I find it remarkable because most potential prosecutions don't get this sort of analysis. Most investigations don't involve rigorous examination of the credibility of the prosecution's witnesses. Most investigations don't involve painstaking consideration of the defendant's potential defenses. Often investigators don't even talk to potential defense witnesses, and if they do, don't follow up on leads they offer. Most investigations don't carefully weigh potentially incriminating and potentially exculpatory scientific evidence. If an explanation of the flaws in a case requires footnotes, you shouldn't expect it to deter prosecution.

Instead, I'm more used to the prosecution assuming their witnesses are truthful, even if they are proven liars. I'm more used to contrary evidence being cynically disregarded. I'm more used to participants in the system stubbornly presuming guilt to the bitter end. I'm more used to prosecutors disregarding potentially exculpatory evidence that they think isn't "material." I'm more used to the criminal justice system ignoring exculpatory science and clinging to inculpatory junk science like an anti-vaxxer.

Why is this case different? It's different because Darren Wilson is a cop. Cops get special rights and privileges and breaks the rest of us don't. Cops get an extremely generous and lenient benefit of the doubt from juries. Nearly every segment of the criminal justice system operates to treat cops more favorably than the rest of us.

The Department of Justice report didn't say "we can't prove this beyond a reasonable doubt, particularly because juries defer to cops." It didn't need to. It's understood. The Department of Justice also didn't have to worry about being called out for inconsistent approaches to other reports. That's because when you're a black guy who shoots a white law enforcement officer in self-defense, they don't write an 86-page memo with 28 footnotes about it. They just prosecute you.

It's not unjust that Darren Wilson gets the benefit of the doubt. It's unjust that nearly everyone else doesn't.

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A Few Comments on the David Petraeus Plea Deal: What Money And Connections Buy You

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David Petraeus, who suffered a fall worthy of a Greek tragedy when was caught leaking classified information to his biographer-girlfriend, has reached a plea deal with the feds, in the person of the U.S. Attorney's Office for the Western District of North Carolina.

As of now two documents are available online. There's the Information, which is the charging document the feds use when grand jury indictment is not required or when the defendant waives that right. There's also the factual basis — the narrative of facts to which Petraeus will admit. These documents reveal that Petraeus has agreed, in advance of charges being filed, to take a misdemeanor.

Generally, poor people react and rich people are proactive. Petraeus is sophisticated and has assets; he could afford to hire lawyers to negotiate with the feds before they charged him. As a result, he was able to secure a pretty good outcome that controlled his risks. The feds let him plead, pre-indictment, to a misdemeanor charge of improper removal and retention of classified documents under 18 USC section 1924. That means even if the federal judge who sentences him goes on a rampage, he can't get more than a year in federal prison — and, given that it's a misdemeanor, will very likely get far less. The Factual Basis includes a United States Sentencing Guideline calculation in which the government and Petraeus agree he winds up at an Adjusted Offense Level of 8, which means the judge can give him straight probation.

It is very difficult to get a misdemeanor out of the feds.

Petraeus' factual basis reveals that he could have been charged with much, much worse. The statement discusses his "Black Books" containing his schedules and notes during his command in Afghanistan; those books contained "national defense information, including Top Secret/SCI code word information." (Factual Basis at paragraphs 17-18.) Petraeus, after acknowledging that "there's code word stuff in there," gave the Black Books to his biographer/girlfriend at her private residence. "The DC Private Residence was not approved for the storage of classified information," the statement notes dryly. (Factual Basis at paragraphs 22-25.) He retrieved the Black Books a few days later after she had been able to examine them, and retained them. Thereafter, when he resigned from the CIA, he signed a certification that he had no classified material in his possession, even though he had the Black Books. (Factual Basis at paragraph 27.) Later, when Petraeus consented to interviews with FBI agents1 he lied to them and told them that he had never provided classified information to his biographer/girlfriend. (Factual Basis at paragraph 32.)

To federal prosecutors, that last paragraph of facts is like "Free Handjob And iPad Day" at Walt Disney World. First, you've got the repeated false statements to the government, each of which is going to generate its own charge under 18 U.S.C. 1001, which makes it illegal for you to lie to your government no matter how much your government lies to you. Then you've got the deliberate leaking of top secret/code word defense data to a biographer. An aggressive prosecutor might charge a felony under 18 U.S.C. section 793 (covering willful disclosure of national defense information) or 18 U.S.C. section 798 (covering disclosure of classified communications intelligence materials or information derived therefrom), both of which have ten-year maximum penalties. Those charges don't seem to require any intent to harm the U.S. — only disclosure of information which could harm the U.S. if distributed. Other than that? You better believe there would be a conspiracy count for Petraeus' interaction with his girlfriend.

If Petraeus were some no-name sad-sack with an underwater mortgage and no connections and no assets to hire lawyers pre-indictment, he'd almost certainly get charged a lot more aggressively than he has been. This administration has been extremely vigorous in prosecuting leakers and threatening the press.

So why is Petraeus getting off with a misdemeanor and a probable probationary sentence? Two reasons: money and power. Money lets you hire attorneys to negotiate with the feds pre-charge, to get the optimal result. Power — whether in the form of actual authority or connections to people with authority — gets you special consideration and the soft, furry side of prosecutorial discretion.

This is colloquially known as justice.

Edited to add: Since I wrote this the actual plea agreement has become available. The most notable part:

8. The United States agrees not to oppose the defendant's request that the defendant receive a non-custodial sentence.

9. The parties jointly recommend the imposition of a two-year term of probation.

So, for those of your keeping score at home: Commander of U.S. Forces in a war zone provides classified documents to his biographer/lover? Misdo, two years probation. 25-year-old small-time musician sells half a pound of pot while carrying a gun? 55 years in federal prison.

Broken Windows And Broken Lives

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The Broken Windows Theory led to an era of aggressive policing of petty offenses — which in turn led to increased confrontation between police and civilians.

The theory depends upon the proposition that tolerating bad conduct, however petty, sets social norms, and that bad conduct steadily escalates to meet those norms.

Second, at the community level, disorder and crime are usually inextricably linked, in a kind of developmental sequence. Social psychologists and police officers tend to agree that if a window in a building is broken and is left unrepaired, all the rest of the windows will soon be broken. This is as true in nice neighborhoods as in rundown ones. Window-breaking does not necessarily occur on a large scale because some areas are inhabited by determined window-breakers whereas others are populated by window-lovers; rather, one unrepaired broken window is a signal that no one cares, and so breaking more windows costs nothing.

Let's take this as true for a moment.

If tolerating broken windows leads to more broken windows and escalating crime, what impact does tolerating police misconduct have?

Under the Broken Windows Theory, what impact could it have but to signal to all police that scorn for rights, unjustified violence, and discrimination are acceptable norms? Under Broken Windows Theory, what could be the result but more scorn, more violence, and more discrimination?

Apparently we've decided that we won't tolerate broken windows any more. But we haven't found the fortitude to do something about broken people. To put it plainly: just as neighborhood thugs could once break windows with impunity, police officers can generally kill with impunity. They can shoot unarmed men and lie about it. They can roll up and execute a child with a toy as casually as one might in Grand Theft Auto. They can bumble around opening doors with their gun hand and kill bystanders, like a character in a dark farce, with little fear of serious consequences. They can choke you to death for getting a little mouthy about selling loose cigarettes. They can shoot you because they aren't clear on who the bad guy is, and they can shoot you because they're terrible shots, and they can shoot you because they saw something that might be a weapon in your hand — something that can be, frankly, any fucking thing at all, including nothing.

What are we doing about this? Are we pushing back against unwarranted uses of force and deprivations of rights, to prevent them from becoming self-perpetuating norms?

No. We're not pursuing the breakers of windows. If anything, we are permitting the system steadily to entrench their protected right to act that way. We give them second and third and fourth chances. We pretend that they have supernatural powers of crime detection even when science shows that's bullshit. We fight desperately to support their word even when they are proven liars. We sneer that "criminals have too many rights," then give the armed representatives of our government stunning levels of procedural protections when they abuse or even kill us.

Do we really believe in Broken Windows Theory? If we do, how can we be surprised at more casual law enforcement racism, more Americans dead at the hands of police, more matter-of-fact violations of our constitutional rights? We left the windows broken. We helped set the norm. They're just following it.

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.

Texas Court Makes Upskirts Mandatory, Outlaws Kittens, Hates Your Mother

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Surely you've heard about this. A Texas court — full of old men, reeking of misogyny — has ruled that taking upskirt photos of unwilling women is free speech protected by the First Amendment!

How ridiculous! How despicable!

I mean, at least — that's what I think happened, based on how the story has been reported and talked about.

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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 robbery2 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.3 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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