The virtue of having a video of police encounters has been proven over and over, whether because it belies the allegations of a crime or proves them. But then, sometimes the guy with his finger on the dashcam’s “on” button may not want evidence of what is about to happen.  Via NJ.com :

Allen Bass, 50, sued Trooper Gerald Dellagicoma and others in 2009, claiming they punched and kicked him multiple times, causing him to urinate on himself, after he complied with their commands to get off his bicycle at Ellis Avenue and Clinton Avenue in Irvington a year earlier.

Bass was charged with various drug offenses that were later dismissed.

It would appear that the drug charges were dismissed when the troopers failed to appear for trial.

The jury in the Bass case found no merit to the allegations that Dellagicoma arrested him without probable cause and subjected him to a malicious prosecution. The jury also found no wrongdoing by the other troopers involved, Christopher Mills and Miguel Holguin.

And what was Bass doing that gave rise to this encounter?

[Bass] was riding his bike July 10, 2008, in Irvington when Dellagicoma and other troopers who were on patrol in the area got out of their patrol cars and ordered him to stop. Bass claimed he laid on the ground chest-down and spread his arms and legs.

Troopers allegedly then punched and kicked him before arresting him. Bass was charged with drug possession, resisting arrest by flight and resisting arrest by force, court documents show.

What makes this special is that in New Jersey, there is a requirement that arose from the racial profiling scandal that rocked the Turnpike, that all encounters with State Troopers be videotaped.  The state was kind enough to put cameras in cruisers. Never again would a trooper be falsely accused of profiling a driver just because he was black. (This is known as the “black plus” theory of profiling.)

Except Trooper Dellagicoma didn’t turn on his camera. Oops.

Court documents show Dellagicoma, who joined the force in 2001, failed to activate his patrol car camera and was suspended without pay for 30 days, but only served 15 days of that suspension. Records show Dellagicoma was reprimanded several times prior to the incident for the same infraction.

The plan seemed foolproof. Give troopers cameras and require them to use them. If they don’t, there must be consequences. And consequences there are.

The videos are often critical to proving allegations of wrongdoing, as well as protecting troopers from false public complaints. But not activating a camera is considered by the State Police to be a minor infraction punishable by a written reprimand and a suspension of only a few days.

Of course, the consequences aren’t nearly as severe as the consequences suffered by Allen Bass. Or severe enough to make Trooper Dellagicoma actually turn his camera on. Several times.

The utility of video in revealing what really happens when cop encounters citizen can’t be understated, as it has fundamentally changed our understanding and appreciation of the ugliness on the street.  Before, we relied on the sanitized, fantastical descriptions given by police officers on the witness stand, where they never uttered a mean word and were invariably professional and courteous in every interaction.  It wasn’t their fault that the perp ended up with a gun-shaped bruise across his left cheek. He must have attacked the gun with his face. It can happen, you know.

But to ignore the hitch, that the cop may have the unfettered ability to record the encounter and, for whatever reasons (“Gee, I forgot,” testified Officer Smith), failed to do so, is an untenable problem.  The efficacy of video depends on its actually being used, in every instance and including the entire encounter.  Anything less reduces it to a game, where the police make the rules, and the rules will not be good for the other side.

The only way an incentive system works is to make the cost of noncompliance greater than the cost of compliance. Apparently, a written reprimand and a few days suspension doesn’t cut it. And when it happens repeatedly, it is clearly failing to serve as a deterrent.  That’s not good enough.

It’s not Allen Bass’ fault that the encounter with troopers wasn’t recorded.  People aren’t ready, as they ride their bike down the road, to record a chance encounter with police. Maybe they should be, but most of us go through our daily routines without need to be capable of videotaping a shocking encounter at any moment.

That the troopers failed to do so is inexcusable, and reflects a failure of both the concept and the execution. If there is a rule that every encounter must be captured on video, then there must be muscle behind the rule that makes the failure to do so count.  And when a cop refuses to follow rules repeatedly, he’s telling you that you made a bad decision as to who is sufficiently trustworthy to wear a shield and carry a gun.

Video is a great thing.  But only if it’s used. And when the person you entrust to use it happens also to be the sort of person inclined to beat people for fun, then having a video rule probably isn’t sufficient to address your problems.

H/T FMK

An interesting argument broke out after Carolyn Elefant posted an open letter to New Lawyers at My Shingle :

At 48 years old, I am old enough to be your mother.  And you should be ashamed of yourself.  Here you are, coming to me for a legal job when you don’t know the first thing about RSS feeds, blogging (reading them, let alone writing them), Twitter, Pinterest or YouTube.  And what’s more, you have no comprehension of the importance of these tools to my practice and seemingly no interest in learning how to use them.

Just out of law school, your skills are of minimal use to me.  Nothing you research or write will be worthy of filing without significant oversight and feedback. And that’s okay. 

But what I can’t abide is having to teach you how to tweet about current events.  How to set up an RSS feed. How to track and stay on top of news from two or three industry blogs.  Supposedly, you grew up on this stuff.  So why do you need to take instructions from someone old enough to be your mother on how to use tools that should come as second nature?

As you point out, I have grown up around technology. I had my first cell phone in 2000. I joined Facebook when it was only open to other college students. I joined Twitter briefly when it first came out, and even had a Blogger account at the end of my college career. During this time I was also trying to pass exams and figure out my life. Then I spent three years learning the law. I’ve spent the last two figuring out starting to figure out how to be a lawyer.

In contrast, you’ve had the last twenty years to understand how law and technology fit together. You were already in law school when the Apple Macintosh was released. That means you’ve had the last thirty years to learn about new technologies as they develop. More importantly, you’ve been able to slowly incorporate those technologies into your practice. If you haven’t found a video solution that you like, or a system to stay up-to-date on industry developments, why should that be my problem? Why am I expected to have your solution?

Of all the crimes that raise fear, dread and disgust, none is worse than pedophilia, the sexual abuse of a child by an adult.  And this explains why police have taken such an incredibly aggressive stance in trying to root out this disgusting crime, particularly on the internet, which has proven to be a boon to pedophiles seeking to find unsuspecting teens in chatrooms, ripe for their wiles.

And so an undercover Worcester, Massachusetts officer hanging out, pretending to be a 14-year-old girl, just waiting for something juicy, happens upon this chat :

Latenightcop171 — So you want to learn things

Undercover — What can you teach me

Latenightcop171 — Lot of things

Latenightcop171 — We’d have sex

Undercover — Of course silly, but anything special or weird.

How can you explain the abrupt termination of the online conversation in which Mr. Shea appeared to have been deeply engrossed in a highly improper chat-room encounter with an undercover officer, whom he believed to be a 14-year-old girl?

committed several violations, including incompetence, neglect of duty and conduct unbecoming an officer.

Mr. Shea resigned before the investigation, in which all allegations were sustained, was completed. He is free to receive all retirement benefits.

Following  my dismissal of the same old ideas for fixing the criminal justice system,  Radley Balko twitted “Why is it a bad idea for the state to pay the legal costs of people who are acquitted?”  He went on to twit, “Even [if] there’s no larger effect, seems like a just policy.”

Unfortunately, this happened on twitter, so that readers weren’t aware of his questions, and there was no ability to explain with any degree of depth. As fun and easy as twitter may be, it’s not a good medium for thoughtful discussion. For this reason, I refuse to start something on twitter that’s either doomed to fail or merely incapable of doing any more than scratching the surface.

But if Radley questions why this proffered fix shouldn’t be given a try, I assume others do as well, and it’s worthy of a real response.  In Glenn Reynolds’ 6-page opus, he explains this fix:

Another remedy might be a “loser pays” rule for criminal defense costs. After all, when a person is charged with a crime, the defense – for which non-indigent defendants bear the cost – is an integral part of the criminal justice process. For guilty defendants, one might view this cost as part of the punishment. But for those found not guilty, it looks more like a taking: Spend this money in the public interest, to support a public endeavor, or go to jail. To further discipline the process, we might pro-rate things: Charge a defendant with 20 offenses, but convict on only one, and the prosecution must bear 95% of the defendant’s legal fees. This would certainly discourage overcharging.

There’s nothing like a case that captures the interest of the internet to be a never-ending source of fodder for ideas that have been said before and opportunistically said again.  Sadly, Aaron Swartz’s suicide is being used as such an opportunity. 

Randy Barnett at Volokh Conspiracy, offers  a “terrific” short “scholarly” paper by  Instapundit Glenn Reynolds, oddly entitled  Ham Sandwich Nation: Due Process When Everything is a Crime (without giving credit to former New York Chief Judge Sol Wachtler for the “ham sandwich” reference), together with a concurrence in The Atlantic by Conor Friedersdorf called 8 Ways to Stop Overzealous Prosecutors From Destroying Lives, who also mentions “legal scholar”  Orin Kerr’s VC post that Swartz’s prosecution was “business as usual in federal criminal cases around the country — mostly with defendants who no one has ever heard of and who get locked up for years without anyone much caring.” This was not exactly a new concept, but I digress.

Gideon at  A Public Defender has already made the obvious point, that the “legal scholars” have trotted out the usual assortment of bad fixes:

The Atlantic piece – and by extension Reynolds’ brief – are a listing of the usual bad ideas – make the state pay the legal bills of acquittees, ban plea bargains altogether (NO! BAD DOG!) – thrown in with some good ones.

Two of the ideas proposed by Reynolds (and one by Orin Kerr) deserve scrutiny: giving prosecutors only qualified immunity for their actions and that too only when they act in bad faith (after all, like the law and order crowd likes to say: if you’ve done nothing wrong, you’ve got nothing to fear) and the more intriguing idea: permitting juries and judges to know of plea bargains when sentencing.

When  first I checked out the offerings of Justin Peters, whose bona fides to run a blog about crime were somewhat lacking, it was largely tongue-in-cheek.  On the up side, the content was salacious crime stories that were the legal equivalent of an in-depth TMZ story about Lindsay Lohan. On the downside, he was writing for Slate, one of the big kahunas of the interwebz.

That meant a lot of people would read it, far more than any blog written by a lawyer who was educated, experienced or knowledgeable about the law. But as long as it was just dopey fluff, so what? It’s not like people hadn’t been fed stories that illuminated nothing forever. So what if there was a new player in town?

But people, being the way they are, confused the fact that Justin Peters wrote a blog about law with his having anything remotely resembling knowledge of law, the I-play-a-doctor-on-TV syndrome, and did the unthinkable :

Not that it’s the only place where corruption happens, but it almost seems to be part of the culture.  After all, when Assistant District Attorney Greg Williams stumbled onto a corrupt scheme to pocket big money from drunk drivers to dismiss their case, he had two choices: Blow the whistle or get his cut.

Via TheNewspaper.com :

Lafayette’s district attorney had set up a program of “immediate 894 pleas” for those accused of DUI who had completed 32 hours of community service, substance abuse programs and driver safety classes. Participants in this generous program received a special session in a judge’s chamber, outside the normal court process, where charges are dismissed as long as no other violation is committed during a probationary period. In 2008, the district attorney’s secretary, Barna Haynes, realized she could set up these hearings and began arranging them for the co-conspirator, who represented clients even though he was not actually a lawyer. The unnamed man charged up to $5000 for each acquittal, out of which he paid Haynes $500 per case for her assistance. Haynes collected more than $70,000 in cash until she was caught. Clients had paid hundreds of thousands for the special treatment allowing them to keep their driver’s licenses and retain a clean record.

Beginning in January 2010, Williams realized what was going on and decided to cut himself into the deals. He used his own secretary to set up “immediate 894 sessions” with a judge and the co-conspirator. Curry collected eight cash payments of $200 for her participation. The co-conspirator rewarded Williams with autographed New Orleans Saints items, bicycles for Williams and his family, business suits, shoes and $500 in cash.

As the U.S. Attorney’s Office continues to press its bribery case against former employees of the Lafayette Parish District Attorney’s Office, the number of confessed co-conspirators has increased to three. And that small circle will likely continue to widen as the results of a two-year federal investigation are revealed.

In all, close to $1 million may have been squeezed over four years from drunken driving defendants anxious to get out of trouble, and at least $75,000 or more in bribes is believed to have been paid to courthouse insiders willing to help them do it, according to a  Daily Advertiser review of drunken-driving cases and court records.

As I was sipping coffee and reading a story in the Times about New York’s latest iteration of its gun laws, a  twit by Brian Tannebaum alerted me to yet another confrontation between Carlos Miller and guys in uniform who are of the view that they get to make up rules and then enforce them with force. I shift gears.

For anyone unaware of who Carlos Miller is, he’s a Miami photographer who has challenged the locals by asserting his right to take photos and videos of anything in public he pleases.  He has a blog called Photography is not a crime, PINAC.  Carlos has been  twice prosecuted for disobeying people in uniform who ordered him not to take pictures.  He was been twice acquitted. 

Given the amount of discussion online about the right to video things in public, you might think that the message has been sufficiently spread that police, or in this case, security guards who only get to eat unglazed donuts, would be aware of the fact that people have the right to video anything that happens in public.  The flip side is that there is no law prohibiting videotaping, and they have no authority to tell anybody not to do so. 

You would also think that the name Carlos Miller would be fairly well known in the neighborhood, having twice beaten back efforts to shut him down, and having a pending lawsuit for the violation of his civil rights.  If you did, you would be wrong on all counts. 

Carlos’ name appears here with some regularity. We’re not old friends, and I’ve never had a cup of coffee with Carlos.  But what he does, and what he has suffered for, is what marketers love to call “disruptive technology.”  The pervasive use of video, which gave rise to my “But For Video” series of posts, caused a fundamental change in our understanding of what really happens on the street, without the prying eyes of judges, lawyers and jurors.

It wasn’t that we learned that cops were always lying or that defendants were always innocent. It was that we learned that sometimes cops lied and sometimes defendant did nothing wrong. It was that we learned that most of the time, the sanitized testimony of police officers of their conduct and words toward the public was false, even if not false enough to negate an arrest or conviction. What we learned from the video taken by the public was that we had been living a lie. 

Today, no judge can look at the testimony of a cop, or the claims of a defendant that the beating he received, the words put into his mouth, the conduct attributed to him, without realizing that there was a fairly good chance that nothing happened quite the way he’s being told.  At least no judge who is being honest with himself, and hasn’t chosen to hide beneath the bench and pretend that Sheriff Andy is still in charge.

This is happening because of the disruptive technology of video.  But it’s also happening because guys like Carlos Miller are out there, willing to take the hit time after time to preserve the right to videotape guys in uniform, even when they demand he stop and use force to make him.  Let’s face facts, while most of us are happy to stand atop the pedestal of civil rights when we’re surrounded by the applauding throngs, few of us want to be the guy on the train platform surrounded by uniforms who want to put their hands around our necks.  That’s where Carlos comes in.

Last night, Carlos Miller was again accosted, this time on the Miami-Dade Metrorail by men in the employ of 50States security, hired to work the train stations.



Carlos describes what happened:

As you will see in the above video, they tried to push me down the escalator and I shoved back in order to defend myself, which prompted at least three security guards to pounce on me, including one security guard named R. Myers who violently choked me to the point where I thought I was going to die.

Some see this is a particularly bizarre crime story. Other see this as an opportunity to make jokes.  From Doug Berman at Sentencing Law and Policy :

It is often reported that child rapists are often treated as pariahs even among the most hardened criminal is prison.   Consequently, this stunning local sentencing story prompted the (serious?) question in the title of this post. The article — which has an ending that led me to double-check it wasn’t from The Onion — is headlined “N.Y. super who had sex with dog gets prison.”  Here are the details:

An apartment building superintendent who was caught on tape entering a unit and having sex with the tenant’s puppy was sentenced to prison Tuesday.

Alan Kachalsky thought something in his apartment was amiss for months — blinds drawn that had not been, a window left open that he had left shut.  But nothing ever went missing, and, fearing he may come off as paranoid, Kachalsky never went to the police. Instead, he set up three cameras and waited.  Kachalsky shared his apartment at the Rye Colony Cooperative Apartments with a male Labrador puppy, Gunner, who, unbeknownst to Kachalsky, was the real target of the burglar.

The burglar, it turned out, wasn’t there to steal anything, Kachalsky said Tuesday, but for something far more unimaginable.  Kachalsky, an attorney, said it never occurred to him that someone was returning to have sex with his dog.  Kachalsky turned over the video to police, who questioned and arrested Nicaj on Feb. 9, 2012, for sex acts against the 1-year-old dog committed the day before.

From there, it goes to a place I would never have imagined.

Given the apparent happy ending for the victims of this crime, I am not sure whether to encourage off-color jokes about this case or to engage in serious analysis of the prosecution of this peculiar puppy rapist.  Thus, I pose this dilemma to readers:

• 
  

  should we ponder, rigorously or comically, whether and how the victim dog’s tender age impacted the seemingly severe sentencing outcome?



• 
  

  should we worry, genuinely or jokingly, whether there are other puppy victims of this defendant who lacked the courage (and ability) to speak up about their abuse?



• 
  

  should we question, meaningfully or mirthfully, what the human victim here has now done with the contraband puppy porn than he inadvertently produced?



• 
  

  should we wonder, seriously or facetiously, whether upon release from prison the offender will be barred from going within 1000 feet of a pet store without prior approval of his probation officer?

Obviously, this is bizarre conduct, sufficiently off-the-charts nuts that it seem almost Onion-like. But it isn’t a joke, and bestiality (like necrophilia) happens.  Is this funny? Are we so jaded that we can indulge in dark humor to the extent reflected by this post?

There is nothing about what was done to a puppy that strikes me as humorous, even indirectly. This is just sick stuff.  Am I missing something here?

It’s straight out of some Kafkaesque nightmare, with the benign name of “the chair.”  From the Boulder Weekly :

It’s a restraint seat used by many jails to subdue inmates who pose a threat to themselves or others. It has wrist straps, ankle straps, a lap belt and a harness.

The thing is, inmates don’t always go peacefully into “the chair.”

And when they don’t, deputies are authorized to use what at first glance might be seen as violent methods to force compliance.

In official police reports, those methods carry names like “infra-orbital pressure point technique” or “straight punch to the chest.”

But inmates describe it more along the lines of getting beat up by out-of-control cops.

By his own admission, Joshua Johnson became angry after he was taken to jail on Sept. 19, 2009, after being pulled over for a broken headlight. He felt he had been arrested wrongly, for violating an alcohol-related condition of a restraining order that he said had been lifted. In addition, he was supposed to pick up his daughter later that morning, but being incarcerated put a crimp in those plans.

Johnson says they came into his cell five deep, the red laser light of a Taser target shining on him, and he put his hands up. He says they cuffed him and backed him out of his cell, his arm twisted back hard. He was placed forcefully into the chair. According to Johnson, his face was slammed against his knee after he dared to look backwards, and he asked why they were hurting him. Johnson admits he called the deputy a “fucking cocksucker,” and says the officer straddled him and said, “I’m going to show you what a cocksucker I am.”

That deputy then lifted the inmate’s upper lip, Johnson says, pulled it up to his nose, put his palm underneath his lip and repeatedly jammed his hand up forcefully against the base of his nose for more than 60 seconds. Johnson says he heard squealing and later realized he was making the noise himself. He says he thought about biting the deputy’s pinky finger that was in his mouth, but thought the better of it. Johnson claims he managed to gasp that he couldn’t breathe, and the officer replied, “Yes, you can, because I just heard that.”

As he was about to pass out, Johnson says, another deputy punched him in the stomach.

One deputy “applied an infra-orbital control hold,” the aforementioned blows to the nose, which by one account “had little impact and he continued to resist.”

There were never cameras there because video was used primarily to assist deputies with real-time surveillance, not recording, he explains, and there is an observation area looking directly out onto the day room, so there was no need.

Sheriff Joe Pelle tells BW that cameras have historically been used “as an operational tool to see places where deputies couldn’t see, so they weren’t everywhere. But then, a few years ago, attorneys started making requests for video and we noticed it started multiplying and it became apparent that this was more than just a management tool, it was being used for prosecutions and lawsuits.”

He agrees that the disciplinary day area is a good spot to add cameras.