Cross Examination on Sale

What people just don’t get about red light cameras is that they make money.  It’s not personal. It’s just business.  Cities need money, and who better to get it from then faceless people who cameras say broke the law? 

It’s not that anyone denies this to be the core motivation. In fact, while the rhetoric of making streets safer was originally part of the sales pitch by camera companies, repeated with approval by local politicians, everybody involved now conceded that it actually does the opposite. But it’s money, and you have to break a few eggs to finance an omelet.

Given this motivation, it’s completely understandable that anything the siphons money away is, well, unhelpful.  Like some guy named Kevin Schmadeka in Tacoma, Washington, who got a red light camera ticket and decided he wasn’t going to pay it, but wanted a trial that included a living, breathing witness against him.  That’s when he got the bill.

Red light camera ticket recipients in Tacoma, Washington are being told they need to buy $30 meals and $114 hotel rooms for employees of an Australian company if they want to exercise their rights under the Sixth Amendment. Motorist Kevin Schmadeka had gone to the courthouse to gather information to use to defend himself found out he was supposed to pay a total of $670 in travel expenses for an employee of Redflex Traffic Systems if he wanted to confront the witnesses against him.

“When I was at the clerk’s office inquiring about chain-of-custody information, the employee at the counter mentioned that if I wanted to subpoena a camera company representative that there was a fee,” Schmadeka told TheNewspaper. “Later on I thought about that some more and made another inquiry by phone, also requesting documentation about how such a charge was authorized. The clerk I spoke to at that time had no explanations to offer, but did send me the request form.”

Any lawyer will immediately spot the error of Schmadeka’s maneuver. He told the clerk he wanted to subpoena the Aussie Redflex witness. Big mistake. It’s not the defendant’s responsibility to subpoena the witness for the prosecution; it’s the prosecution’s job to call the witness required to make its case.

Photo ticketing firms have been facing increased pressure since the 2009 US Supreme Court ruling in the case Melendez-Diaz v. Massachusetts, which dealt with laboratory analysis of drug evidence. A defendant argued that he had a right to question the lab worker who signed a piece of paper that certified the substance he had been carrying was cocaine. The majority agreed that despite the possible hassle involved in confirming each fact at trial, it is essential to the integrity of the court system that such questioning of the evidence be allowed.

Tacoma sought to avoid the inconvenience by forcing defendants to pay for the cost of confronting the witnesses against them. Schmadeka added this to a long list of constitutional concerns he brought before a judge.

But you can’t blame Schmadeka for not realizing the error of his request. Why shouldn’t a citizen accused of a wrong, even by red light camera, not be entitled to his right to cross-examine every witness necessary to prove his guilt?

Money. This is what happens when the criminal justice system, especially for trivial offenses, becomes a captive to money.  It then becomes a cost-benefit analysis, with the trade-off being basic rights and due process versus the cost of providing them. 

Fortunately for Schmadeka, when he brought the demand that he finance his own constitutional rights, the judge got the picture.

“If the city considers it too expensive and burdensome to fly a camera company representative to Washington every time a defendant wishes to cross-examine them, the city should consider this obligation when making their decision to outsource local law enforcement duties to privately-owned, for-profit out-of-state companies,” Schmadeka said.

The judge singled out the Sixth Amendment issue and dismissed the charges against Schmadeka.

That’s nice for Schmadeka, but it doesn’t change the policy of Tacoma, which still requires payment of $670 from anyone who wants a living, breathing witness to cross-examine.  And what of the nice Tacoma residents who challenged their red light camera tickets before Schmadeka, who either paid the freight or were convicted in the absence of a necessary witness?  Did the judge, maybe even the same judge, notice that there was no witness to testify as to the efficacy of the cameras?  Or did they just go through the motions, pretend the defendant had a chance at trial, and then convict him and pull out the credit card machine?

Yes, cities want money, and who better to get it from than people accused of doing wrong.  Taxpayers love being financed by bad guys, provided they aren’t the ones accused of being bad guys. Elected officials love being able to snarf up some excess fundage from people who can’t complain about it, simultaneously telling their constituents about the glory of holding down tax rates at the expense of traffic miscreants. 

The problem is that if you want to use the criminal justice system as a fabulous source of additional revenue, then you still have to comply with those nasty constitutional rights, which includes the duty to present proof in the case in chief and afford the accused the right to cross-examine a living, breathing person.  Even if that person turns out to be an Aussie.

A bad financial deal for Tacoma?  Bummer.

9 comments on “Cross Examination on Sale

  1. John David Galt

    The right answer to “It’s just business” is the one that line gets in The Godfather.

  2. Alex Stalker

    Recently Washington State started charging a fee (I do criminal defense, not infractions, so I don’t remember how much or exactly when it started) if you want to have a contested hearing on your infraction. Erroneous citation? No problem, now you’re paying to contest the citation, not paying the ticket. That’s much better. Washington seems to have stopped trying to pretend infractions are about enforcing the law rather than collecting revenue.

  3. rxc

    I wonder when some smart jurisdiction is going to extend this concept to all criminal trials. E.g., tell the defendent up front that if they want a jury trial, the defendant has to pony-up a deposit to pay for the costs that the jurisdiction anticipates it will have to spend on prosecutors, police testimony, even the time for the judge, jury, the building maintenance, etc.

    Alternatively, the defendant could plead guilty or do a plea-bargain and not have to pay these charges.

  4. SHG

    If they are really smart, they will take a cost plus approach, and make a profit on every prosecution. Or constitutional rights a la carte, with a Chinese menu approach. So much opportunity.

  5. wfjag

    Don’t they have Skype in Australia? The Constitution guarantees a right of confrontation of one’s accusers, and trial practice requires the opportunity to cross-examine hostile witnesses. There is no requirement that the witnesses be examined in the same room as the defendant. If the City of Tacoma must produce witnesses, it is its choice if it wants to transport them from Australia to the US, and provide lodging and meals. Any costs other than arranging for the use of Skype or other video service is unreasonable.

  6. SHG

    Confrontation requires physical presence in the same room. No, Skype won’t do. No, not even if you think it’s good enough.

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