Archive for the ‘Law Enforcement’ Category

Myth #3: “I was Entrapped!”

Thursday, October 20th, 2011

So you were hanging out with your buddy Joe, a guy who buys weed off you every now and then. Joe tells you he knows a guy who’s looking to buy more than Joe usually gets, and offers to introduce you. One thing leads to another, and soon you’re making a big sale to this new guy. As soon as everything changes hands, you’re cuffed and arrested. Turns out your buddy Joe was an undercover all along. He set you up! A cop! That’s entrapment, right?

Or maybe you were a out on a call, meeting another poor schlub at his hotel room to trade a little physical pleasure for a little cash. As is your practice, you make sure to confirm he’s not a cop first. He says no, you discuss what he’d like to do and for how much, and now you’re in handcuffs. What the hell? He lied to you! A cop! That’s entrapment, right?

Or maybe you were out protesting the latest outrage du jour, and you and your buddies decide to move the protest to a major thoroughfare at rush hour. The cops don’t stop you until you’re there, and then they arrest you. They let you do it! The cops! That’s entrapment, right?

Nope, nope, and nope.

Entrapment is not what most people think. It’s not when the police conspired with you to commit the crime. It’s not when your decision to go ahead with the crime was based on a police lie. And it’s not when the police didn’t stop you from committing the crime.

The police helping you commit a crime is not entrapment. Entrapment is when the police made you commit the crime, when you wouldn’t have done so otherwise.

Entrapment is when you would not have committed the crime, period, if the police hadn’t made you do it. If you’d never sold drugs in your life, but the undercover begged you for weeks to do the deal to save him from being killed by his supplier… maybe that’s entrapment. If you were not going to that hotel room as a prostitute, but for a purely social encounter, and the cop gave you money you’d never asked for… that’s probably entrapment. And if the cops out-and-out told you and your fellow protesters to go onto that street, and then arrested you for doing what they told you… that’s entrapment.

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Different states deal with this differently. Some look at your (more…)

Tarnished Justice: Cops Meet Their Quotas, Even When Crime is Down

Thursday, October 13th, 2011

If you belong to a certain population, who cares if you get arrested for no reason? Certainly not certain parts of the NYPD, according to former detective Stephen Anderson. If there’s an arrest that needs to be made, and you don’t have a guilty person to arrest, you just “arrest the bodies to it — they’re going to be out of jail tomorrow anyway, nothing is going to happen to them anyway.”

It’s an attitude that is all too prevalent in law enforcement, one that is far too easy to fall into: It’s just no big deal.

Except it is a big deal.

Here’s what happens to you when narcotics officers arrest you for no good reason: You’re forcibly kidnapped, usually in public, in some of the most shaming circumstances imaginable. You’re hauled off in handcuffs, which fucking hurt. You’re fingerprinted, and a rap sheet is created, and unless you are very lucky the fact of this arrest will be part of your official record for the rest of your life. You’re charged with a crime, perhaps a felony. To support the charge, officers like Anderson will provide some real drugs and say they found them on you. Maybe they’ll sit around and try to come up with an incriminating statement they’ll say you “blurted out” on the scene. Faced with overwhelming evidence, you may (more…)

Answering Your Most Pressing Questions

Saturday, July 16th, 2011
Real nice, Google.

Because we were bored out of our skull this afternoon, we checked this blog’s stats on Google Analytics.  Browsing through the various keywords people have used to find this blog over the past year, all we can say is “The hell is wrong with you people?”

Leaving aside the freaks and weirdos (and possibly some of their clients), however, it seems that most people find this blog by asking Google the same handful of questions.  The number one search engine query that get people here, every month this year, is something along the lines of “why become a lawyer.”  Number two includes variations on a theme of “can a cop lie about whether he’s a cop.”  The top five are rounded out by queries about what crimes Goldman Sachs may have committed, connections between Adam Smith and insider trading, and what one should say to a judge at sentencing.

We’re not sure that we’ve actually discussed all of these topics here.  Then again, we might have, and just forgot it (which is a distinct possibility — these posts are all written in a single pass, without any real editing, and usually are not given another thought once they’re posted.  If you ever wondered what “ephemera” meant, you’re looking at it right now.)

Still, in the interests of alleviating our boredom public service, here are some quick answers to our readers’ most pressing questions:

1. Why Should You Become a Lawyer?

Because you feel a calling to serve others.  Because you want to make a difference in the lives of others.  Because you are genuinely interested in the rules by which human society functions, why people behave the way they do, and the policies and interests underlying it all.  If those are your reasons, then you belong.

Not because you want to (more…)

Manhattan D.A. has problems. This may be why.

Saturday, July 2nd, 2011

This morning’s WSJ has a short article with a long headline, “Manhattan DA Is Put on Defensive: Vance’s about-face on bail in sexual-assault case follows two high-profile court defeats for office.”  The blurb from the website’s front page summarizes the story pithily: “The newly surfaced problems in the sexual-assault prosecution against Strauss-Kahn represent the latest of several recent high-profile setbacks for Manhattan District Attorney Cyrus Vance Jr.”

We’re a proud alum of the office, but lately the office has had a different vibe, one that make us less proud.  Outside the investigative division, which so far as we can tell has remained as professional as ever, there seems to be a distinct shift away from the higher standards of the Morgenthau office towards those of lesser offices.  Although it hasn’t gone quote the way of, say, Nassau County, the change has been clearly noticeable.

In this morning’s article, the DA’s spokeperson tried to defend the office’s handling of the Strauss-Kahn case.  In doing so, she made a key statement that seems to explain what’s going wrong:

“At every step of the way, the district attorney’s office made the right decisions. We pursued an account of a sexual assault that was corroborated by witnesses, electronic evidence and DNA evidence. That evidence was more than enough to present to a grand jury, which indicted the defendant. After the indictment, the district attorney made clear that the investigation would continue and prosecutors would take the case wherever the facts led. Today, we did just that.”

This is a defense?  Cy, if you’re reading this, that statement is an indictment of your office, not a defense.

First of all, if you only have enough evidence for an indictment, you don’t seek an indictment.  We were trained not to write up a case unless it was one we were confident we could prove beyond a reasonable doubt at trial.  The evidence sufficient to obtain an indictment is laughingly slim — one only needs to convince a bare majority of the grand jury that it’s probably more likely than not that the crime could have happened, on the barest evidence that has not been tested or challenged in any way.  If the best you can say of your evidence is that is is “enough to present to a grand jury,” then you need to keep investigating.

Second, “after the indictment, the district attorney made clear that the investigation would continue and prosecutors would take the case wherever the facts led?” Are you shitting us?  You mean you sought an indictment before you’d even completed your investigation?  That’s the kind of amateurish, shoot-first-and-ask-questions-later approach we’ve come to expect of the embarrassingly bad DA’s offices.  It’s not what the Manhattan DA’s office is supposed to do.  No, you’re supposed to complete your investigation first, and only then seek an indictment.  You don’t go to the grand jury until (1) the investigation is complete, (2) the investigation has convinced you that the suspect is guilty and that you can prove this guilt beyond a reasonable doubt at trial, and (3) you’ve made a policy determination that prosecution is the right thing to do in this case.  Ideally, but not required, one also (4) presents the opportunity for a pre-indictment plea, which in our experience often leads to discussions that can shut down a misguided prosecution before it’s gone too far.

We’ve certainly seen more of this reckless prosecution lately, and it’s never been to the credit of the office.  Each time, it’s only made the office look worse.  And we’re not the only ones noticing.  When we speak with other defense colleagues about this, almost all are in agreement that this change under Vance has only damaged the office’s reputation.

It’s a shame for the office, of which we would like to remain proud.  It’s a shame for Vance, whom we genuinely like and want to see succeed.  But it’s worse than shameful to shoot from the hip like this, trying to score points at the expense of the lives of real people.

Even Worse than Eyewitness IDs: The Police Sketch

Wednesday, June 29th, 2011

Everyone knows that eyewitness identifications are completely reliable — that is, you can count on them to be wrong.  (Everyone does know this, right?)  If the person being identified is a stranger, the chances of a correct I.D. are slim to none.  There are lots of reasons for this.  Eyewitnesses rarely have or take the time to study and memorize a person’s features.  People of one race are awful at identifying people of another race, largely because the parts of the face which differ from person to person are different from race to race — which is why people of another race often “all look alike,” because you’re looking for cues in parts of the face that don’t vary much in that other race.  And people just generally suck at remembering details consistently and accurately.

Still, sometimes an eyewitness description is all you’ve got.  And so what if the eyewitness didn’t see every detail of the face — at least they can describe the parts they did see.  Trained sketch artists take the partial descriptions provided by eyewitnesses, and using sophisticated software they can put together composite sketches that show what the bad guy probably looks like.

We’ve all seen them on the TV news, and various crime dramas would lead one to believe that they’re pretty useful.  And now with IdentiKit software, the details can be adjusted here and there until the witness goes “that’s him!”

But we never hear, after the fact, whether the drawing wound up being all that accurate.  There’s a good reason for this.  The odds of the drawing being accurate are so low, they are below statistical significance.  You’ve probably noticed this yourself, on the rare occasion when a police sketch has later been released with a photo of the culprit — the resemblance even then is usually pretty slim.

A thorough study of composite sketches by Charlie Frowd, of the University of Stirling in Scotland, had participants study a photograph of an individual for a full minute, then describe the face for a trained police sketch artist.  How well could people then recognize the faces in these sketches?  The recognition rate was as low as 3%.

Three percent.

MIT scientists Pawan Sinha, Benjamin Balas, Yuri Ortrovsky and Richard Russell have a great article here that describes problems with composite sketches and ways to make the software better.

The image above was taken from that article.  A trained and experienced IdentiKit officer was given actual photographs of celebrities with distinctly recognizable faces.  He was given all the time in the world — no pressures — and worked directly from the photos themselves instead of having to rely on another person’s descriptions.  And those sketches you see up there are the best the software could do.

Well, maybe the problem is with what the IdentiKit tries to do.  After all, it just works on individual features one at a time.  The eyes, nose, mouth, etc. are worked on in isolation.  Humans don’t look at features in isolation, though.  So there’s another kit out there called EvoFit, that’s more like a photo array that gets to evolve.  The witness is shown 72 random faces.  She picks out the six that most resemble the culprit.  The facial features of those six are then scrambled and recombined to make 72 new pictures.  The witness then picks out, again, the six who most resemble the culprit.  The process is repeated once more to get an image that pretty much matches what the witness saw in her mind.

Now, there are tons of problems with this method.  The suggestivity of showing pictures is pronounced — when witnesses choose photos from an array, they often choose not the one that closest resembles the culprit, but instead pick the one that looks different from the rest — and when a picture has been chosen, that image often replaces the image in the witness’ memory.  She now remembers that face as being the face of her attacker, even though it wasn’t.  This method of scrambling digital faces poses the same problems.

Still, it is more reliable than the IdentiKit.  Instead of a 3% recognition rate, the EvoKit attains a whopping 25% recognition rate.

One in four.

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People suck at identifying strangers.  Period.  And yet in-court eyewitness identifications are the nuclear bombs of trial.  The victim points at the defendant and says he’s the one what done it, and you can see the jurors’ minds turning off.  So far as they’re concerned, this trial’s over.  The defense lawyer’s got a lot of work to do, now, to overcome that.

What would be just and fair, of course, would be to allow some evidence of the unreliability of eyewitness identifications in general, and the reasons why IDs can be wrong, so that the defense can tie them to specific testimony by the eyewitness to show that she made the same mistakes.  Not asking the jury to make a logical fallacy that, because it happens a lot in general, it must have happened here as well.  But actually drawing the jury’s attention to specific reasons why this particular testimony is not trustworthy, supported by expert testimony on the unreliability of IDs.

Don’t hold your breath waiting for that to happen, though.

Profiling Doesn’t Work? More Profiling!

Saturday, April 23rd, 2011

When we were just starting out in the law, we frankly had no problem with the concept of profiling.  Not racial profiling — that’s just a logical absurdity along the lines of “most people who commit crime X are of race Y, therefore it’s reasonable to suspect people of race Y of committing crime X.”  We’re talking about profiling as the concept that a significant number of people who commit crime X exhibit the combination of traits A, B and C, which is a combination rarely encountered otherwise, and therefore if one were to look for people exhibiting traits A, B and C, then one might have a better chance of catching someone guilty of crime X.

Intuitively, this sounds reasonable.  If we were to know, for example, that certain serial arsonists are motivated by a sexual mania, that these arsonists tend to remain near the scene to masturbate or so they can masturbate to the memory later, that they tend to have spotty work and relationship histories, and that they tend to have crappy cars — well then, there’s nothing wrong in letting the cops scan the crowd of spectators at a fire, question any who seem to be getting a kick out of it, and investigate those who are single, unemployed, and drive a beater.  (This is an actual profile, by the way.  We didn’t make this up.)

And emotionally, profiling sounds wonderful.  Catching a psychopath is often difficult, because they don’t play by the same rules as the rest of us.  Wouldn’t it be nice if there were some, er, rules that we could follow — a formula of some kind — that would make it easier to identify and catch them?

As we said, in our early years we thought this was a great concept.  Whenever we encountered some findings that certain traits had been identified with this type of serial killer, or that type of terrorist, we thought it was fantastic.  But we didn’t think too critically about it.  And for sure we never bothered to look for the underlying data, much less examine the methodology used to determine how strongly these traits correlated with perpetrators of that crime.

The problem is, nobody else was doing that, either.

Profiling only works if the profile is accurate.  That should go without saying.  But it has become plain over the years that the various profiles out there are not accurate.  They are not based on actual data, but instead only on anecdotes.  (And as we like to say, the plural of “anecdote” is not “data.”)  Nor are these profiles based on any significant sample size.  No profiling study ever did even a simple regression analysis to determine whether any particular trait happens to be a meaningful variable.

We figured this out soon enough, of course.  After our first couple of years with the DA’s office, we were already joking about the silliness of profiles.  It was almost a party game to figure out which psychopathic profile we and our friends happened to fit (secure in the knowledge that hardly any of us were really psychopaths).

And the rest of the world soon caught on.  The Onion did a piece entitled “Crime Reporter Finds Way of Linking Warehouse Fire to Depraved Sex Act.”  Malcolm Gladwell wrote an outstanding piece in 2007 called “Dangerous Minds: Criminal Profiling Made Easy,” in which he solidly debunked the whole profiling scam, showing how there’s no science or statistics behind it, and even the data it’s based on is mostly useless.

It’s now fairly common knowledge that criminal profiling is about as useful as a Tarot deck.  So of course the FBI has stopped using it, right?

-=-=-=-=-

Wrong.

As a matter of fact, they’re expanding!  Just as the feds have (disastrously) tried to use street-crime investigative techniques like wiretaps to go after white-collar offenders, they are now (equally idiotically) starting to use criminal profiling to go after people for white-collar offenses.

Matthew Goldstein wrote an excellent piece on this for Reuters this week, called “From Hannibal Lecter to Bernie Madoff: FBI profilers famous for tracking serial killers are turning their attention to white collar felons.”  This (and the Gladwell piece linked to above) should be required reading for any white-collar defense lawyer now practicing.  When the Galleon case first came down, we were one of a handful of people doing white-collar defense who also had plenty of wiretap experience; now, of course, more of us are learning it the hard way.  Hopefully, with this new profiling issue, more of us will be prepared to deal with it ahead of time.  (And perhaps even nip it in the bud.  Like Barney Fife, we’re a big fan of bud-nipping.)

The agents in the FBI’s Behavioral Analysis Unit are the ones who profile serial killers and the like.  “The hope is,” reports Goldstein, that they “can get into the minds of fraudsters and see what makes them tick.”

“This originally started out as an attempt to find a way to prevent and detect Ponzi schemes,” said Peter Grupe, the FBI’s assistant special agent in New York in charge of white collar investigations.  “But it developed into (more…)

An Unnecessary Rule: FBI Memo on Mirandizing Terror Suspects is a Waste of Paper

Saturday, March 26th, 2011

So on Thursday the WSJ reported that the Obama administration has changed the rules of investigating terror suspects, to permit interrogation without Miranda warnings in certain circumstances:

A Federal Bureau of Investigation memorandum reviewed by The Wall Street Journal says the policy applies to “exceptional cases” where investigators “conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat.” Such action would need prior approval from FBI supervisors and Justice Department lawyers, according to the memo, which was issued in December but not made public.

We made a few notes, hoping to get a minute to blog on the issue.  It just struck us as a stupid and unnecessary thing to do, if prevention of terrorist acts is the goal.  Miranda is just a protection affecting evidence that can be used at the trial of the person being interrogated.  That has to do with evidence of past crimes; it’s irrelevant to the prevention of future acts.  And if the goal is to gather evidence for a criminal trial, then it’s just unconstitutional.  It’s stupid no matter which way you look at it.  But our current never-ending trial is demanding pretty much every waking moment, and nothing got written.

Then yesterday the NYT published the text of the October 2010 FBI memo.  The relevant paragraph provides that:

There may be exceptional cases in which, although all relevant public safety questions have been asked, agents nonetheless conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat, and that the government’s interest in obtaining this intelligence outweighs the disadvantages of proceeding with unwarned interrogation. [4] In these instances, agents should seek SAC approval to proceed with unwarned interrogation after the public safety questioning is concluded. Whenever feasible, the SAC will consult with FBI-HQ (including OGC) and Department of Justice attorneys before granting approval. Presentment of an arrestee may not be delayed simply to continue the interrogation, unless the defendant has timely waived prompt presentment.

At the words “prompt presentment,” we (figuratively) slapped our forehead.  It all came back to us.  In May 2010, when the Obama administration first floated the idea, (more…)

Study Finds Rampant Prosecutorial Misconduct in California

Wednesday, December 1st, 2010

The Northern California Innocence Project at Santa Clara University School of Law has released a troubling study of prosecutorial misconduct in California.  The report, “Preventable Error: A Report on Prosecutorial Misconduct in California 1997-2009,” opens by pointing out that of course the majority of prosecutors behave ethically, but then it dives right into more than a hundred pages of statistics and analysis of a systemic and system-wide crisis, and the ineffectual attempts to deal with it.  (For those in a hurry, the 8-page executive summary is here.)

The period of this study coincides with our own career — we got our JD in ’97, and spent the next several years prosecuting before joining the side of the angels.  We were intrigued to see if the results of the California study meshed with our experiences in New York.  (The overwhelming majority of our colleagues at the Manhattan DA’s office were extremely ethical and took such things seriously, but we did have occasion to note and object to certain practices.  On the defense side, dealing with all kinds of state and federal offices, we’ve seen more sloppiness and lack of judgment than actual misconduct, though again there has been the occasional bad act.)

The study reviewed a sample of 4,000 cases during that 12-year span, where an appellate court was asked to make a finding of prosecutorial misconduct — the most in-depth such study anywhere, ever — and found 707 where a court decided there really had been misconduct.  As the summary puts it, that’s about a case a week.  When you consider the simple fact that only the rarest case of prosecutorial misconduct gets appealed — only about 3% of cases even go to trial — plus the fact that a great deal of such misconduct can never be discovered by the defense (such as Brady violations), the true quantity of misconduct must necessarily be a dramatic multiple of the study data.

Most of the prosecutors who commit misconduct, the study found, do so repeatedly.  Why?  Because they get away with it.  They almost never get caught.  And when they do get caught, there aren’t any personal repercussions.  Disciplinary action is so rare as to be practically unheard of.  And civil liability isn’t going to happen, because they have absolute immunity for their official conduct.

The study concludes that “the scope and persistence of the problem is alarming.  Reform is critical.”  It’s not a problem just of a few rogue prosecutors.  It’s a problem of the judges who don’t deal with it, a system that doesn’t deter it, offices that don’t stop it.  It’s the problem of the good prosecutors, whose authority and trust suffer by association.  It’s the problem of the innocent, who find themselves convicted time and again because the prosecutor sought a victory rather than justice.  It’s the problem of the guilty, who are denied their rights to due process and constitutional protections.  And it’s the problem of the criminal justice system, which relies entirely on prosecutors doing their job right in order for the system to function at all.

What reforms do they suggest?  Revised ethical rules, for one, to bring them more in line with the ABA’s model rules.  Some actual disciplinary action by the state bar, when the rules are broken.  Replacing absolute immunity with immunity only for official conduct that wasn’t misconduct.  Better reporting of misconduct findings, including the prosecutor’s name and the kind of violation.  Better ethical training for prosecutors, and internal procedures for preventing and dealing with misconduct.  It’s all pretty much common-sense stuff, already in practice in plenty of states.

It’s a shocking report.  The players in California’s criminal justice system need to get their act together, and fast.  This is a wakeup call — let’s hope they heard it.

They’re Not on Your Side

Wednesday, November 17th, 2010

When we were kids, the police were the good guys.  They were who you could turn to if you got lost.  They were the ones who protected us from the bad guys.  They were on our side.

When we were kids, of course, we learned a simplified version of reality.  All the “lies we tell children” because the truth is too complex, or because it’s the way we’d like them to think.  The problem is that lots of us grow up without ever learning the “reality” version of reality.  The results can be tragic.

Because the police are not on our side.  And woe betide the honest citizen who acts like they are.  It’s not that the police are bad.  The vast majority are good, decent folks.  It’s that the police see the world in “us against them” terms.  And we good honest citizens are part of the “them.”

We all know that being a police officer can be dangerous.  When a cop pulls you over, or encounters you on the street, he has no way of knowing whether you’re going to be that one wack-job who pulls a gun or a knife on him.  It happens.  Because the world contains wack-jobs, thugs and the like, we are all potential threats.

But that’s not the half of it.  For a while now, the police have felt embattled.  They’re constantly criticized for violating civil rights.  They’re hamstrung by “technicalities” that make it harder for them to do their job.  Politicians, protestors and the proletariat are constantly pointing fingers at the police.  We civilians are a spoiled, ungrateful bunch.

And hence, the “thin blue line.”  From a police perspective, it’s an us-against-them world, and if you’re not in law enforcement then you’re on the other side.

Now a police officer cannot help but notice that there are only a few of “us,” and a heck of a lot of “them.”  The only thing protecting the police is a perception of their authority.  If the public loses that perception, the police lose their power.  So they desperately need us to respect their authoritah.  Any sign of insubordination must be dealt with right away.

It’s a neurotic worldview.  It’s a perfectly rational reaction, but that doesn’t make it any less paranoid.

And of course their job is not “to protect and serve” — at least not in their eyes.  Their job is to (more…)

Decent, law-abiding citizen? Go directly to jail.

Saturday, October 30th, 2010

 

Odds are, if you’re reading this, you’ve lived an admirable life.  You applied yourself in school, got a good job, and worked hard to be a valuable member of your community.  Through your own efforts, you’ve probably earned a position of respect and responsibility.  Maybe you run your own shop, or you’re a partner in a firm, or you’re a military officer.  Your ethics are beyond reproach.  You’re raising your kids to be loyal, kind and brave.  You, dear reader, are doing everything right.

And you, dear reader, can very easily find yourself in the defendant’s seat.  In the crosshairs of a federal or state prosecution.  Facing serious prison time.

For what?  For nothing, that’s what.  You yourself may have done nothing wrong, but our criminal law has devolved so far, so fast, that you can find yourself being prosecuted anyway.

The worst effects can be seen in federal law.  As the regulatory state has expanded, as the “nanny state” has expanded, as the role of the federal government has expanded, the nature of federal criminal law has changed dramatically.  Stuff that nobody in their right mind would consider “criminal” has nevertheless been made into a federal crime, not just by congressional statute, but by regulatory fiat.

Regulatory crimes are the worst, because agency regulations are never (more…)

On the Manhattan DA’s New Public Integrity Unit

Friday, October 22nd, 2010

 

As we were coming out of court the other afternoon, we got a call from one of the nice folks over at the WSJ, asking us what we thought about the Manhattan DA’s new Public Integrity unit.  We didn’t even know it had been formed — though we had heard Vance talk about the idea on the campaign trail.  The soon-to-be new DA had talked of ideas for a variety of new units, some of which we thought were good ideas (like the Wrongful Convictions unit, which would create office-wide policies while also investigating innocence claims), and some of which we thought were more public-relations than practical (like the Public Integrity unit).

As proposed by Vance, we said to the reporter, the Public Integrity unit didn’t really seem necessary.  It was to be a sub-unit of the Rackets Bureau, which has already been investigating and prosecuting public corruption cases with a fair amount of success for many years.  Carving out a specialty unit isn’t going to increase the number of cases they get, or improve their success rate, or have any extra effect on corruption beyond the usual.  It’s not like this is an area of crime that was being ignored.  Far from it.

It’s not going to increase the number of cases coming in, because that has nothing to do with whether there’s a special unit or not.  Public corruption cases are hard to come by, because usually the only people who know about the bribery are the ones benefiting from it.  And they’re not likely to self-report.  The DOI does what it can with the resources it’s got to ferret out a case here and there, but the reality is that (for the most part) law enforcement sort of lucks into these cases.

If you want to have an effect on public corruption, the trick is to either get magical surveillance powers to spot all the bribes going on, or else (more…)

Police Allowed Into Home, Shoot Dog and Unarmed Suspect

Thursday, October 14th, 2010

When the police ask if they can come in, SAY NO.  It doesn’t always end as badly as this, but it almost always ends badly.

When the police (or investigators from a regulatory agency, or any enforcement types) ask you questions, SAY NOTHING.  You don’t have to talk to them, and it can end badly.

If the cops are getting physical, DON’T FIGHT THEM.  You will always lose, and it’s just something else to charge you with.

Not blaming the victim here, but don’t let it happen to you.

For more useful advice — for law-abiding citizens just as much if not more than others — see this fine video called 10 Rules for Dealing with Police:

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Credit goes to the partner, btw, who’s probably looking at a helluva lot of harassment for breaking the wall of silence.  Breaking the golden rule that Thou Shalt Not Speak Ill Of Another Cop is not a career-advancing move.

“This offer is only good today.”

Thursday, September 30th, 2010

Another good post by Mark Bennett today over at his blog “Defending People,” entitled “Today Only?”  He recounts the plea-bargaining tactic some prosecutors use, attempting to force a plea by saying the offer is only good that one day, and won’t be offered again.

Did the words mean what they purported to, or was this just part of the ritual?  Put in practical terms, what does the criminal defense lawyer tell his client when the client asks if he can have some time to think about the plea offer?

Chances are good that the same factors that led the prosecutor to make the offer today will still exist when the case comes back to court….  There might be a reason that making the same offer at the next setting would interfere with these goals (chief isn’t here today, will be then and will nix the deal; case at a point where ADA has to get it pled or do some actual work).  If so, the prosecutor will generally identify the reason; the defense lawyer then has to decide whether the prosecutor’s assessment is correct, or whether the plea offer is likely to remain the same (or, as usually happens, get better).  Without a plausible reason for the offer to get worse, though, “today only” in the courtroom means what it means in the bazaar: it’s part of the ritual.

Over at Simple Justice, Scott Greenfield added that

Negotiating pleas isn’t for the squeamish, and if someone can bulldoze you into a plea by using the “today only” ploy, chances are you don’t have the guts for this work.  On the other hand, know your adversary, including the judge.  With some people, “today only” means exactly that, and they will cut off their nose to spite their face just to keep their word.

It’s not a job for the gutless, but better to know up front whether the person making the pitch is going to live with the consequences.  If you don’t know, it will be your client living with the consequences, whether they want to or not.

In my* experience, a “today only” ultimatum is a sign of either resignation or desperation.  It’s made in the hope that it will be taken, and the case will go away.  Maybe the prosecutor is just sick of it and doesn’t want to spend more time on it, or maybe the prosecutor is afraid of having to go to trial on it.  It’s rarely made out of sheer altruism.

The kind of prosecutor who would make a “today only” offer is usually the kind who will drop down from the offer again later on.  Backsliding is a real possibility next time, the time after that, and on the eve of (more…)

Tape Away – Maryland judge rules that cops have no expectation of privacy during traffic stops

Tuesday, September 28th, 2010

You’ve probably all seen the video by now of the motorcyclist recording himself speeding down a Maryland road, only to get pulled over by a plainclothes cop who leaps out brandishing a gun and otherwise behaving inappropriately.  And you’ve probably heard how the motorcyclist is now facing trial on charges of illegal wiretapping, for the recording of the officer.

The case has become the most visible in a rising tide of police backlash against citizens videotaping them while they abuse their authority.  We wrote on this (and the reasons why the police are losing respect) here.

Well now Judge Emory Pitt has thrown out the charges against the motorcyclist, ruling that police and others who exercise their authority in public “should not expect our actions to be shielded from public observation.”  You can read the Baltimore Sun article here.

Although this isn’t controlling precedent for any other courthouse, the ruling makes perfect sense. A police officer — or anyone else, for that matter, who is doing something in the open in as public a place as a freeway — would be an idiot not to expect that others are going to see what he’s doing. If it’s freely observable by the general public, then what possible expectation can there be that it’s private?

The same goes for cops who get taped beating people in a plaza, tasing people in an auditorium, or even just being dicks at a demonstration. The public is watching. So there’s no reason why the rest of the public shouldn’t be allowed to see it as well.

As Balthasar Gracián wrote in 1647, “always behave as though others were watching.” Good advice. Perhaps soon the police will begin taking it to heart.

A Pattern of Misconduct by Federal Prosecutors?

Thursday, September 23rd, 2010

When we left the Manhattan DA’s office some years ago, we firmly believed that prosecutorial misconduct was as rare as it was despicable.  We can’t think of a single one of our colleagues for whom it would have even occurred to cut corners, and it certainly would not have been tolerated by the bosses.  Everyone was just… decent.  The culture wasn’t so much a dogfight as a collegial, practically patrician, management of cases.  Admittedly, we didn’t have much contact with prosecutors from other offices, but surely they couldn’t have been that different.  We all had the same job, to seek justice rather than mere convictions.  And as for federal prosecutors… well, they were just like us, right?  If anything, their culture was even more collegial, and even less likely to result in (ick) prosecutorial misconduct.

As any reader of this blog can tell, we’ve been disillusioned by the reality that prosecutorial misconduct is not only more common than we would have believed, but that it is committed with disturbing frequency by federal prosecutors.  A couple of years ago, we were disquieted by what was going on in the Ted Stevens fiasco.  A year and a half ago, we saw that Judge Posner had to direct an acquittal in a case where the feds made fraudulent misrepresentations, and we wrote that we hoped this wasn’t becoming a trend.  A couple more instances later, we were asking what the heck was going on.  The pattern has only continued since then.  (Here’s a roundup link to our posts tagged for “prosecutorial misconduct.”)

So this morning we were sadly not surprised to read (in USA Today, of all places) a lengthy discussion of the growing problem of prosecutorial misconduct by federal prosecutors.  You can read the whole thing here.

What’s going on?  The article posits that (more…)