Archive for the ‘Violent Crime’ Category

Q&A Dump

Friday, September 6th, 2013

I’m on the road today, but I wanted to post something. So I’m going to cheat and cut-and-paste some recent Q&A posts from my Tumblr. If you’re looking for a longer read, go check out my comic, which just completed a long section involving how the Fourth Amendment plays out during different kinds of car stops.

From today:

I don’t know all the facts, of course, and I’m not a Florida lawyer, but from what I’ve read it seems to me like the defense doesn’t have a winning argument here. It’s not unethical to make a losing argument, and lawyers often feel obligated to make every conceivable argument rather than lose an issue for appeal, or in the hope that something sticks — but it might be better to preserve your credibility with the court by choosing those arguments that at least have a teeny bit of merit.

“Stand your ground” laws say that, if you’re lawfully where you are, and someone is then and there about to kill or severely injure you, then even if you could have gotten away safely you’re allowed to use deadly force to defend yourself.

The “Bush Doctrine” is an application in international law of a basic principle of self-defense: you don’t have to wait for the other guy to hit you first before you defend yourself from the coming blow.

From what I understand of the Woodward case, he felt intimidated by these people, but was not in any immediate danger. Nobody was coming at him. Nobody was presently any threat to him.

Instead, he snuck up on a group of people at a barbecue, crawling on his belly to avoid detection. Then he fired a mess of rounds at them, hitting three and killing two. I don’t know what kind of weapon he had, but if the reported numbers of rounds are accurate, then he must have stopped to reload a few times.

This was not self-defense, because he was not in any actual danger at the time. At best, he was defending against some imagined possible future attack that might never have come. I get that he felt terribly harassed, but that’s not the same thing as an actual imminent attack. A hypothetical future attack is not an imminent one.

It was not stand your ground, because first of all he probably wasn’t lawfully there but was trespassing with intent to commit murder; and second of all because he wasn’t reacting to an attack.

The “Bush Doctrine” is just silly to cite, when there are plenty of self-defense cases to cite involving striking the first blow. But even there, the whole point is you’re about to get hit, and you’re defending yourself by making sure that blow doesn’t land on you.

From what I read, it looks like nothing less than cold-blooded premeditated murder, perhaps under great stress from a history of harassment, but in no way justified by it. Very similar to the “battered wife” scenario in my comic, actually.

—-

Just to make this long answer even longer, here are the playground rules I’ve drilled into my kids since they started school:

1. No matter how angry you get at someone, you’re not allowed to hit them.

2. If someone else is about to hurt you for real, first try to get away.

3. If you can’t get away, try to get a grownup to help you.

4. If you can’t get help, then I want you to hit first, I want you to hit hard, and you’re not allowed to stop hitting them until they can’t hit you any more. Let’s practice some moves.

I guess Woodward’s daddy never taught him that.

==========

From a couple of days ago:

This started out as an offshoot of my law blog, which has a similar disclaimer. It’s pretty standard for lawyers to state that their legal information isn’t legal advice, and just because you read it that doesn’t make you a client.

We’re all stating the obvious when we do that. (And no amount of disclaimer would help if a lawyer actually did give legal advice.) I imagine every lawyer cringes a bit as he types one out. Nobody in their right mind needs to have this explained.

But not everyone is in their right mind, sadly. You hear stories about how every now and then someone didn’t quite get the concept, which can turn into an unpleasant situation. So lawyers hope their disclaimers deter some of those people — and it’s nice to have something in black and white to point out to them.

It hasn’t happened to me, though. Not yet, anyway.

image

Or you could just… you know… try not to get arrested in the first place.

Read them, and not get arrested. Yeah. That might be better.

(Thanks, tho!)

==========

And from a couple days before that:

Yeah… well… not quite.

18 USC 241 & 242 aren’t really about unlawful search and seizure or other stuff dealt with by the exclusionary rule. They’re about police seriously abusing their power. 241 is about conspiring to injure or threaten or intimidate someone, to hinder their civil rights or to retaliate against exercising their rights. 242 is about abusing their power to actually deprive someone of their civil rights.

And the abuse of power has to be really severe. We’re talking about intentionally making up false evidence, intentional false arrests, sexual assaults, and severely excessive force.

What’s being deterred isn’t merely violating the Fourth or Fifth Amendments, but actual criminal conduct. This goes beyond even a civil rights lawsuit. These are not charges that you could bring yourself. They’d have to be filed by a prosecutor.

For a non-federal example of how states deal with it, here’s a story about a Mississippi sheriff who just got indicted the other day for similar conduct.

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Thanks!

That’s really my purpose here — to dispel all the crazy myths and misinformation that are so prevalent out there, and present the straight facts in a format that’s easy for any high school student or adult to understand.

Not that I want anyone to think they have to accept how things really are. Maybe we ought to do some things differently. I like to think I’m helping people at least make informed arguments one way or the other (and I’ll be honest: I get a real thrill whenever I see people link to the comic in their online debates).

And I love getting messages like this. Totally makes my day. Thanks again!

This is FANTASTIC!

(Sounds like your kid has a great parent, by the way.)

Ray Kelly on Stop-and-Frisk: You saved HOW many lives?

Tuesday, July 23rd, 2013

NYC’s Police Commissioner Ray Kelly wrote a piece for today’s WSJ titled “The NYPD: Guilty of Saving 7,383 Lives” and subtitled “Accusations of racial profiling ignore the fact that violent crime overwhelmingly occurs in minority neighborhoods.” In it, he makes a great case for the fact that his cherished stop-and-frisk program is not effective policing, and may in fact lead to more crime.

That’s not his intent, of course. His purpose is to defend the NYPD’s much-maligned stop-and-frisk program (and also its surveillance of political dissidents). He doesn’t succeed. In fact, he does a great job of discrediting himself right off the bat. Which is a shame, because he makes it too easy to roll your eyes at him, and that would be a mistake. This stuff demands serious discussion.

He starts off with a burst of illogic and bad math, to wit:

(A) During the 11 years Bloomberg’s been mayor, unspecified tens of thousands of weapons have been seized by the police;
and
(B) During those same 11 years, there were 7,383 fewer murders than in the preceding 11 years [though he cites 13,212 and 5,849 as the figures, so the actual difference would be 7,363];
therefore
(C) The NYPD has saved 7,383 lives.

Uh huh. Right.

Well, he IS right that crime is way down. A careful statistician might even observe that crime in this city is way WAY down. And this is a good thing.

But to what extent is it a result of the police seizing all those weapons? (And how many weapons did they seize in the 11 years before Bloomberg? He doesn’t say.) In fact, to what extent is the drop in crime the result of policing policies at all? Most research I’ve read seems to support demographic shifts and maturing community attitudes as its primary causes.

Kelly makes this “we saved lives” point in order to justify the NYPD’s stop-and-frisk program. He makes other arguments, too. Taken together, his arguments all boil down to “it works, therefore it’s justified.”

No. Wrong.

Just because something works, that doesn’t make it right. Or even legal. Just think of the atrocities the State could commit if mere effectiveness was all the justification it needed. Better yet, don’t think of them. I don’t want to give you nightmares.

But put that aside for now. Is he even right to claim that it’s working, in the first place?

-=-=-=-=-

It is silly to deny that good policing can affect crime rates. When the police are effective — when criminals stand a good chance of being caught and punished — then that effectiveness serves as a deterrent. People who otherwise might have committed a crime are more likely to think twice about it.

Then again, we are talking about violent crime, here. How much violent crime is even capable of being deterred? Most assaults and murders are unplanned, spur-of-the-emotions stuff. The odds of being caught and punished aren’t exactly being weighed. Even an effective police force will have an iffy deterrent effect there, at best.

But that’s not what stop-and-frisk is about. And it’s not really about getting weapons off the streets, either.

Stop-and-frisk is about making the risky people take their risky behavior somewhere else.

The NYPD is doing it because they think it will work. That it has worked. That it is working.

And they are wrong.

-=-=-=-=-

First things first: It is (more…)

Confused about the outcome

Tuesday, July 16th, 2013

You’re not the only one to ask, that’s for sure.  The short answer is this:

  1. The prosecution had the burden to remove all reasonable doubt from the jury’s minds — both that Zimmerman had committed every element of the crimes charged, and that he had not acted in self-defense.
  2. This was a very difficult case for them to prove.  Their evidence was iffy and called for a lot of speculation.  Their arguments were easily shot down by the defense.  And the defense view of the case was fairly consistent with the evidence.  At the end of the day, there was plenty of room for doubt about a lot of important things.
  3. With all that doubt, the jurors found that the state had not met its burden, which meant that they had to say “not guilty.”

Different people are confused and upset about this for different reasons.

Some are confused about what the evidence was, how the law applied to it, and where all the reasonable doubt came from.  I can try to go over all that with illustrations later, if you like. (I don’t mind, it’d be fun.)

Others are confused because they think the jury’s job was to decide what really happened, rather than to decide whether the state had proved its case beyond a reasonable doubt.  The jury’s verdict doesn’t mean “George Zimmerman is innocent” or “George Zimmerman was justified to shoot in self-defense.”  All it means is “the prosecution did not prove every element of the crime beyond a reasonable doubt” and “the prosecution did not prove it wasn’t self-defense beyond a reasonable doubt.”

Also, in cases like this, a lot of people take sides without knowing (or even caring) what the actual evidence was, or how the law applies to it.

Instead, a lot of people take sides, for and against, because they want to further some sort of political agenda.  There is a narrative they want the case to tell, regardless of what the facts really were.  It’s all about their cause, not the case.  So of course they get upset when the jury’s verdict doesn’t fit their narrative.

And a lot of other people take sides because they get the sense that one or the other is the “right” side to be on.  Sort of a knee-jerk, follow-the-crowd sort of thing.  They may not really know what was going on, but they feel that they are on the side of good and justice.  So of course they get upset when the jury’s verdict isn’t what the crowd had led them to expect.

Yes, juries can and do come back with bizarre verdicts that make you wonder how many brain cells they had between them.  But this just isn’t one of those cases.  The jury’s verdict was not at all unsurprising, given what came out during the trial.  It would be very easy for people of ordinary judgment to believe that the government came nowhere near proving its case beyond a reasonable doubt.

Zimmerman may or may not have committed the crime with which he was charged.  But that jury had good reason to come back with a “not guilty” verdict after that trial.

-=-=-=-=-

You wanna hear something shocking?  I don’t think the prosecutors really (more…)

On this latest Miranda thing…

Monday, April 22nd, 2013

So after catching one of the guys thought to have committed the Boston Marathon bombing (and a string of violent acts thereafter), the government said they weren’t going to read him his rights. Not just yet. Invoking the “public safety exception” to the Miranda rule, they said they wanted a chance to find out who he was working with, where other bombs might be, etc., before telling him he’s allowed to clam up.

Predictably, a lot of people were upset about this. But why?

Yes, it was wrong of the administration to say that. But not for the reasons everyone’s saying. Not because it’s further eroding our rights (it’s not), but because it’s just stupid.

It conflates intelligence with evidence — stupid. It misses the whole point of Miranda — stupid. It defeats the purpose of intel — stupid. And pisses off those who love the Constitution — stupid.

And of course, it’s nothing new.

About three years ago, the Obama administration made it DOJ policy to permit “unwarned interrogation” not only in situations involving immediate public safety (“where’s the bomb?”), but also cases where cops believe getting intel outweighs your right to remain silent.

The 2010 memorandum states:

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.

On top of that, the Obama administration wanted Congress to specifically pass legislation allowing longer interrogations before Miranda need be invoked. (A brilliant writer blogged about that memo a couple of years ago, concluding that it was “An Unnecessary Rule.”)

The administration is just trying to have its cake and eat it, too. Miranda does not prevent them from gathering intelligence. The Fifth Amendment does not prevent them from gathering intelligence. They can interrogate people all they want, in any way they want, and the Constitution doesn’t say jack about it. But if they force you to incriminate yourself against your own will, they’re just not allowed to use those statements against you to prove your guilt in a criminal proceeding. That doesn’t mean they can’t force you to incriminate yourself, and it doesn’t mean they can’t use those statements for other purposes.

But the government wants to be able to do both. It wants to be able to override your free will, force you to condemn yourself, and use your words both to prevent future attacks (laudable) and to convict you so the State can punish you (contemptible).

Their saying this out loud is idiotic, because everyone sees how contemptible it is, and the government looks even more like an enemy of the public, rather than its protector. And of course giving a heads-up to the real bad guys about what we’ll be doing. (And announcing it in a specific case, as they did this week, just lets everyone in the bomber’s organization know that we’re learning everything that guy could tell us. Stupid. You never want the enemy to know how much you know.)

But it’s also stupid because it misses the ENTIRE POINT of Miranda.

Sorry to break this to you, but Miranda isn’t about protecting your rights. It never was.

Miranda is about giving the police a free pass. It always has been.

The Fifth Amendment is there to make sure we don’t have another Star Chamber. We don’t want the government using its power to override your free will, and make you confess to a crime so it can punish you. Lots of confessions are purely voluntary. In fact, most probably are. But sometimes the government has to force it out of you, and we don’t want that to happen.

But it’s hard for courts to tell voluntary confessions from involuntary ones. They have to look at facts and assess things on a case-by-case basis. That’s hard. And it’s hard for police to know if they’re crossing the line, when the line is different for every individual. So the Miranda rule creates an easy line that applies to everyone:

Say the magic words, and the law presumes that the confession was voluntary.

See how easy that was? Not hard. Easy.

All a cop has to do is recite the Miranda litany as they’re taking a suspect into custody, and BAM! they get to interrogate all they want, and everything the guy says can be used in evidence at his trial.

It is hard to imagine a more pro-law-enforcement rule. In one stroke, Miranda dispensed with actual voluntariness, and replaced it with “as a matter of law” pretend voluntariness.

And yet law enforcement — even our nation’s top officials, who went to law school and everything — astoundingly persist in thinking Miranda is bad for them. They think that, if you mirandize someone, they’ll shut up, and you’ll lose all that delicious intel and lovely evidence. (NYPD officers are actually trained NOT to mirandize people on arrest, for this very reason. Yeah, TV ain’t real life.)

But here’s the kicker: People don’t clam up when they’ve been read their rights. The people who clam up remain silent regardless of whether they’ve been mirandized or not. In fact, there is evidence that people are MORE likely to talk once they’ve been read their rights. They don’t know what those rights mean, but they know they’ve got them, and TV has conditioned them to expect the magic words. So when they hear them, they relax. All is well. Their rights are being acknowledged. And they start blabbing.

So not only do the magic words let you use all those statements, compelled or not, but they actually get the statements flowing.

So wanting to hold off on saying them is just stupid. Counterproductive. Idiotic.

So there’s lots of reasons to dislike what the government is saying in this case. But eroding our rights just isn’t one of them.

You lost those rights in 1966.

Making Drug Enforcement Work

Friday, March 2nd, 2012

 

Tomorrow’s issue of the Economist has a brief piece on some new drug policing in Virginia: “Cleaning Up the Hood: Focusing on drug markets rather than users means less crime.” The article is on DMI, or Drug-Market Intervention, a law-enforcement strategy that has been spreading around the country since it was first introduced in North Carolina about eight years ago.

DMI is a combination of community involvement and police commitment that focuses on street dealers. The community is encouraged to report dealers. Police then notify the dealers that they know who they are, but promise not to arrest them if they take part in an intervention. The dealers are confronted with community leaders who show them what their dealing is doing to the community — and who promise to help them change their ways if they’re willing. The dealers are given a second chance. Meanwhile, the police increase their presence in the area, and those caught dealing now get locked up. Quick police response and community involvement increases people’s willingness to report dealers, and a cycle begins.

Law enforcement has long known that you don’t eliminate a drug problem by going after demand — addicts and users are too numerous, and no matter how many you lock up they just keep coming. Meanwhile, street dealers continue to operate, destroying the safety and livability of the community. The addicts they attract, the nastiness they inflict, the violence they commit, and the fear they instill all combine in ruinous ways, engendering more crime and blight.

Buyers are easy to arrest, though, and if a police force is going to be judged by its arrest numbers rather than actual results (as politicians are wont to do), then there is a strong temptation to arrest the users. Not only does this do nothing to stop the dealing problem, the users are typically charged with modest possession offenses that put them right back out to buy again.

Drug courts and similar diversion programs do actually work wonders with helping users break their drug habits and overcome the life-skill deficits that often led to them. But those programs are typically reserved for those charged with crimes to begin with, many times only those charged with felony possession, and of those only the defendants who are likely to succeed in the program to begin with. They’re great, but they don’t solve the underlying problem.

These DMI initiatives recognize that, like so much else in society, it is (more…)

Statistics and the Serial Killer

Monday, January 16th, 2012

Andrei Chikatilo was serial killer who murdered at least 56 young women and children starting in 1978 until his capture in 1990. The details are as bad as one might expect, and apparently the murders and mutilations were how he achieved sexual release. His killings seemed unpredictable to investigators at the time, and even in retrospect there appears to be no clear pattern.

Now, however, UCLA mathematicians Mikhail Simkin and Vwani Roychowdhury have published a paper where they see not only a pattern, but one that is meaningful to those who might want to stop other serial killers. In their paper, “Stochastic Modeling of a Serial Killer,” published a couple of days ago, Simkin and Roychowdhury discovered that the killings fit a pattern known as a “power law distribution.” One of many kinds of statistical distribution (the bell curve being another), power law distributions are often found for out-of-the-ordinary events like earthquakes, great wealth, website popularity and the like.

First, they looked at a timeline of his killings. They saw apparently random periods of inactivity. Each time Chikatilo started killing again, however, the next murder would come soon after. And the one after that even sooner. And so on and so on until the next period of no killing.

The study doesn’t take account of the reasons for two of the longer pauses — Chikatilo’s first arrest and detention on suspicion of being the killer, and the period where the media started reporting on the investigation — but the reasons aren’t important. What’s important is being able to make some kind of sense out of the seemingly random events.

What they noticed was that, when these ever-increasing murders were plotted on a logarithmic scale, they came out in almost a straight line — indicating the possibility that a power law might be at work here. What’s more than that, they noticed that the curve’s exponent of 1.4 was pretty darn close to the 1.5 found for the power curve of epileptic seizures. What if (they wondered) the killings fit a neurological pattern? What if, like epileptic seizures, psychotic events like these killings came about when an unusually large number of neurons in the brain started firing together?

So they plugged in some givens of what is known about how neurons work, modeled on how epilepsy works. They made the model a little more realistic — seizures come unbidden when the conditions are met, but killers probably need some time to plan once their brain is ready for the next attack. Then they ran a simulation.

The simulated probabilities for the length of time between murders tracked the real-life data almost perfectly.

In other words, if you know when the last murder took place, you can calculate the probability that another killing will happen today. And the more time has passed since the last one, the less likely another will happen.

-=-=-=-=-

Fascinating stuff, but so what? The so what is that (more…)

What Would Plato Do?

Tuesday, September 20th, 2011

Wanda: What would an intellectual do?  What would… Plato do?

Otto: Apol-

Wanda: Pardon me?

Otto: Apollgzz.

Wanda: What?

Otto: Apologize!

Well, no.  He probably wouldn’t.  Not Plato.

And certainly not in the case of Troy Davis, whose final clemency request was denied this morning, and who now faces execution tomorrow evening for the killing of a police officer in 1989.  He was convicted at trial 20 years ago, but since then the reliability of that verdict has been called into serious question.  Seven of the nine major witnesses recanted their testimony, many claiming that the police pressured them to give false eyewitness accounts.  No forensic evidence ever tied Davis to the crime, the murder weapon was never found.  In the intervening years, ten new people have come forward to point the finger at another individual known to have been present at the scene.

So it’s possible that Troy Davis might not have shot the officer.  It’s possible that he might have.  Twenty years of second-guessing and changing stories make it uncertain.  But what is certain is that he was convicted, and that the conviction stands.

Should we be troubled by this?

We started pondering this after our kids’ bedtime story the other night.  We were reading to the lads from the Dialogues of Plato [what, you got a problem with that? Shut up, these are not your children.], specifically the Crito.  That’s the one where Socrates has been condemned to death, and his friend Crito shows up to talk him into escaping.  Boiled down to its essence, the Crito runs something like this: (more…)

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…)

Self Defense Law for Dummies

Monday, December 27th, 2010

Quite a few people have asked us about self defense, lately.  Must be something in the water.  Whatever the reason, it’s a question that a lot of people seem to be asking, so we figured we’d save ourselves from repeating the same conversation over and over, and just post the main points here.  (Of course, every state’s rules are different, but this is pretty much how it works.)

It’s really no different than the rules we gave our firstborn at the start of this school year, when he started coming home with tales of older kids trying to bully him.  (And by bullying, we don’t mean the modern usage, things like teasing or depriving one of self esteem.  We mean physically trying to injure our first-grader.)  Our rules were simple.  If some kid started bullying him, we said:

(1) Leave.  Go somewhere else.  If that’s impossible or they follow you, then…

(2) Get a teacher or some other grownup to stop it.  If that’s not working, and they really mean to hurt you, then…

(3) Hit first.  Hit hard.  And don’t stop hitting until they can’t hit you back any more.  There are no unfair moves.  Here’s some things you might try…

It seems to have worked.

Well, those are pretty much the rules that the law recognizes.  We didn’t think of it that way at the time, but those playground rules are the same rules we grownups are supposed to be playing by as well.  If someone’s trying to hurt you, then:

(1) Leave.  Go somewhere else.  (If you’re in your own home, then you don’t have to leave.  The law recognizes that it’s your last refuge.)

(2) If you can’t escape, then try to get the authorities to protect you.  (Yeah, we live in the real world too.  Fat chance.  But if it happens to be a possibility, then do it.)

(3) If that’s not going to work, then stop the attack.  Be reasonable — don’t use a gun if you’re not in mortal danger, but go ahead and use deadly force to save a life if you need to (and you can probably assume that someone breaking into your home poses a mortal threat).  The point is to stop the bad guy from doing bad things to you.  Whatever is necessary is, well, necessary.  Stop him.  Period.  Just don’t use more force than the situation calls for.  Don’t YOU be the bad guy.

If at any time you can escape, or get help, then of course go back to step 1 or 2.  That’s just common sense.

It’s really nothing more than avoiding overkill.  Be reasonable.  Nobody expects you to just let a bad guy hurt you or your loved ones.  But don’t go overboard.

Again, every state’s rules are slightly different.  But this is pretty much it.

If you were planning on writing in, we hope this answers your question.  (And if you have an actual real-life scenario, please call a lawyer where you live.  This ain’t legal advice.  It’s just a summary of the general rule.  Real life is not general.)

Temporary Incomprehension

Monday, October 4th, 2010

The blawgosphere was atwitter recently over that Kentucky murder trial where the defendant had confessed, but claimed it was a false confession, due to “sleep-deprived psychosis” from drinking too much coffee.  The jury didn’t buy it (here’s a short article on it).

Did that case remind anyone else of this short film?

Still Life

It’s no secret that sleep deprivation does crazy things to the brain.  Among other things, it dramatically impairs judgment and cognition, and for this reason has for decades been seen as a highly effective interrogation tool by intelligence agencies around the world.  No matter how well trained, most people are simply going to break after a fairly short period of disorientation and sleep deprivation.  Of course, sleep deprivation also results in hallucinations, extreme discomfort, and memory problems — as well as increased suggestibility — making useful interrogation under such circumstances a job requiring the utmost care and attention.  It’s worse than dealing with a young child (as we all know, children are enormously suggestible, so that their statements can be manipulated unwittingly even by one’s body language and tone of voice).  It’s like questioning a child who is stressing from sheer confusion, and who is also in a hypnotic state.  Suffice it to say that the slightest error by the interrogator can produce completely unreliable results, or at best results that must be artfully interpreted to divine what’s more likely to be the truth.

Suffice it also to say that the vast majority of law enforcement officers do not conduct interrogations with such extreme care.  If any do.

So this this defense, in and of itself, isn’t as laughable as (more…)

Just Around the Corner

Friday, October 1st, 2010

The Supreme Court is back in session on Monday, and we’re not ashamed to admit that we’re excited.  As always.  And they’re starting off the argument season with a bang — a critical issue on federal sentencing of gun crimes.  Can’t wait.

The case is actually two cases, Abbott v. U.S. and Gould v. U.S.  The issue is just what the heck 18 U.S.C. § 924(c) means.

§ 924(c) says, if you’re convicted of possessing a gun during a narcotics crime, you get a 5-year minimum sentence, to be served consecutively.  Unless, that is, “a greater minimum sentence is otherwise provided by this subsection or any other law.”

Such straightforward language, and yet capable of so many different interpretations.  Is it written to make sure that you get at least 5 years if you carried a gun during a drug crime?  Or is the point to make sure that you get at least an extra 5 years, added to the original sentence?

Does it mean that, if you’re already facing a mandatory minimum greater than 5 years for the gun, then § 924(c) doesn’t even apply?

Does it mean that, if you’re (more…)

Innocence Not Proven

Wednesday, August 25th, 2010

 

A year and eight days ago, the Supreme Court took the unusual step of granting an “original writ,” and handed down a novel decision directing a federal court to revisit the murder conviction of Troy Anthony Davis by allowing Davis to put on evidence of actual innocence.  (See our original post on the decision here.)  Davis was convicted after trial of shooting a police officer to death in 1989.  He always claimed he was there, but didn’t shoot anyone.  Several witnesses said otherwise, and the jury found him guilty.  After some of the witnesses recanted, however, and evidence was discovered that indicated that the prosecution’s star witness was the real shooter, the issue of actual innocence was put into play.  With some serious debate among the Justices, the Supreme Court sent it back specifically for the district court to determine whether there was evidence not available at the trial would “clearly establish” his innocence.

Yesterday, the federal court finished hearing the evidence of actual innocence, and found nothing worth reversing the conviction.  “Mr. Davis vastly overstates the value of his evidence of innocence,” the court found.  “Some of the evidence is not credible and would be disregarded by a reasonable juror. … Other evidence that Mr. Davis brought forward is too general to provide anything more than smoke and mirrors.”  You can read the CNN story here, and the decision itself here (part 1) and here (part 2).

“This court concludes that executing an innocent person would violate the Eighth Amendment (barring cruel and unusual punishment) of the U.S. Constitution,” ruled U.S. District Judge William T. Moore Jr.  “However, Mr. Davis is not innocent.”  Although the state’s case “may not be ironclad, most reasonable jurors would again vote to convict Mr. Davis of officer MacPhail’s murder.”  Repeating a phrase, it went on “ultimately, while Mr. Davis’ new evidence casts some additional, minimal doubt on his conviction, it is largely smoke and mirrors,” Moore ruled. “The vast majority of the evidence at trial remains intact, and the new evidence is largely not credible or lacking in probative value.”

We’d be surprised if there wasn’t yet another appeal.  We’ll save you our rant on why this process is precisely why capital punishment doesn’t work.  If you’re interested, you can read it here.

Taking DNA Samples at Arrest? Not a Problem.

Wednesday, August 4th, 2010

dna

On May 8, 2005, we were having a party.  It was our birthday, and our firstborn had just turned 1 a few days before, so it called for a big celebration with friends and family.  For us, it was a time of new beginnings.  But for Jerry Hobbs, May 8 2005 was the end.  He found his 8-year-old daughter and her 9-year-old friend brutally stabbed to death, in a park in Zion, Illinois.  He immediately called the police, who immediately made him their number-one suspect.  He’d just gotten out of jail in Texas, after all, so why investigate further?  He was subjected to a long, intense interrogation, and eventually made a statement that sounded like a confession.  He recanted the statement, saying it was coerced, but that didn’t matter, and he was charged with the murders.

Shortly after his interrogation, the police found DNA on the girls’ bodies that didn’t match Hobbs.  The DA discounted it, saying it must have been cross-contamination and couldn’t have been relevant to the crime.  But the DNA was in semen found on the girls’ bodies — and inside one girl’s vagina — and that’s not cross-contamination.  The DA insisted that it was still irrelevant, and that the semen must have been on the ground before the attack.  Seriously.  Hobbs remained in custody, charged with the double murder, for more than five years, though his case never went to trial.

He was in jail until a couple of hours ago, that is.  As it happens, that DNA on the girls’ bodies was extremely relevant.  Jorge Torrez, who had lived in Zion at the time, was arrested in Arlington, Virginia a few months back, and charged with the abduction and repeated rape of one woman as well as attacking another woman.  Virginia, unlike Illinois, takes DNA samples along with fingerprints when someone is arrested.  The DNA taken at Torrez’s arrest went into the database, and popped up as a match to the DNA found on the girls.  The Illinois prosecutors dithered for weeks, but this morning they finally released Hobbs from prison (though they refused to issue an apology, insisting they and the police had done everything right).  Still, an innocent man went free at last.

And if Torrez’s DNA had not been swabbed on arrest?  Hobbes’ coerced, false confession might well have resulted in yet another wrongful conviction.

This raises a lot of issues.  There’s the misuse of DNA evidence, and there’s the false confession, but those are topics for another time.  (If you’re interested in learning ways to defend such cases, you can check out our “Hope for Hopeless Cases” CLE series, particularly lectures IV and V.)

Today, however, our beef is with the civil liberties argument against taking DNA samples at arrest.

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The argument is that people who haven’t yet been convicted of a crime should not be compelled to give DNA samples.  It smacks of “Big Brother” and “Minority Report.”  The government might conceivably (more…)

Criminal Law Myth #1: You Can Drop the Charges

Thursday, June 17th, 2010

So Jacki called the cops on her man.  She didn’t mean for him to go to jail, really.  But it was a stressful situation, and this was the best way she could think of to get back at him.  It felt great, and having the cops on her side — having the cops as a weapon — was totally empowering.

But enough’s enough.  He’s been locked up for a couple of weeks, now.  It wasn’t supposed to be like this.  And it’s really hard for Jacki, what with him being out of work this whole time, and not being around to help with the baby.  And he really didn’t do anything wrong… it’s just that, you know… she wasn’t thinking straight.  And now it’s time for her man to come home.

That should be easy enough.  All she needs to do is drop the charges, right?  She’ll just go over to the DA and say she doesn’t want to pursue the case. 

We imagine that something like this is what’s going on in Jacki’s mind:

drop_charges_fantasy450

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Unfortunately, real life is more like (more…)

Echoes of Injustice: Second Department Sends Cop Back to Prison in Racially-Charged Case from the 90s

Friday, May 28th, 2010

diguglielmo

When we first moved to NYC in 1997, we thought we knew what racial tension was. After all, we’d grown up in various parts of the South and out West, and had seen and heard quite a lot of invidious prejudice. But we hadn’t seen anything, by comparison. We’d seen dislike and resentment out there, but the vitriolic race relations of the 50s and 60s had died down by our childhood in the 70s and 80s. We weren’t prepared at all for the outright hatred various groups expressed for each other in the grand metropolis. That first year here in the Manhattan DA’s office was an eye-opener. The city, especially the outer boroughs, seemed less like a melting pot than a petri dish, with virulent strains of hatred all fighting each other. Many working-class whites routinely used epithets one almost never heard in the South any more, and openly despised black people. Lots of black people hated white people right back, and seemed to have a bizarre animus towards jewish people, who we’d always thought of as champions of civil rights. African immigrants hated African-Americans, who they saw as lazy and as giving them a bad name. Every ethnic group seemed to have a derogatory name that everyone else used.

And this internecine feuding was still turning to violence in the ’90s. We’d never heard about the Howard Beach or Bensonhurst dramas of the late ‘80s, but here in the city that tension was still high. Al Sharpton hadn’t yet faded into irrelevance, and it seemed like he and his protestors spent half their time marching in circles somewhere or other. Right before we started at the DA’s office, the Abner Louima case happened, leading not only to renewed distrust of the NYPD, but even more racial tension. And just when that started to die down, the Amadou Diallo shooting flared it up again.

It was shocking to us. But to our friends who’d grown up here, it was just normal background. It was just the way things were.

So that’s what the culture was like in 1996, when a fight between some Italian men and a black man over a parking spot turned violent, the black man swung a baseball bat at an older Italian man, whose son — an off-duty cop — shot the black man to death.

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On October 3, 1996, in the suburb of Dobbs Ferry just north of the city, a black man named Charles Campbell parked his Corvette at a deli, in a spot reserved for deli customers. But he went into a different store across the street. When he came back, he saw the owner of the deli placing a sticker on the Corvette. Campbell got angry and started a fight. The deli owner, his son Richard DiGuglielmo (the off-duty cop), and a third man (Robert Errico, the cop’s brother-in-law) wound up fighting with Campbell.

The fight ended, and Campbell walked back to his Corvette. During the fight, his shirt had come off, and the deli owner brought it over to him while his son and the other man went back towards the deli. But then Campbell opened the back of the Corvette, grabbed a metal baseball bat, and kneecapped the old man with (more…)