Category Archives: Uncategorized

Statistics, With Rigor

For those of you who, like me, sat through Statistics 101 thinking that it would be great if there was a long needle within reach so I could stick it in my eye rather than have to sit through any more lectures, much of the discussion about the “1 in 5″ rape epidemic stat that has driven the hysteria upon which evisceration of basic due process rights is grounded is problematic.

Sure, we understand basic statistical flaws, such as the lack of random sampling and itty-bitty sample sizes. Or there’s the facile interpretation of responses to conform to the outcome desired by the people conducting the study. Or the problems when definitions are fudged to the degree that “some guy stared at me at a party” becomes “stare rape,” which becomes rape.  Or rape is whatever someone decides it is the day after consensual sex.

But these are just the surface flaws.  We’re not qualified to parse the details with a statistician’s eye, so we rely on those who know what they’re really talking about.  One such person, new to the blogosphere, is Francis Walker. Continue reading

The Other Three Officers Said No

John Geer was having problems with his live-in partner of 24 years, Maura Harrington, and started throwing some of her possessions out of the house and onto the lawn.  So she called the police.

One of the first officers to arrive, Adam Torres, a 30-year-old cop who had been on the force for seven years, pointed his gun at Geer when he announced that he had a holstered gun, which he put on the ground. Even so, Torres kept his gun aimed.  Other cops arrived, including Rodney Barnes, a trained negotiator.  He developed a rapport with Geer, and the situation de-escalated.

John B. Geer stood with his hands on top of the storm door of his Springfield, Va., townhouse and calmly said to four Fairfax County police officers with guns pointed at him: “I don’t want anybody to get shot . . . . And I don’t wanna get shot, ’cause I don’t want to die today.”

Then Torres pulled the trigger and killed Geer. Continue reading

The Myth That Won’t Die

We were out to dinner at a pedestrian steakhouse last evening with a couple we’ve known for a very long time.  After running the course of the usual conversations, my pal Ralph mentioned that he was concerned for his niece who was a freshman at college because he hears there is a rape epidemic.

Oh crap.

He explained to me that 1 in 5 college women were raped.  I explained to him in return that the number was nonsense, a bit about the statistical failings until his eyes started to glaze over, and then about the Bureau of Justice Statistics number of .61%, not 20%. I had lost him.

For the handful of us who aren’t dedicated to perpetuating a lie that supports a political position, that the 1 in 5 is nonsense is old news.  And yet, the media continues to perpetuate the myth, fact-checkers be damned.  And it’s not yet done. Continue reading

Who’s That Knocking At My Door?

At WaPo’s The Watch, Radley Balko has a fascinating discussion of the history of no-knock warrants which includes discussion by Reason’s Jacob Sullum.

The no-knock raid is different from other raids in that it dispenses with the knock-and-announce requirement. This requirement, which dates back centuries to English common law, is part and parcel with the Castle Doctrine, the idea that the home should be a place of peace and sanctuary and that even when police have just cause to search a house, residents should be given every opportunity to come to the door, answer peacefully and let the officers in, thus avoiding damage to their property and violence to their person. (It also gives innocent residents the opportunity to point out to the police that they have made a mistake.) Under the Castle Doctrine, suspects are presumed innocent until proven guilty.

The law has always given special protection to the home, except when it doesn’t.  It’s not that the police shouldn’t be able to obtain a search warrant upon a showing of probable cause to a neutral magistrate, but that once obtained, two forces kick into play. First, whether the occupants of the home retain the presumption of innocence, and second, whether the interests of law enforcement take precedence.

As to the second prong, there are two considerations.  The first and foremost concern is the First Rule of Policing; that the cops execute the warrant without any risk of harm to themselves, even if that means the risk of harm is shifted onto the people inside the home.  The second is the preservation of evidence, which means that the raid be conducted with such speed and force (or as the police prefer to call it, “dynamic entry”) that the occupants can’t dispose of evidence before the cops can get it.

The alternative to the no-knock warrant, whether the state permits it as a matter of course or requires the inclusion of some talismanic incantation, whereupon the judge blesses it, is the knock-and-announce warrant.  The notion, back when great-grandpa was courting great-grandma in his surrey, was that the police would knock on a door and wait for the occupant to answer. That could take minutes, even during the day.

But that was ancient history. Sullum notes the Supreme Court’s decision in U.S. v. Banks.

As Sullum points out, the issue in the case is how long the police must wait after knocking and announcing before they can force their way into a home. But the majority goes about calculating that period of time not by estimating how long it would take a resident to come to the door to avoid violence and destruction of property — as it would do if it were starting with a presumption of innocence — but by estimating how long it would take someone to destroy drug evidence, as it would do if it were starting with a presumption of guilt. So while the court’s majority in Banks affirmed the knock-and-announce requirement, it dispensed with the very reason the requirement exists in the first place. It reduced the requirement to a mere formality, a kind of ritualistic but ultimately meaningless tribute to a time when the law took more seriously the presumption of innocence and the sanctity of the home.

Consider, however, the impact of a warrant executed in the dark of night, when the occupants are asleep.  No one expects a knock on the door in the middle of the night. Some won’t wake up, especially if it’s a dainty knock.  Some will, but will need a few moments to process what’s going on.  Very few will have the ability to awake from sleep, process the knock, and get to the door with such blinding speed as to beat the battering ram, where the cops counted to three seconds before breaking down the door.

The entire point of “dynamic entry” is to take the occupants of a building by surprise — to overwhelm them with force and violence before they have an opportunity to do much of anything, much less come and answer the door. Once you’ve decided to use dynamic entry tactics, you’ve already dispensed with the entire purpose of the knock-and-announce requirement.

And once the police enter, the dynamic changes entirely.  While the homeowner may think a burglar is breaking into the home and take actions to protect his family, the cop’s concern is their own welfare, so shoot first and true.  Not because the homeowner may necessarily be unreasonable in his defense of his castle, but because all the aspects of defense shift from the homeowner who would be a hero if these were home invaders entering to murder his family, to the police, who would be heroes by capturing the criminal within the home.

What Balko and Sullum lay out exceptionally well is the duality of concerns: do we (meaning society, and not just those reading here) prefer that police be safe and the evidence be preserved, or that people within homes be protected from harm by police executing a warrant under conditions that almost invariably deny the occupants the opportunity to allow the warrant to be executed peaceably.

Ultimately, this decision can be based on the degree of trust we repose in the police, in knowing what they’re doing and being trusted to do it without needless harm, and the judge who approves the warrant giving it sufficient scrutiny to assure that it is justified.  Or do we favor the possibility that the occasional criminal might be able to dispose of evidence of a crime so that the occasional non-criminal home occupant not be put at risk of his (or his baby’s) life?

For those who have never internalized the potential for harm to themselves or their loved ones, but read the newspapers and fear whatever epidemic is about to makes their lives unpleasant at the moment, the choice ultimately comes down to protecting their own interests. And if that means that some innocents end up harmed or dead in order to assure their safety, so be it.  It’s not like it would ever happen at their home, or to their family.  And that, ultimately, is what really matters.

The Need To Resign

Most people who serve on committees are “joiners,” the types of people who desire to be on boards, or committees, or groups so they can say they are and feel as if they must be very important people because they are part of the in-group.  Most committees, because of the nature of group dynamics combined with the nature of joiners, are at best a waste of time and at worst dangerous. As the saying goes, a camel is a horse designed by committee.

But Southern District of New York Judge Jed Rakoff doesn’t need to be on a committee.  He was, because the president appointed him, but only as long as he wasn’t wasting his time or worse.  As it turned out, it was worse.  Judge Rakoff’s letter of resignation from the Justice Department’s Commission on Forensic Science:

Last evening, January 27, 2015, I was telephonically informed that the Deputy Attorney General of the U.S. Department of Justice has decided that the subject of pre-trial forensic discovery — i.e., the extent to which information regarding forensic science experts and their data, opinions, methodologies, etc., should be disclosed before they testify in court — is beyond the “scope” of the Commission’s business and therefore cannot properly be the subject of Commission reports or discussions in any respect. Because I believe that this unilateral decision is a major mistake that is likely to significantly erode the effectiveness of the Commission — and because I believe it reflects a determination by the Department of Justice to place strategic advantage over a search for the truth — I have decided to resign from the Commission, effective immediately.

Continue reading

Did Bronx Defenders Endorse Cop Killing?

I’m not much of a connoisseur of rap music, but this video struck home with me.

It’s not that I endorse the line about a cop having to die. Obviously, I don’t and have made the point more times than I care to remember that no one should die. All lives matter. I feel no compulsion to prove myself now. I’ve always been clear about being against violence for everyone. Continue reading

A Non-Custodial Grope

Granted, Hawaii is a long way from the mainland, but it’s hard to imagine that it’s this far from the mainstream.

An Oahu grand jury indicted 35-year-old Kramer Aoki last November on a third-degree sexual assault charge, a class C felony punishable by up to five years in prison. The indictment says that on Sept. 6, Aoki, as a law enforcement officer, knowingly subjected to sexual contact a person in custody.

Aoki is accused of placing his hand on the breast of a teenage girl he had pulled over for speeding. After the alleged incident, Aoki let the girl go with a warning.

One of the most despicable abuses of police power is the use of fear, or authority, to coerce sexual contact.  There are instances of cops forcing women to perform oral sex to get a pass on an arrest or traffic ticket. Others just rape women.  But amongst good cops, this sort of conduct is intolerable to most; there are lines that cops should never cross.  Then again, others in law enforcement tend to see such conduct as a perk of the job, under some twisted vision of cops being “sexy” and deserving the occasional coerced sex act for being such brave heroes. Continue reading

Obstruction-Я-Us

Years ago, I got a t-shirt from the National Criminal Defense College in Macon, Georgia that read on the back, “I plead guilty to obstruction of injustice.” It was a cute shirt, but it carried a kernel of truth. It’s what we do. We obstruct. Criminal defense lawyers get in the middle of the smooth operation of law enforcement and make everybody’s job more difficult.

San Francisco public defender Jami Tillotson did her job the other day, and it was captured on video. Two guys, one of whom was her client, left court only to be seized by Sgt. Brian Stansbury. For reasons not entirely clear (though speculation is easy enough that the guys were potential suspects in some other case), Stansbury wanted to interrogate and photograph them.  That’s his job, identifying suspects of crimes.

Tillotson came out, told Stansbury that she represented one but not the other, and on his behalf, asserted his right to counsel to preclude further questioning.  She stood there and blocked his easy access to photographing her client, who was standing against the wall.  Presumably, that’s where Stansbury put him, back to the wall. Continue reading

Funeral Today

Today is my mother’s funeral, and so I’m off to fight the traffic on the Cross Bronx Expressway and the George Washington Bridge on my way to New Jersey.  Because it’s really poor form to be late to your own mother’s funeral.

I’m not really in the mood to write anything today, so please go read something worthwhile elsewhere.  And thanks to all for your warm wishes. It’s very much appreciated.

Dirty, Dirty Brandenburg

Since my last post about cops in Albuquerque, which included an update about the indictment of two cops for the killing of James Boyd, people have been sending me stories about how the cops have targeted District Attorney Kari Brandenburg in retaliation.  I’ve resisted discussion of this, both because it’s friggin’ Albuquerque (which isn’t as fascinating as, say, New York) and because Brandenburg is the DA.

What I mean by that is that anyone who wants to be the District Attorney takes on turf fraught with choices, many of which carry some public or private animosity.  When Daniel Donovan, the District Attorney of Richmond County (that’s Staten Island to you New Mexicans) sabotaged his grand jury presentment in the Eric Garner killing, I challenged his ethics. Same with St. Louis DA Bob McCulloch in the Michael Brown killing.

The argument in both cases was that the public was calling for blood, and the District Attorneys felt compelled to put on a play, present the case to a grand jury, while believing there should be no indictment.  Rather than sabotage the presentment, I argued that their ethical duty was to announce that they would not indict, because they did not believe an indictment was proper, and suffer the consequences.

Most people thought this ridiculous. How could the prosecutors not bend to the will of the public?  What choice did they have? Continue reading

Chait’s Big PC Risk

In the team sport of politics, few things are more poorly tolerated than a traitor.  It’s one thing for, say, George Will to question politically correct speech, but when a former liberal champion like Jonathan Chait does so, all hell breaks loose.

In a long-form article for New York Magazine, Chait took to task the ugliness of the new political incorrectness that had a few minutes in the sun in the late 1980’s, when feminist lawprof Catherine MacKinnon proclaimed herself Speech Queen for a Day.

MacKinnon’s beliefs nestled closely with an academic movement that was then being described, by its advocates as well as its critics, as “political correctness.” Michigan had already responded to the demands of pro-p.c. activists by imposing a campuswide speech code purporting to restrict all manner of discriminatory speech, only for it to be struck down as a First Amendment violation in federal court.

In Ann Arbor, MacKinnon had attracted a loyal following of students, many of whom copied her method of argument. The pro-MacKinnon students, upset over the display of pornographic video clips, descended upon Jacobsen’s exhibit and confiscated a videotape. There were speakers visiting campus for a conference on prostitution, and the video posed “a threat to their safety,” the students insisted.

Continue reading

Move On

From what I would assume to be a transcript posted by Jamison Koehler:

HEARING EXAMINER:  I will tell you right now, I do not, unless you have an expert here to testify as it relates to the field sobriety tests, unless you can provide that testimony through an expert –

DEFENSE COUNSEL:  — I have an expert right here –

HEARING EXAMINER:  — I cannot allow that line of questioning.

DEFENSE COUNSEL:  Let me try –

HEARING EXAMINER:  Because you are trying to get the officer to say that the tests are not peer-reviewed.  What does that mean? What does that mean to the officer?

DEFENSE COUNSEL:  I don’t care what it means to the officer.  What matters is what it means to you.

HEARING EXAMINER:  Right.  And so the officer says it wasn’t peer-reviewed, how do you refute that if you don’t have an expert?

DEFENSE COUNSEL:  I have an expert.  Right here.  The officer is an expert.  He has been certified multiple times in the administration of the test.  Otherwise he wouldn’t be qualified to testify. Continue reading