What do you know about highway checkpoints, other than preferring that you not end up in one?  Not much, and the police are counting on you not learning enough to beat them at their own game.  Checkpoint basics are fairly straightforward, sobriety checkpoints being lawful as long as they are conducted in a pre-determined random fashion, whether it’s every car or every sixth car.

Drug checkpoints, on the other hand, are unconstitutional. That means they can’t lawfully do them, though it doesn’t mean they can’t walk a dog around your car at a sobriety check point for kicks. But there is another trick with drug checkpoints that’s more interesting. Put a big sign on the highway that there’s a drug checkpoint ahead and see who avoids it. Cool trick, right?

From the Washington Post :

Police in the Cleveland suburb of Mayfield Heights know they’re not allowed to use checkpoints to search drivers and their cars for drugs.

So they’re trying the next best thing: fake drug checkpoints.

Police in the city of 19,000 recently posted large yellow signs along Interstate 271 that warned drivers that there was a drug checkpoint ahead, to be prepared to stop and that there was a drug-sniffing police dog in use.

There was no checkpoint ahead. That would be wrong. But is there anything wrong with fooling the unwary into taking evasive action and thereby creating a reasonable suspicion?  Some people pull to the side of the road, which would allow them to dispose of contraband. Sometimes there’s an exit before the checkpoint and they head off the highway. Some make a U-turn. To a hammer, these all look like nails.

Dominic Vitantonio, a Mayfield Heights assistant prosecutor, said the fake checkpoints are legal and a legitimate effort in the war on drugs.

“We should be applauded for doing this,” Dominic Vitantonio said. “It’s a good thing.”

And yet, he won’t be winning the ACLU’s Man of the Year award. Again. But it’s hardly a foregone conclusion that such conduct is “legal and legitimate.”  If cop was to threaten to beat a person senseless with his baton for fun, a sufficiently clear unlawful act (yes, Vitantonio?), in order to induce the person to either consent to a search, assault the cop in defense or flee, either way using his reaction as the basis to take further action against the person, would that fly?

Bill Peters, one of the four drivers pulled over as a result of the fake checkpoint, said he wonders if he was targeted because he has long, unkempt hair.

Four drivers? With results like that, who can blame the Mayfield police for being so aggressive. Society will be forever in their debt, as will hair stylists.

Peters, of Medina, said he was driving on the interstate when he missed his exit. He pulled over to check his phone for directions, then pulled back onto the freeway when his phone disconnected from the charger, causing him to pull over again to reconnect it, he said.

Soon after returning to the freeway, police pulled him over.

No drugs were found (of course), but this goes not so much to the legality of the tactic, but the fact that the actions of drivers may have nothing whatsoever to do with the phony checkpoint. Hammer, nail, directions. Or maybe they had always planned to get off at the next exit. Or maybe they forgot something and had to turn around. Or maybe they have to go to the bathroom and remember that fast food joint they just past. There are a ton of reasons why people do what they do having absolutely nothing to do with whatever the Hammers have in their heads.

The point being that the characterization of drivers’ conduct in relation to a phony checkpoint sign lacks any substantive basis in fact to give rise to a suspicion of anything.  But this, of course, doesn’t mean that it won’t suffice to persuade a court that it gave rise to reasonable suspicion. There’s the rub.

All it takes is for the cop to have a reasonable and articulable basis. It’s an extremely low threshold, and need not exclude the thousand others bases for people doing whatever the feel like doing, including deciding they just don’t feel like being party to a police checkpoint.

Can the cops create the scenario that gives rise to the actions or reactions that create the appearance of reasonable suspicion where none otherwise exists?  Given the Supreme Court’s approval of pretextual stops in Whren, it would appear they can. The standard is purely objective, whether the conduct can be justified without regard to any subjective belief or purposes on the part of the cops. 

The bottom line is that the police use lies in order to get people to give them what they’re looking for all the time, and the courts are more than willing to embrace this as a necessary weapon in the war on whatever war they are fighting today. 

Lawprof  Jonathan Turley appears to suggest that this is abusive and unlawful:

I would challenge any such stop. There are ample reasons for citizens to want to avoid police abuse, which is what the signs are promising since police cannot engage in such action.

The fact that the prosecutor, Mr. Vitantonio, supports such abusive practices shows a serious gap of judgment in this jurisdiction. He appears to believe that citizens should be stopped if they take any effort to avoid an act of police abuse. I hope that one of these four citizens will challenge their arrests and put Mr. Vitantonio’s theory to the test.

It strikes me that Turley is half right. While I agree that pulling such stunts on people driving down the highway is abusive and deliberately intended to undermine their constitutional rights, I fear that there is nothing unconstitutional about it. That doesn’t make it right, any more than the horrific Whren decision, which reflects constitutional doctrine that rewards police for being liars. But blaming Vitantonio for being a tool doesn’t change the fact that the courts similarly allow such abuse to happen under the guise of small inconveniences for the greater good of the War on whatever.

The best thing to remember is that drug checkpoints, at least, are unconstitutional, so should you see a sign alerting that a checkpoint is up ahead, drive on, dude. Drive on.

It’s not yet known whether there was a smoking gun in the jury room, but whatever is known, it’s not by the United States Attorney’s office in the District of Vermont.  And it’s just killing them. Bummer.

From  The Barre Montpelier Times Argus (that’s a name, right?):

Prosecutors are asking a federal judge to order the turnover of defense interviews with jurors who sat on the death penalty case against convicted murderer Donald Fell.

Judge William Sessions, who presided over the 2006 trial in the killing of Terry King of North Clarendon, decided in May to further consider a wide range of complaints contained in Fell’s latest appeal.

In a seven-page filing, prosecutors say defense attorneys have ignored their requests to turn over the interviews in advance of an August hearing on the appeals.

In the prosecutors’ motion, Assistant U.S. Attorney William Darrow wrote that the government was not made aware of the defense motion nor was it given the opportunity to respond to the request.

Prosecutors didn’t know about the interviews until months after they were completed, he wrote, because the judge ordered that both the motion and his decision be sealed.

“At this juncture, the government is completely in the dark about the facts and circumstances that led (defense lawyers) to request authorization to interview the jurors in this case and to the court’s subsequent order granting authorization (to the defense) to do so,” the motion said. “The government has no information with which to gauge the extent of the court’s authorization to (the defense.)”

U.S. Attorney Tristram Coffin said Tuesday it’s not uncommon for motions and decisions to be kept secret from either the prosecution or defense through the sealing of records.

But with the hearing in August closing in, Darrow wrote that his ability to prepare an argument about the alleged juror misconduct has been hamstrung after repeated requests to Fell’s New York attorneys have gone unanswered.

“The government simply cannot do its job blind,” he wrote.

Fascination spread across the blawgosphere as something that almost never happens happened in Henderson, Nevada.  Marc Randazza first pointed to the story from Courthouse News :

The Mitchell family’s claim includes Third Amendment violations, a rare claim in the United States….

The complaint continues: “Defendant Officer David Cawthorn outlined the defendants’ plan in his official report: ‘It was determined to move to 367 Evening Side and attempt to contact Mitchell. If Mitchell answered the door he would be asked to leave. If he refused to leave he would be arrested for Obstructing a Police Officer. If Mitchell refused to answer the door, force entry would be made and Mitchell would be arrested.’”

“As plaintiff Anthony Mitchell stood in shock, the officers aimed their weapons at Anthony Mitchell and shouted obscenities at him and ordered him to lie down on the floor….

“Although plaintiff Anthony Mitchell was lying motionless on the ground and posed no threat, officers, including Officer David Cawthorn, then fired multiple ‘pepperball’ rounds at plaintiff as he lay defenseless on the floor of his living room. Anthony Mitchell was struck at least three times by shots fired from close range, injuring him and causing him severe pain….”

Officers then arrested him for obstructing a police officer, searched the house and moved furniture without his permission and set up a place in his home for a lookout, Mitchell says in the complaint.

There are far more details (see the full Complaint, courtesy of Doug Mataconis), but the bottom line is the police wanted to use Mitchell’s home for their own purpose and arrested Mitchell for refusing to cooperate and took it over for their lookout of the neighbor’s house. Upon news spreading, law nerds began to salivate. Third Amendment! Do you know how rare this is?   They don’t call it “the forgotten Amendment” for nothing.

But as Ilya Somin points out at Volokh Conspiracy, it’s neither entirely clear that it actually is a Third Amendment case, nor that fighting the case on Third Amendment grounds is going to win the day.  First, cops aren’t soldiers, even if they like to dress up like them and play with soldier toys. On the other hand, there was no thing called “cops” back when the Third Amendment was enacted.

Second, since there haven’t been many Third Amendment claims made, the Supreme Court has never incorporated the Third under the Fourteenth Amendment to make it apply to the states. That doesn’t mean it won’t or shouldn’t, but just that it hasn’t yet happened.

Third, while the cops clearly seized Mitchell’s home for their own use, and arrested him because he didn’t love them enough to do as he was told, whether this is what is meant by “quartering,” or whether the transitory use of a house is sufficient to invoke the Third Amendment.  Quartering refers to the housing, such as barracks, where the soldiers would live. The cops weren’t looking to move into Mitchell’s house, but use it in the course of investigating a possible crime by a neighbor. Similar, perhaps, but not quite quartering.

Cool as it may be for lawyers and scholars to have a zebra in their midst, the likelihood of this case producing some serious Third Amendment law isn’t particularly strong.  The conduct of the police was clearly outrageous and flagrantly unconstitutional, but the Fourth Amendment is more than up to the task of sound basis for relief.

They entered, they seized, they assaulted, they searched, and they seized again, the home of Anthony Mitchell. This is a claim for damages for the violation of his constitutional rights, and the outcome of such suits is monetary relief. Assuming its all true, then the pressing question is less which amendment it falls under as whether it violates Mitchell’s rights under any amendment. And indeed, it does.

As for the ever-fascinating why question, why would they do this to a man who did nothing wrong other than not doing what the cops wanted him to do, Gamso offers a simple explanation:

Henderson is a suburb of Las Vegas.  The cops gambled.  They bet that they could do whatever they wanted and get away with it because, well, they were the cops.

In the spirit of Vegas, I’ll gamble and say that they won’t get away with it, but that the basis for their conduct being held to violate the Constitution won’t be the Third Amendment, with all its unanswered and difficult questions, but the Fourth. As cool as it may be to ponder the possibilities of new vitality given the forgotten amendment, I’m going with the odds as the house never loses.

Houston criminal defense lawyer Rob Fickman, whose Stetson just happens to fit me perfectly*, came up with an idea a few years ago. He thought that July 4th, Independence Day, would make a damn fine day for the reading of the  Declaration of Independence, adopted by the Continental Congress.

And so the  Texas Criminal Defense Lawyer Association began a program of reading the Declaration on the Fourth of July.  Yes, they actually do it on July 3rd at courthouses across Texas, but that’s only because everybody is home swilling beer and munching barbecue on the 4th, and there would be no one there to hear it.  But let’s not blow the concept over such minor details.

The readings have since spread across the country, with criminal defense lawyers reading the Declaration of Independence on the steps of more than 50 courthouses. 

Have kids? Have friends? Today would make a fine day to read the Declaration of Independence to them.

Have no friends or family? Then you have all the time in the world to read it to yourself.

Don’t have a copy handy?  The internet is here for you. Here’s the text of the  Declaration of Independence from the national archives.

And while the ribs are on the grill, and you have some extra time on your hands, you might want to consider reading the  United States Constitution as well. It couldn’t hurt.

Don’t worry if your beer gets warm. That’s how the Brits prefer it anyway, and without the Declaration of Independence, you would be working for them today, maybe for the East India Company doing doc review. Now do you appreciate the significance of the Declaration of Independence?  I thought so.
 


And if it wasn’t for our separation from England, we would never have been able to create a government that would give us this:



Now, get back to that beer. It’s not getting any colder, you know.

* This point was made abundantly clear to Fickman in a honkytonk bar, and yet Fickman failed to get the hint, proving that Texans are either selfish or hate Yankees.

A classic quote from the  police union business manager :

“Police officers have to make split second decisions in life and death situations and I don’t think that folks over at the Circuit Attorney’s office or folks up in Internal Affairs should second guess them based on their brief impression of a video tape,” says Jeff Roorda with the SLPOA. “It doesn’t tell the whole story,” he says.

Does it bring a tear to your eye, knowing what we put these cops through when they’re just trying to do a tough job under near-impossible conditions?  Completely understandable, since they do have to make split second decisions in life and death situations. But then, that wasn’t what was happening with St. Louis Police Officer Rory Bruce on February 20, 2012, which we know because there was dash cam video.

There was nothing life or death about the decision Rory Bruce made to pound this cuffed teenager in custody. Yet, he was acquitted by  Associate Circuit Court Judge Theresa Counts Burke.  Not because she found this conduct acceptable, but because she never watched the video. 

Prosecutors had also tried, but failed, to get the teenager on the stand. First they couldn’t find him, then when they did, he asserted his Fifth Amendment right against self-incrimination.

But the video never made it into evidence because the law required prosecutors to authenticate it with someone who had personal knowledge of the events. Bruce refused to testify against himself, on the same constitutional grounds as the teen.

The teenager involved was never charged, leaving the prosecution with nothing to trade off for his testimony. As for doing the right thing against Bruce, well, the right thing on the street can sometimes be a bit different than what some of us might hope for.

But what of the other officer present, Bruce’s partner, Jacob Fowler?

That left Fowler, who claimed the same but was forced to testify after prosecutors granted him immunity from charges and obtained a last minute order from another judge.
When Fowler viewed the footage, he testified it differed from his recollection of events.

Maybe he recalled rainbows and unicorns. Who knows? What he clearly didn’t recall was anything that could be used against his partner. What a surprise.

Burke ruled he thus couldn’t authenticate it. That left only the testimony of a few police employees, who couldn’t say much because of hearsay rules.

The Circuit Attorney, Jennifer Joyce, apparently argued that the video was self-authenticating:

She said the video, filmed from a police cruiser, “speaks for itself.”

Actually, it doesn’t speak at all if no one in a position to decide Bruce’s guilt sees it, no matter how loudly it speaks to the rest of us.  Were the judge’s hands tied by the rules of evidence, forcing an acquittal in the bench trial for lack of evidence?  Should the video have been admitted under the business record exception, for example?

This is where the rules of evidence, the ones that protect a defendant from unreliable, tampered, partial/misleading proof, turn around to bite us on the butt. Because the defendant here was a cop, and the video so damning (even though it never tells the whole story, like how the other children made fun of Rory as a kid), should the rules of evidence be relaxed when we might really hope a bad cop gets burned?

Bear in mind, the same rules of evidence that apply to Bruce apply to anyone else.

And yet, union spokesman Roorda can’t help but gild the lily:

“You’ve got a guy who has twice skated on serious charges all in the interest of prosecuting a police officer on a misdemeanor where the only evidence is video that exonerates him,” Roorda said in a prepared statement. “This is more than a case of prosecutorial indiscretion; it’s a case of prosecutorial vanity.”

So this video exonerates him, Jeff? It may not have been admissible in a court of law, but it surely is in the court of public opinion, and it’s not likely that anyone watching the video will be giving him a good cop medal.  Naturally, the union is asking that Bruce, who was fired as a probationary officer, be reinstated now that he’s been found not guilty.  Hasn’t he suffered enough?

Reading Peter Moskos’  review of Radley Balko’s new book, Rise of the Warrior Cop, one thing stuck out like a sore thumb.  Moskos, a former police officer and now professor at John Jay College for Cops, wrote:

Balko carefully prefaces his argument by noting that it isn’t, at its core, “anti-cop.” I suspect this is because he hopes to convince as many people as possible. As a former police officer, I have my doubts. Balko asserts that most police officers regularly commit felonious perjury. Lying, he writes, is “routine,” “expected,” and “part of the job.” He supplies little evidence for this claim – an absence that is particularly notable because the rest of his book is so meticulously researched and thoroughly footnoted. “Bad cops are the product of bad policy,” he warns us. But this is too glib. Bad policy creates bad policing. Bad police, however many there may be, are a separate problem.

The story of University of Virginia sorority gal, Elizabeth Daly, having been swarmed by a half dozen ABC agents, raised hackles and dismay for the absurd excess of the faux-cops, who were given guns without guidance.  As explained by Brian Doherty at Reason,

A group of state Alcoholic Beverage Control agents clad in plainclothes approached her, suspecting the blue carton of LaCroix sparkling water to be a 12-pack of beer. Police say one of the agents jumped on the hood of her car. She says one drew a gun. Unsure of who they were, Daly tried to flee the darkened parking lot.

“They were showing unidentifiable badges after they approached us, but we became frightened, as they were not in anything close to a uniform,” she recalled Thursday in a written account of the April 11 incident.

We know that, in theory, citizens have some rights vis-a-vis police. But in practice, does it make sense to simply submit to any person waving a badge?

The  New York Times reports that the Railroad Retirement Board, apparently unable to cut off benefits to former Long Island Rail Road workers on disability fast enough when each form had to be stamped by hand, has decided instead to unilaterally cut off workers en masse.

About 600 Long Island Rail Road retirees will lose their disability benefits after a federal agency voted last week to halt the payments, amid a sweeping investigation into what prosecutors have called a major disability fraud scheme, according to agency documents and officials.

The agency, the United States Railroad Retirement Board, which over more than a decade granted disability benefits to hundreds of railroad retirees based on fraudulent medical evidence with little scrutiny, took the action on Thursday during a five-minute meeting at its headquarters in Chicago. The vote approved procedures under which the board will cut off the benefits, which, officials said, are costing the agency $2 million a month.

As reported in local newspapers and on websites, the RRB has taken an action to discontinue disability annuities for 600 retirees who were treated by Dr. Peter Ajemian. Newspaper headlines and articles are not under our control, and we regret any confusion to employees or retirees caused by today’s press coverage.

LIRR has no information about the identity of the 600 retirees affected by the RRB action or whether these retirees engaged in fraudulent activity while employed at the railroad, and LIRR has made no determination regarding their pension status.

Pension forfeiture for those employees found to have engaged in fraudulent or criminal activity while employed at the LIRR is not an automatic procedure and cannot be invoked without following an administrative process and procedure on a case-by-case basis, including, for those represented employees in the closed plan, an appeal process to an independent arbitrator.

Railroad work is physically demanding, and LIRR employees have distinguished themselves time and again with their hard work and dedication in all kinds of weather and under very challenging conditions. LIRR believes that RRB disability annuity is an important benefit that should be reserved for those railroad employees who are truly disabled.

Remember the good old days, when prosecutorial misconduct was dealt with by just a wink and a wrist slap? No, not last week, but 20 years ago. Truth be told, there wasn’t even a wrist slap back then. And barely a wink. Because of this, the  Supreme Court of Oklahoma has decided to apply the rule of lenity to the misconduct of former assistant district attorney Robert Bradley Miller, even though the state bar association would disbar him.

Via Jonathan Turley :

The Oklahoma Supreme Court has rejected a request from the state bar association to disbar Robert Bradley Miller, former assistant district attorney for Oklahoma County, and given him just a suspension from practicing law for 180 days and court costs for egregious misconduct in two capital cases twenty years ago. We have often discussed the lack of deterrence for prosecutors who are rarely disciplined for conduct leading to reversals or false convictions. In this case, the bar wanted Miller out of its ranks for hiding a key deal with a witness and using falsified subpoenas to coerce cooperation from other witnesses.

The novel defense — accepted by the state Supreme Court — was that lots of prosecutors acted abusively back then.

Hindsight is 20-20. Instances of prosecutorial misconduct from previous decades, such as withholding evidence, were often met with nothing more than a reprimand or a short suspension.40 Some scholars writing during that time theorized that discipline was imposed so rarely and so lightly that it was not effective in deterring misconduct. Reprehensible though Miller’s conduct may have been, and even if such misconduct is punished more harsly [sic] when it occurs now, Miller’s actions took place decades ago and it would be unfair to hold him to a harsher standard than he would have been subjected to when his actions took place.

Make no mistake, if this conduct were to happen today, the punishment would have been much more severe. This is not to say that the Court condones his conduct, merely that we are not inclined to apply the harsher standards of today to conduct that occurred at a time when it was punished lightly, if at all.

Dawn Porter sought to tell the story of public defenders. Not all, not the ones who gave up caring, but the story of three PDs in the deep south, Clayton County, Georgia, who struggled to hold on their purpose and integrity in the face of their reality.  They are Gideon’s Army,

The film, a Sundance Film Festival award winner for documentary editing, offered a strikingly honest vision of the world of the public defender. Premiering on HBO last night*, it follows three PDs through their banal existence in the trenches.

Brandy Alexander, Travis Williams and June Hardwick have dedicated themselves to defending those who otherwise would not receive representation, contending with a day-to-day life of low pay, long hours and staggering caseloads. Despite these obstacles, with the help of the Southern Public Defender Training Center (SPDTC), these young professionals are inspired to take on this unique challenge in the name of public service.