When television executives decide to put a show on the air like Lie to Me*, you can bet that they believe that people will be fascinated by the concept.  The possibility that it may cause the next generation CSI-Effect isn’t their concern, nor should it be.  They are in the business of entertaining us and selling advertising.  Enlightenment, if any, is purely collateral.

But the general fascination with lying, or more particularly how to tell if someone is lying, has been with us forever.  Lying, a pervasive human trait proven necessary for the propagation of the human race, covers a broad spectrum of human conduct, much of it quite acceptable and even salutary.  Then, of course, there are the nasty ones that happen when someone, oh say a cop, wants to put someone, oh say a defendant, in prison.  In fairness, it happens the other way around too, lest we forget.

Forbes Magazine has entered the fray with a story about how to tell if someone is lying.  Melanie Lindner’s article, replete with equivocation in almost every paragraph, sums up a set of 11 rules to “sniff out a liar.”  According to the piece:

“Regardless of how you try to explain to people it’s a ‘war on drugs’ or a ‘war on a product,’ people see a war as a war on them,” he said. “We’re not at war with people in this country.”

Prior administrations talked about pushing treatment and reducing demand while continuing to focus primarily on a tough criminal-justice approach.

Mr. Kerlikowske was most recently the police chief in Seattle, a city known for experimenting with drug programs. In 2003, voters there passed an initiative making the enforcement of simple marijuana violations a low priority. The city has long had a needle-exchange program and hosts Hempfest, which draws tens of thousands of hemp and marijuana advocates.

We are bombarded with images these days, given the ubiquitous cameras on every cellphone and many lamp posts, showing us the many thousands of isolated instances of wrong doing that were easily deniable before.  But few images had as strong an impact as this photograph posted by Radley Balko at The Agitator.



No, these aren’t the newest LAPD SWAT team trainees.  These are the children of the Explorers, an arm of the Boy Scouts of America, from Imperial, California, as profiled in the New York Times.

[W]hile adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court, so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95 percent of the cases — what matters on the Supreme Court is those 5 percent of cases that are truly difficult. In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.

One approach is to see legal ambiguity as cause for judicial weighing. This view sees the role of the judge as narrow. The judge must weigh the best legal arguments on one side and the best legal arguments for the other, and must pick the side that has the better of it, no matter how slight the advantage.

The other approach is to see legal ambiguity as cause for judicial empowerment. This view sees the judge as dutifully following the law when the law is clear. But as soon as there is some ambiguity, and the law is unclear, then the judge is free to decide the case however he wants.

Gale and Sheila Muhs, of Liberty County, Texas, aren’t a good looking couple.  In fact, they are quite unattractive, even more so in their mug shots.  So it comes as no surprise that they were both easily annoyed and overly protective of the few things that were theirs.  This cost a 7 year old boy his life.  The Muhs’ had a shotgun.

From the Houston Chronicle :

Donald Coffey Jr., his father and friends were on their way back from joy riding near a levee and swimming in the Trinity River around 9 p.m. Thursday when homeowners Gale and Sheila Muhs fired at them with a 12-gauge shotgun, police say.

The men stopped to use the bathroom and got out of the Jeep near the Muhses’ home in the Westlake subdivision south of Dayton when a woman’s voice boomed through the darkness, Nelton said.

In a message peppered with expletives, she said, the voice ordered the group to get their vehicles off the property.

“And then I heard a shot and our windows were blown out,” Nelton said.

Donald Coffey Jr. was shot in the face, and later died.  Sheila Muhs felt entirely justified. 

Meanwhile, Sheila Muhs — whose home is fronted by a sign warning: “Trespassers will be shot. Survivers will be reshot!! Smile I will” — had called 911. Bishop said the woman told a dispatcher: “They’re running over our levee in big-wheel vehicles, and I shot them.” Officials have not released the 911 tape.

Now I’ve been told in the past that I just don’t understand how people think in Texas.  I admit it.  I don’t.  Is it their desperate love of property rights, the same that makes them feel that their Castle Doctrine should entitle them to kill at will anyone who breaches their doublewide?  Is it that they consider life so cheap that it’s barely worth a shrug when they take it, whether from those sentenced to execution or 7 year old children?  My Texas friends are right.  I don’t get it.

The stories don’t quite explain what Donald Coffey was doing on the Muhs’ property.  Was he peeing in the bushes or “big-wheeling” over their levies.  Was he doing harm to the property or simply touching it when the Muhs’ didn’t want anyone touching it.  I can’t tell.  But regardless, was it worth a death sentence?

Texans tell me that they have a fierce love of freedom, one that they are prepared to kill for.  It seems to me that they are prepared to kill for a lot of things, and that each individual Texan feels entitled to decide for himself what he’s entitled to do.  The Muhs thought their right to kill someone was not only so clear that they shot at will, but so funny that they put up a sign to reflect their sense of humor.  In other places, these people would be considered diseased. 

We regularly hear that every infringement on personal freedom finds justification “for the children,” which of course is nonsensical most (though not all) of the time.  It can be said of pretty much anything, and usually is, though the children excuse, aside from being cliché, usually bears little rational connection to the freedom infringed.  This time is different.  We know that because these two unattractive people killed a 7 year old.  Aren’t they proud of themselves for pulling the trigger on their shotgun?  Aren’t they so very Texan?

The machismo reflected in the attitude of those who see life as so cheap may not be quite as macho after this.  It doesn’t take a he-man to shoot a child.  Over an alleged trespass.  No threat of burglary or harm, just a simple trespass.  It seems that a little boy had to pee, not necessarily something one would want to happen on your property, but not quite worthy of a killing.

Are you proud of your son and daughter of Texas?  Does it make you feel righteous to fire a shotgun at a trespasser in the dark?  Can my Texas friends shrug off the death of a 7 year old, under the “he needed killing” theory?  It’s time to reassess just how willing people are to pull the trigger whenever something annoys them.

As previously promised, our hinterlands correspondent Kathleen Casey snuck into the Ryan Smith hearing to find out why police chose to taser Smith in order to collect a DNA sample to make up for the one he had previously given but they lost.  I am happy to report that she emerged physically unscathed, although she did suffer something akin to TMJ from stifling laughter in the courtroom.

Unfortunately, ADA Doreen Hoffmann never made it to the witness stand as Patrick Balkin, the defense lawyer, was satisfied that she was neither asked, nor told, that the cops planned to taser the DNA out of his client, and only learned of the details after 50,000 volts was spent.. 

So how did the cops reach the decision to use a taser to persuade the defendant to give up his spit?  From the Buffalo News :

In testimony contrary to what was written in a police report, Detective Lt. William M. Thomson said he was told by Assistant Niagara County District Attorney Doreen M. Hoffmann “we could use the minimum force that was necessary” to compel Ryan S. Smith to submit to a DNA sample while he was being detained by police.

Officers discussed different methods of forcing Smith to give the sample, including prying open his mouth with their hands, but the decided the Taser “would be the safest way,” testified Officer George W. McDonell, who administered the shock.

See, you cynics.  They were just trying to protect Smith.  And you thought it was some nefarious scheme to play with their tasers and teach Smith, who refused to comply for 20 minutes, that it’s not nice to disobey cops. And McDonell was no doubt correct, that a taser is far safer than the standard beating the crap out of the perp with batons (which also happens to leave marks).

During their testimony, McDonell, Sykes and Galie said Smith had refused numerous times to submit to the swab. They said Smith told them that if they wanted the sample they were going to have to shock him with a Taser.

Ding, ding, ding.  Taser!  Say, fellow officers.  Why didn’t we think of that.  And now, he’s requested it.  Right? I mean, he did say that we should shock him with a taser, didn’t he?  That’s like giving permission, right?

McDonell testified he gave Smith a “dry stun” — referring to what police call a “less effective” shock that doesn’t shoot prongs from the Taser into the recipient — to his left shoulder for about 1 to 2 seconds. The normal length of time a person is shocked is five seconds, unless the officer manually stops the equipment, McDonell testified.

After the shock, Smith complied with their request to take a mouth swab, they said.

There nothing like a taser to get someone to voluntarily comply, ya know.

After the sample was taken from Smith, he was charged with criminal contempt, “because of the means that it took to get him to comply,” McDonell said.

After all, they were forced to taser him first, and the officers will suffer the trauma for the rest of their lives.  Someone has to pay for their psychic pain.

Now the refusal of a defendant to comply with a lawful court order would ordinary subject the defendant to criminal contempt, entitling the cops to arrest and jail him until the judge determines what to do about it.  But that would be no fun at all, and this group of cops certainly needed to have some fun after the emotional drain of watching their partner and buddy, Officer Ryan G. Warme, humiliated by the feds when he was nabbed for conspiracy to distribute crack.  Unfortunately, Warme was unavailable to testify at the hearing. 

And besides, Smith asked for it.

On a serious note, the choice of using a taser to subdue Smith to obtain his “compliance” was the product of this groups of fine police officers and detectives putting their heads together and carefully, deliberately and rationally thinking through their options and selecting the one that, in their view, best suited the situation.  This is what comes of giving police officers discretion in how best to protect and serve.

In a lengthy split decision, the New York Court of Appeals has reversed the denial of suppression where police placed a GPS tracking device called a “Q Ball” on a car in People v. Weaver.  In a 4-3 decision authored by Chief Judge Jonathon Lippman, the Court rejected the argument that GPS tracking was merely an extension of a police officers acknowledged right to observe a vehicle on a public road.

With the addition of new GPS satellites, the technology is rapidly improving so that any person or object,such as a car, may be tracked with uncanny accuracy to virtually any interior or exterior location, at any time and regardless of atmospheric conditions. Constant, relentless tracking of anything is now not merely possible but entirely practicable, indeed much more practicable than the surveillance conducted in Knotts. GPS is not a mere enhancement of human sensory capacity, it facilitates a new technological perception of the world in which the situation of any object may be followed and exhaustively recorded over, in most cases, a practically unlimited period. The potential for a similar capture of information or “seeing” by law enforcement would require, at a minimum, millions of additional police officers and cameras on every street lamp.

While it’s difficult to discern the dividing line, the Court held, under the state Constitution which it reaffirmed to be more protective than the federal Constitution, that technological intrusion into the realm of personal privacy has its limits, no matter how good an analogy can be crafted to argue that it’s just the latest flavor of what police have been allowed to do all along.

It would appear clear to us that the great popularity of GPS technology for its many useful applications, may not be taken simply as a massive, undifferentiated concession of personal privacy to agents of the state. Indeed, contemporary technology projects our private activities into public space as never before. Cell technology has moved presumptively private phone conversation from the enclosure of Katz’s phone booth to the open sidewalk and the car, and the advent of portable computing devices has re-situated transactions of all kinds to relatively public spaces. It is fair to say, and we think consistent with prevalent social views, that this change in venue has not been accompanied by any dramatic diminution in the  socially reasonable expectation that our communications and transactions will remain to a large extent private.

While leaving open the possibility, indeed probability, that there will be exigencies where a GPS device can be used without a warrant, Judge Lippman nonetheless affirms that we haven’t forsaken all rights to privacy by turning on the ignition, and that even in automobiles we retain a reasonable expectation of some privacy.

It is, of course, true that the expectation of privacy has been deemed diminished in a car upon a public thoroughfare. But, it is one thing to suppose that the diminished expectation affords a police officer certain well-circumscribed options for which a warrant is not required and quite another to suppose that when we drive or ride in a vehicle our expectations of privacy are so utterly diminished that we effectively consent to the unsupervised disclosure to law enforcement authorities of all that GPS technology can and will reveal.

The Weaver decision is a hugely significant decision on many levels, ranging from the internal division amongst the judges on the issues of search and seizure, technology, automobile exception, state constitutional breadth and deference to law enforcement.  With Judge Lippman in his new seat at the center of the bench, this decision provides a critical insight into where the Court of Appeals places constitutional rights in general, and how they view use of perpetually more intrusive technology in law enforcement.

The opinion explains its rejection of GPS as just another pair of eyes based upon its degree of intrusiveness into the lives and movement of the individual, which is unlikely to provide much guidance for the next techno-enforcement trick to find its way into the police arsenal.  It does, however, suggest that the Court, by a slim majority, is unprepared to let the scope of constitutional rights be dictated by technological advances rather than the preservation of personal privacy.

Unfortunate though the wiggle room remains for future exceptions may be, the clear message is that the New York Constitution still considers personal privacy, even in an automobile, worthy of protection, and that they will not blindly accept the intrusiveness of new technology to diminish constitutional rights.  A very encouraging decision, and one that every New York criminal defense lawyer should read.

Anyone who has ever done a motion to suppress a dog alert is likely to be well aware of the many variables, not to mention foibles, of drug dogs.  They aren’t nearly as perfect as most people think, subject both to fairly common false positive alerts as well as the indications of their handlers to “alert”, itself a curious choice of descriptions, whenever they want them to get excited.  Yet, when a drug dog alerts, humans with robes throw up their hands and accept it as conclusive.  We so love things that take responsibility for decision-making out of our hands.

But what about the human nose?  There’s no myth attached to the human ability to smell.  Unless, of course, the nose is attached to the face of a police officer.  Then, like the other senses that far surpass those of mortals, it can achieve almost dog-like abilities.  David Tarrell at In the Moment got me thinking about this when he posted about passing “The Smell Test.”

I read a police report the other day in which a search warrant was procured after an investigator allegedly “smelled” raw marijuana when his allergies flared up after he entered a house. Another time, in misdemeanor DUI case, the judge denied the motion to suppress I filed after a cop smelled marijuana while sitting at a stop light and my client cruised through the green light with the window rolled down. When he denied the motion, after I argued the impossibility of such “probable cause,” he commented that I must not have been around pot very much. (How was I supposed to answer that question? Maybe he was just mad at me for asking the cop if he drove, Ace Ventura-style, with his head out the window?)

Having had my share of cases involving an officer’s discovery of marijuana by scent, and having discussed the possibility of this with a variety of people who are far more knowledgeable on the subject than me, two questions arose.  First, stemming from David’s experience, I can’t help but wonder what personal experience the judge possessed for him to suggest that David hadn’t been around pot very much.  If a defendant said something like that, you can bet that it would come in as an admission.

Perhaps the judge was speaking from the experience in the courtroom, where pot comes into evidence at trial.  Of course, by the time of trial, the marijuana is a putrid mass of decaying vegetable matter, emitting a strong, often sickening odor.  Just so I’m clear, this isn’t about the seizure of a joint, but large quantities of growing or fresh-cut marijuana; raw, unburning marijuana.  I suspect that few judges have much experience with the fresh stuff, and confuse the odor of the stuff a year later, having been kept in sealed plastic bags, with the smell of green pot on the stem. 

In almost every instance, there is testimony of a police officer about the strong odor of this fresh marijuana, which invariably leads them to search and discover it, whether it’s in a grow house, car trunk or suitcase.  No matter that it’s perma-sealed in airtight containers.  The odor, as judges apparently believe, escapes nonetheless whenever a police officer comes near.  This has long been a source of amusement  for defense lawyers.  Probably for cops as well.

The second issue is that absence of any good research, or viable expert, to dispel this ridiculous claim that police officers can smell fresh marijuana, while the rest of us cannot.  I’m not sure that this falls into the same category of “furtive movements,” that old saw that can never be disproven and invariably rears its ugly head whenever a cop can offer no other explanation for pistol whipping a perp.  There is objective evidence relating to marijuana, such as the place its found and the manner in which it’s sealed.  Consequently, there should be a way to put police claims to the smell test.

The problem, obviously, is that the people I know who know exactly what odors are emitted by large quantities of fresh marijuana aren’t inclined to offer testimony.  There’s even a question as to whether they would be allowed to testify as experts, though no rational person would question their expertise.  But these experts inform me, each and every time, that the cops are full of it.  There is no possible way their claims could be true.  Not even close.  Yet judges, who have heard them repeated with great frequency, know better.  As did David’s judge, they look down from on high, smile and mutter, “silly lawyer who doesn’t know as much about marijuana as I do.”  Hahaha.  Suppression denied.

It’s bad enough that the law bridges its own logical gap through the facile use of legal fictions.  It;s the factual fictions, the ones that conclude that the earth is flat no matter the truth may be, that drive people nuts.  In the absence of empirical proof that a police officer’s alleged mystical nose cannot smell the scent of fresh marijuana through vacuum sealed packaging, within a sealed container, through glass windows and more than a mile away, we are left with the testimony of a cop that he did so and the “inside knowledge” of a judge that fresh cut marijuana can stink up a courtroom like nobody’s business.

If only there were some aggie profs who would dedicate their professional careers to the empirical study of cannibis sativa.  Or maybe there’s a nose expert out there who can fill the gap.