One mystery is why cops decided that 8th grader, Javier Payne, needed to be hassled in the first place.  When news first broke, the claims were the usual ones made to justify the damage when there was nothing else to claim:

A spokesman for the police department said two teenagers were arrested, ages 13 and 14, at approximately 11 p.m. Officers charged both of the suspects with resisting arrest, obstructing governmental administration and assault.

But when a cop puts a kid through a plate glass window, you have to say something.

The 14-year-old boy sat on the stoop of the Hookah Shop in the Bronx, blood pouring from his chest and filling his lungs, and thought: This is what it’s like to die. Moments before 11 o’clock Saturday night, the boy, Javier Payne, had been smashed through the store’s plate glass window by a police officer who had stopped him after an altercation with a man on the street, witnesses said.

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Delicate little flowers aren’t born, they’re made.

— Abraham Lincoln, Second Battle of Bull Run, 1862

A master’s student at the University of Wisconsin, Anthony Llewellyn, didn’t like his professor, Sally Vogl-Bauer. She was, he maintains, mean to him.  So mean that following his dismissal from the University, he made a YouTube video. [Trigger Warning: Really lousy video ahead]

If the video is any reflection of his communication skills, the question isn’t whether Vogl-Bauer was too mean, but whether there’s any rigor in Wisconsin’s admission standards. Nonetheless, they let Llewellyn in, and he took Vogl-Bauer’s required course.  He did not think well of his professor. So, he let it be known. Continue reading →

Three guys whose work and ideas I respect wrote that the presumption of good faith is wrong.  It began with an article by Andrew Cohen at ThisWeek, and was followed up by Gideon at A Public Defender, then Radley Balko.  Much as I may appreciate their sentiment, the foundational error of posts cannot go unnoticed.

Cohen started by writing:

When I was a young man learning the law, I was taught about the “good faith” in which all public officials are always and forevermore presumed to be acting. This presumption, this so-called “implicit covenant,” is an axiomatic cornerstone of both civil and criminal law. And why not? Our courts are busy enough these days without requiring judges to peer into the motives and the biases of the parties moving through our justice systems.

What a tidy but self-defeating fiction the “good faith” presumption has revealed itself to be over my 25 years in the law. The more I study criminal justice, the clearer it is to me that public officials on every level of our justice system are wholly unworthy of the benefit of the doubt the law ascribes to their actions.

While his 25 years in the law aren’t quite the same as my 30+ years, considering his involve writing about it from the outside while mine are formed by being smacked around in the trenches, I can’t disagree that public officials have done as much as possible to make us cynical about their motives.  Continue reading →

It started with Arielle Lipsen walking into a DEA raid at her family’s smoke shop, Purple Zone, in Alpine, Texas. It ended, to the extent it’s anywhere near an end, with Arielle’s letter of apology, a image of which appears on the Brewster County Sheriff’s facebook page. In between, a friend of Arielle’s, Tom Cochran, posted a picture and explanation of what happened to her.

“She was having a conversation with a female agent, and trying to give the agents the lock code,” Ilana Lipsen claimed. “She was trying to tell them there was no key, but a code. There were too many officers and about half of them were doing nothing, then this one agent charged at her, threw her, kicked her legs out from under her, and when she was falling, her leg brushed up against his leg. That’s when he said ‘you’re trying to beat a federal agent’ and shoved the butt of his rifle into her neck.” (via BigBendNow)

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The myth had taken hold of hackers and geeks by the throat, as was abundantly clear soon after the story broke.  But because Ladar Levison was the good guy, and because the geeks, skilled as they may be in code, were still binary in grasp.  It was wrong then, and it’s dangerous now. The myth must die, or the hackers and geeks will surely fail.

Yet, the myth was repeated in Levison’s Guardian post revealing his trials and tribulations in dealing with the government.

In the first two weeks, I was served legal papers a total of seven times and was in contact with the FBI every other day. (This was the period a prosecutor would later characterize as my “period of silence”.) It took a week for me to identify an attorney who could adequately represent me, given the complex technological and legal issues involved – and we were in contact for less than a day when agents served me with a summons ordering me to appear in a Virginia courtroom, over 1,000 miles from my home. Two days later, I was served the first subpoena for the encryption keys.

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Try telling someone that the FBI does not, as a matter of policy, record interrogations. They’re incredulous. After all, the technology to record sound, not to mention images, has been around a long time, so why would the FBI actively refuse to use it? Are they crazy?

Crazy like a fox, to be trite.  Without a recording, the only means by which a jury learns of an interrogation is through the lips of an agent.  A rambling, incoherent, ambiguous, vague hour-long interrogation is magically transformed into a cogent and concise confession.  Bad questions leading to ambiguous answers are filtered through the myopic interests of law enforcement so that they mean exactly what the agent wants them to mean.

Nuance is lost. Details omitted. Sometimes, a statement was never said at all. Sometimes, it was said, but differently, with one meaning intended and another received.  No matter, the only way to clear up the misconception is for the defendant to testify, shifting the risk to the defense.  Even so, juries believe well-groomed, sincere, articulate agents. Defendants have a reason to lie, but FBI agents would never do that. “Why would they?”, the prosecutor will argue, and the only real answer is because they do, sometimes. Continue reading →

The 11th Circuit reversed the sentence of probation imposed on Birmingham, Alabama, police officer Corey Hooper following his conviction for deprivation of rights under color of law.  He did so by beating a cuffed and compliant suspect in the face.  The guidelines range for Hooper was 70 to 87 months, but the judge departed downward to 60 months probation.

Here, the district court abused its discretion when it issued Hooper a 60-month probationary sentence. First, the court expressly declined to consider the need for Hooper’s sentence to adequately deter other police officers from using excessive force. 18 U.S.C. § 3553(a)(2)(B). By ignoring a pertinent § 3553(a) factor that was one of the “key purposes” of sentencing, the court issued a substantively unreasonable sentence.

Among the legitimate purposes of a sentence is “general deterrence,” sending a message to others that engaging in criminal conduct will result in certain consequences.  The theory behind general deterrence is perfectly reasonable.  Experience suggests otherwise. Continue reading →

That there’s an epidemic of rape and sexual assault on campus is a given, because the White House says so, as do the advocates to end this plague, despite the absence of evidence except their anecdotes.  Perhaps they’re right, but it’s hard to say because the meaning of words used to describe offending conduct have become untethered from any definition.

Not to let lack of definitions or proof of a problem get in the way, the government is forcing the issue by ramming guidelines down the throats of colleges and universities to cure the problem that may or may not exist.  Colleges don’t appear to be resisting. And these changes in the view of sexual assault and rape appear to be filtering through to criminal law.

Two profs, Kathleen Bogle, teaching sociology and criminal justice (whatever that is) at LaSalle, and Anne Coughlin, a lawprof at UVA, apparently recognized the confusion wrought by an excess of passion and a dearth of reason and decided to fix the problem.  Their post at Slate is entitled The Missing Key to Fighting Sexual Assault on Campus, with the subtitle, Universities must make clear when having sex with a drunk person is a crime.  Continue reading →

Much as fragile feelings may be given what’s considered by some to be short shrift here, the similarly strongly held feelings of the most manly men are no better. Via Clark at Popehat:

A Blair County man said he was standing up for this American Indian heritage and expressing his beliefs when he hung an American flag upside down and spray painted it earlier this week…

“I was offended by it…” said Allegheny Township police Assistant Chief L.J. Berg. Berg said he took the flag down and charged Joshua Brubaker with desecration and insults to the American flag. “I removed it from the building, folded it properly and seized it as evidence,” said Berg…

And, of course, Assistant Police Chief Berg, in touch with his deep feelings of offensiveness, “charged Joshua Brubaker with desecration and insults to the American flag.”  Because, feelings. Continue reading →

It begins with a traumatic experience. The problem is that traumatic experiences, like every other feeling suffered by those who believe their sensitivities define the parameters of everyone else’s world, is a humpty dumpty phrase.  That’s a burden no one can meet, despite the most sincere words of UC Santa Barbara student Baily Loverin.

The demand is for “trigger warnings,” which is explained by the New York Times:

Should students about to read “The Great Gatsby” be forewarned about “a variety of scenes that reference gory, abusive and misogynistic violence,” as one Rutgers student proposed? Would any book that addresses racism — like “The Adventures of Huckleberry Finn” or “Things Fall Apart” — have to be preceded by a note of caution? Do sexual images from Greek mythology need to come with a viewer-beware label? Continue reading →