Author Archives: SHG

Because “Crazy” Hurt The Detective’s Feelings

Among the most ridiculous cases of the year, the search warrant in Manassas, Virginia to photograph the erect penis of a 17-year-old boy charged with sexting his girlfriend stands apart.  To describe what happened there as “crazy” is to be tepid. It was totally batshit crazy and every person complicit in the insanity was a flaming nutjob.

Jessica Harbeson Foster, who represented the teen, said as much.  Well, she was kinder.

Foster told The Post, in an article published online on July 9, that her client had already been arrested and his genitals photographed at the county jail. She said Assistant Commonwealth’s Attorney Claiborne Richardson told her on July 1 that the teen must either plead guilty or police would obtain another search warrant “for pictures of his erect penis,” for comparison to the evidence from the teen’s cell phone.

The online article concluded with this paragraph, which is the subject of Abbott’s complaint:

“Foster said Detective Abbott told her that after obtaining photos of the teen’s erect penis he would ‘use special software to compare pictures of this penis to this penis. Who does this? It’s just crazy.’”

See? Under the circumstances, a rather restrained expression of opinion. So naturally, Detective David Abbott, unsatisfied with being ridiculed for his involvement in the execution of a warrant to force a teenage boy to have an erection so it could be photographed, has chosen instead to add a new source of ridicule to the mix. He’s suing Foster for defamation. Continue reading

Revenge of the Poor House

For reasons that completely elude me, Judge Richard Kopf found a question in my acidic post about Tina Brown’s celebrity bash:

I am wondering about a question that Scott’s article very indirectly raises. If crime is highly correlated with poverty, and I believe that it is, can’t one make a compelling argument that imprisoning the poor for long periods of time when they commit crimes is far cheaper than truly trying to eradicate poverty? If that is so, maybe we need more, rather than fewer, prisons. Just a thought.

I would like to take this opportunity to answer the judge’s question. No. Absolutely not. Under no circumstances whatsoever does poverty, whether or not a proxy for potential recidivism, justify enhancing a sentence of imprisonment. Nope. No.

I’m glad we could have this chat.

The Unbearable Lightness of Deferred Corporate Prosecution

On the one hand, Americans are so naively jingoistic as to believe we can dictate how a corporation should play fair when seeking a deal with some third-world grand poobah in competition with other corporations who labor under no limitations as to how many Bentley’s they’re allowed to offer the poobah’s twelve wives after the sumptuous luncheon paid for by some French company.

On the other hand, Americans naively believe that a bunch of kid prosecutors are so bizarrely brilliant that they can reform what our laws state are acceptable business practices for multinational corporations and dictate how the corporation is to thrive in the jungle of competition.

On the third hand (or are we down to foot?), we can pull the guy out of his CEO chair and throw him in a prison cell, but we can’t toss a corporation into the hoosegow because it’s not really a physical entity, no matter what the Supremes say.

And on the fourth hand (or other foot), there has to be some means by which corporations who engage in criminal conduct are subject to sanctions.  So the law provides for fines, which corporations address as business decisions, another expense to be paid, in the conduct of whatever business it does, carrying no moral shame or consequence that can’t be subsumed on the balance sheet. Continue reading

The Prison Caveat

There are many who consider “convicted criminals” to be so inherently worthless to society that they have no concern for what becomes of them in prison. It bears noting that the tune changes if they or their loved one ends up in the slammer, but that’s a truism. Nothing matters until it touches your life.

There is, however, one caveat that anyone with any humanity must consider when thinking about how prisoners are treated. They are entitled to survive the punishment. This caveat stems from two sources. First, prisoners have been sentenced to a term of imprisonment, not death. While they may be held to serve that sentence, they must not be held to serve a greater sentence.

Second, the doctrinal purposes of imprisonment lose their legitimacy if prisoners do not survive due to systemic failure.  A sentence of imprisonment cannot be justified if its outcome fails to reach the minimum state of survival. Risk of death at the hands of laughing screws is not an option.

At the WaPost, Radley Balko provides a litany of failures of the prison system to meet its minimum duty of survival. Continue reading

Turning A Bad Choice Into A Quasi-Criminal Event

Based upon the text messages, it all seemed rather flirtatious.  A few days later, after she discussed matters with her friends at Yale, the tone changed.

“Let’s just start with objective fact: you raped me,” she e-mailed the male student in May. “You are a rapist.”

And indeed, he did, provided one “defines” rape the way the United States Department of Education, Office for Civil Rights, would have it.  In the Yale case, the young man prevailed, presumably based upon the facts: the text messages, that they both undressed themselves, that they had sex again in the morning, after she could make no claim of drunken incapacity and the 13 months it took her to formally claim she was raped.

She made a curious claim in response to the morning sex:

The woman remembered the incident differently: “She woke up feeling terrible that she had become so inebriated and had sex despite not wanting to. . . . When he initiated sex that morning, the female student said she did not resist because she felt refusal would be too emotionally exhausting.”

Continue reading

The Price of Transparency (or any excuse will do)

The virtues of police wearing body cams is well known, for the protection of both police and the public. The Rialto, California experiment has proven to be a huge success.

Rialto’s randomised controlled study has seized attention because it offers scientific – and encouraging – findings: after cameras were introduced in February 2012, public complaints against officers plunged 88% compared with the previous 12 months. Officers’ use of force fell by 60%.

So what’s not to love?  Youtube, apparently. Cops in Poulsbo, Washington, are complaining about being inundated with records requests for video. Continue reading

Can Tina Brown Make Reform Sexy?

The opening to her post is cute, in the sense that she plays the internets’ bi-polar self-loathing for listicles:

Do you like lists? Of course you do! It’s the Internet! So try this one:

1. Koch Brothers

2. National Association of Criminal Defense Lawyers

3. Sen. Cory Booker (D-NJ)

4. Sen. Rand Paul (R-KY)

5. George Soros

6. Sen. Mike Lee (R-UT)

7. Sen. Dick Durbin (D-IL)

8. Newt Gingrich

9. American Civil Liberties Union

10. Grover Norquist

Apart from a passionate certainty that either liberal Democrats or conservative Republicans (pick one) are a danger to the republic, what does this motley crew have in common?

Here’s what: They all agree that America’s practice of mass incarceration—unique in the world—is at worst a moral and practical failure or at best an outdated policy badly in need of adjustment.

Continue reading

Cause and Effect

For a great many people who decry the failure of the criminal justice system to distinguish the guilty from the innocent, groups like the Innocence Project have attained near god-like stature.  People are passionate in their support, and believe in the righteousness of the cause with all their heart and soul.  And that’s why Alstory Simon spent an extra 15 years in prison.

From Jim Stingl at the Milwaukee Sentinel-Journal:

The first time I wrote about Alstory Simon, then a Milwaukee north sider, was in 1999, right after he confessed to a double murder in Chicago.

Simon’s shocking admission — not to police but to an investigator working for Northwestern University’s Medill Innocence Project — led to the release and pardon of a man on death row for the crime, and ultimately to the death penalty being abolished in Illinois.

Two years later, I wrote about Simon again. This time he had reached out to me from prison to say the confession and subsequent guilty plea were involuntary. He insisted he was innocent, as do most inmates who send letters to reporters from prison.

Continue reading

Bill de Blasio: A Pot In Every Pot?

On its surface, the announcement will receive a great reception from marijuana and anti-stop & frisk advocates, as it could signify the end of a blight of phony excuses to toss young black and Hispanic males against walls for fun.  From the venerable tabloid, the New York Post:

The NYPD has killed the marijuana “buy-and-bust.”

The head of each borough’s narcotics unit was summoned to 1 Police Plaza last week and told, “The powers that be don’t want to see any more of these [pot] arrests,” sources said.

It seems wrong that they refer to “buy-and-bust,” the purchase of marijuana from a street dealer and subsequent arrest.  It would seem more likely that the Post just used the wrong language, because “buy-and-bust” sounds cooler and they aren’t going to let factual information stand in the way of cool words. Continue reading

Krugman’s Fuzzy Typo

The subject is as political as it gets for Paul Krugman in his New York Times column, but that changes nothing about the fact that he is, legally, as wrong as he could possibly be.  Worse still, he uses his soapbox to make readers stupid, which is inexcusable.

Once upon a time, this lawsuit would have been literally laughed out of court. Instead, however, it has actually been upheld in some lower courts, on straight party-line votes — and the willingness of the Supremes to hear it is a bad omen.

Krugman chalks it all up to partisan politics. Obamacare. What could be more partisan, and indeed, it will remain a partisan battleground. But not for the reasons Krugman thinks.  The suit deals with what appears to be a gross error in how the law was written, bearing on the availability of subsidies only to purchasers in state exchanges.  Somebody screwed up.

It’s a ridiculous claim; not only is it clear from everything else in the act that there was no intention to set such limits, you can ask the people who drafted the law what they intended, and it wasn’t what the plaintiffs claim.

Continue reading

But For Video: “Doesn’t Look Good” Edition (Update)

The officer’s calm explanation, when confronted with the video of his conduct, was straightforward.

“I was concerned. It was a public safety issue,” he continued. “If I had to do it all over again, I’d probably do the same thing”

But only if there was no video, so no one, including his superiors at the Saratoga sheriff’s office could see Sgt. Shawn R. Glans’ professionalism in action.

From the Albany Times-Union: Continue reading

Women, Too Delicate For Prison

What were the chances?  In retrospect, pretty darned good. I should have seen this coming a mile away, but I didn’t, and so it struck me as so utterly absurd at first.  As the gender-based approach to law, shifting from equity if not equality to flagrant gender preference, this is merely a natural step in the progression.

From the Washington Post, via Doug Berman, comes this “provocative” proposal by associate professor Patricia O’Brien of the Jane Addams College of Social Work at University of Illinois at Chicago:

It sounds like a radical idea: Stop incarcerating women, and close down women’s prisons. But in Britain, there is a growing movement, sponsored by a peer in the House of Lords, to do just that.

The argument is actually quite straightforward: There are far fewer women in prison than men to start with — women make up just 7 percent of the prison population. This means that these women are disproportionately affected by a system designed for men.

Are prisons a system designed for men?  One might have thought them to be designed for criminals, regardless of gender.  Granted, women are given disproportionately lighter sentences for the same offenses of conviction as men, an example of rank sexism in the courts, but we’re not inclined to beef about it as the notion is to bring men’s sentences down, not women’s up.  Perhaps we’re being too kind? Continue reading