There can’t be too many guys named Tony from Jamaica living on Nantucket, population 10,142.  He’s a good looking guy around 30 years of age, which should narrow it down if necessary. He was wearing a Yankees baseball cap, though I don’t think he was actually a baseball player for the team. 

So if you happen to come across Tony, please do me a favor. Buy him dinner. Buy him a drink. Be nice to him. At the very least, tell him “thank you.”

A few days ago, I drove up to the Westchester Correctional Facility at Valhalla. It was a foggy morning, so I turned on the lights to avoid someone not realizing I was there and ramming into me at great velocity. It seemed prudent.  As I did so, I thought to myself, “don’t forget to turn the lights off when you get there.”  You see, this car had old-fashioned manual lights, the type that have to be turned off by hand when you stop the car.  The other cars have lights that turn off by themselves, so I never have to think about it. I tend to use the other cars more, and have gotten used to the lights going off by themselves. I knew this, which is why I made a point of reminding myself to turn off the lights when I stop.

I arrived at Valhalla and got my stuff together. There is a whole ritual, since one has to shed all undesirable things before entering a jail, and I try to make sure my entrance is as uneventful as possible. With my usual meticulous precision, I dealt with metal and communications devices, whatever contraband might be concealed on my person, and made sure I had the papers I needed in hand. Off I went to the gate, and it was smooth sailing from there.

When I returned, ready to motor back at the speed limit, I turned the ignition key and, click, click, buzzzz. Then silence. My eyes began to droop and found the knob for the headlights. I could see the stem, as the black bakelite knob was pulled toward the driver. I left the lights on. The battery was dead.

Crap, I thought to myself. What a moron I am. So I pulled out my trusty smartphone to find a garage to give me a jump. I turned it on, which was something I do not often do as I only turn it on when I need to make a call out. I rarely need to make a call out.  I was fairly sure that the last time I used it, there was a full battery. Apparently, some elf had stolen my full battery in the interim and replaced it with a dead one.  The phone was dead too.  Double crap.

Then Tony knocked on my window.  He asked if I needed a hand, and I told him the situation. He was parked two cars down, and was there because his girlfriend’s cousin was a guest of Valahalla. She was inside, and he was in the parking lot waiting for her.  Still, he could have stayed in his nice, warm car with a working battery, listening to music or reading Chaucer. Instead, he noticed I was having a problem and came to see what he could do to help.

He didn’t have jumper cables, unfortunately. But his car charger fit my cellphone. And he had a cellphone, also charged. And we found a garage that could send a truck to jump me. And he helped push my car out of the parking space into the middle of the parking lot, then down to a place where it was out of the way but the truck could still reach it. And he stood there, in the cold, talking to me. And when I got too cold to stand there anymore, he let me hang out with him in his car, where we listened to music and I made some incredibly humorous Jamaica jokes. It would have been too weird to read Chaucer to each other.

I have to admit that I had an inkling that maybe Tony had an ulterior motive when he first approach my car. I was suspicious, an occupational hazard of being a criminal defense lawyer in a jail parking lot. Afterward, it made me feel unworthy of the kindness Tony had shown me.

When the truck came to jump my battery, Tony got out of his car with me, and stood beside me to make sure the car started and everything was cool. He asked me if I had enough to cover the cost when the truck driver told me the tariff. It was eminently reasonable, and I had it covered, but Tony just wanted to make sure I wasn’t going to end up with another problem.

I thought about asking Tony if he wanted to grab some lunch, but realized he was waiting for his girlfriend and wasn’t actually there for my benefit. I thank him. He shrugged it off, saying it was nothing. He said that it was his pleasure to help.  And then we shook hands and he walked back to his car. 

I beeped the horn “thank you” as I drove out of the lot. But as I drove home, I wondered what I did to create the karma that brought a guy like Tony to Valhalla that day. Whatever it was, it wasn’t enough.

So if you happen to come across a Jamaican guy named Tony from Nantucket, I would very much appreciate it if you could show him some kindness. He is a good man.

Let’s start with the punchline: Richard Greenberg has settled, with the auto repair shop agreeing to pay $15,000 and the New Jersey State Troopers agreeing to pay $135,000.  While the settlements for misconduct usually fail to meet people’s fond dreams, this one was pretty darned good. Excellent, really.

What happened to Greenberg, and started this gravy train, was something that happens to all of us at some point: He paid a guy to do a job and the guy screwed up.  In this instance, it was an auto mechanic.

The dispute began when Greenberg went to the shop in January 2007 for an oil change and agreed to a radiator flush and battery cleaning.

But when his car came out of the garage, it had trouble starting after several battery jumps. The mechanic told him he’d have to get further repairs elsewhere, because the shop did not have the appropriate equipment on hand, according to the lawsuit.

Greenberg claimed his car had no history of trouble before bringing it to the shop.

He paid his bill, including $15 he disputed for the battery cleaning, and drove it immediately to a Pep Boys, where he claimed it stopped functioning again.

Mechanics there told him the battery post “had probably snapped.” Greenberg paid $88 to have a new battery installed, he said in court documents.

So Greenberg stopped his check, closed his account (purportedly because there was a missing check as well) and sent the garage a new check for the amount he believed he owed. The garage owner sent the check back, cut in half, and called his local state troopers instead.

The owner went to the state police, which covers enforcement and patrols for Hainesport, to have a report prepared to take with him to small-claims court.

After troopers investigated the matter, Greenberg was arrested without a warrant and without charges pending, his attorney said.

While Greenberg was chained to a bench, another trooper told him, “You’re not such a tough (expletive) now,” according to court documents.

After 15 minutes, when Greenberg agreed to pay the money, the trooper returned to tell him he was “a lucky man” because the shop had agreed to accept the money.

From the  Payton issue, not the fact that a New Jersey State Trooper thought his job was to collect money for a local business from a disgruntled customer by use of force authorized by the state.  In fact, the court suggested that the Trooper’s suspicion that Greenberg deliberately passed a bad check, a crime, was sufficiently reasonable to establish probable cause.

Granted, it’s hardly insignificant that the appellate court recognized, where the lower court did not, that State Trooper
Nicholas Pryszlak did not have the power to decide, on his own and without a warrant, to enter Greenberg’s home and arrest him.  There are some basic things they can never do, and breaching the sanctity of a person’s home to arrest without a warrant or exigency is one of them.  It’s always good to know that Payton remains the law.

Yet, the fact that there was any question, any confusion, about whether law enforcement has a legitimate role to play in fundamentally civil disputes should scare the daylights out of us. From the undisputed allegations, there was a very legitimate dispute.  This isn’t good, but it isn’t the end of the world either. People go to a business and get service, and are dissatisfied. Sometimes, as here, the service ended up causing the consumer more problems than what he started with, and the consumer has an excellent reason to be upset.  

When disputes over a consumer transaction happen, there are courts to deal with them. Small claims courts, not criminal courts.  This is important, because we already face  three felonies a day by coffee break, and need not fear that we are powerless to question and challenge disreputable businesses without risking arrest.  There has to be a line drawn somewhere.

Trooper Pryszlak didn’t get the message.  This reflects a deeper problem inherent in the mindset of law enforcement officers, not only that they can do as they please because of their great power and insight, but that they are authorized to decide right and wrong in all human interactions. This trooper decided to right what he, in his infinite wisdom, saw as a wrong, a bad check passer screwing a local business out of its money, and he was going to make it right.

“You’re not such a tough bastard now.”

Are people who dispute a charge “tough bastards”? I think so, and I think they should be. Too often, people allow themselves to be pushed around, acquiescing to the more assertive person for fear of, what, being disliked?  Why, I wonder, should anyone care? Certainly the business won’t charge you less, on top of providing poor or defective service, because you were nice about it.  They rely on people being too polite or wimpy to be disagreeable to get away with delivering crap. So it takes a tough bastard to refuse to let himself be treated like dirt.

But New Jersey State Trooper Sergeant Steven M. Jones was mistaken when he spoke those words to Greenberg.  Whether his agreement to pay the disputed amount was a momentary lapse or a strategic move, he was tough enough to take the troopers, besparkled in their imposing uniforms that haven’t (as far as I can tell) changed since the fifties, with leather Sam Browne and, often, black boots to their knees, to their knees.  Greenberg was a tough enough bastard to get $135,000 from the troopers.

The law has enough trouble distinguishing criminal from civil disputes, usually hinging on rhetoric rather than reality.  In this case, there was no question that Greenberg had a legitimate beef with the garage over their having broken his battery instead of fixing it. That’s more than sufficient to eliminate any potential that his conduct in stopping payment was criminally intended, and it’s a shame that the appellate division didn’t make that clear.  But this settlement, both for the garage and the troopers serves as a small reminder that the troopers, no matter how awesome they view themselves or how they see their role as fixing problems for local businesses, have no business getting involved in civil disputes.

Now, if only the payment would come from Trooper Pryszlak’s pocket instead of the taxpayer’s, maybe Jersey troopers would get a real message that even they have limits. 

In a New York Post op-ed, Glenn Reynolds argues, in light of the debate over legislating weapons following the Newtown tragedy, that there should be a waiting period for the enactment of laws:

So New York’s stringent new gun-control law bans guns or magazines capable of holding more than seven shots. Everybody’s safer now, except that — in the Gov. Cuomo-led rush to pass the bill — nobody thought to exempt the police, making all those Glocks felonious.

Well, sure, that was pretty embarrassing, but they can easily fix a little screw-up that sneaks into a law. Does that undermine the notion that there is a problem in need of a solution now, before anyone else is harmed?

After every tragedy, legislation gets rushed through that’s typically just a bunch of stuff that various folks had long wanted all along, but couldn’t pass before. Then it’s hustled through as a “solution” to the tragedy, even though close inspection usually reveals that the changes wouldn’t have prevented the tragedy, and don’t even have much to do with it.

The goal, thus, is to prevent close inspection through a combination of heavy-handed legislative techniques and bullying rhetoric: If you don’t want to pass our bill without reading it, you must hate the children.

This has been seen far too often, opportunistic law-making.  The iron is hot, so strike. That’s how the USA PATRIOT Act was passed sight unseen, Cuomo’s new gun law may not be of that magnitude, but enjoyed similarly smooth sailing. The question is whether it’s a problem in need of a solution, a solution in need of a problem, or just legislators who read the title of a new law, if that, and vote, neither knowing or caring what all the black, squiggly lines say below.

I’d like to propose a “waiting period” for legislation. No bill should be voted on without hearings, debate and a final text that’s available online for at least a week. (A month would be better. How many bills really couldn’t wait a month?)

And if the bill is advertised as addressing a “tragedy” or named after a dead child, this period should double.

It’s risen to the level of a meme that every tragedy involving a child begets a new law, and almost invariably one that either fails to address the actual problem, or is vague and overbroad, or replicates existing law, because two laws addressing the same issue are better than one.

Seriously, legislation is supposed to be a deliberative process. When they don’t want to deliberate, it’s because they’re hiding something. And they’re hiding it because they don’t want you to know about it.

I’d also add another provision: Anytime a “tragedy” bill has to be amended because slipshod legislating led to flaws, the bill to fix it must list the names of those who voted for the original, in bold type, at the beginning under the heading “IDIOTS WHO DIDN’T READ THE BILL OR THINK ABOUT IT BEFORE VOTING.”

In some instances, the failure of lawmakers to either deliberate, or actually read, a bill before voting can be blamed on lack of time. But then, if they had all the time in the world to read the bill before voting, would it change much? They are voting perception, their love of children and hatred of tragedy. People are filled with passion, and they plan to ride that passion wave as far as it will take them. Remember, passion impairs thinking, and there can be no better time to take advantage of it then when emotion run hot.

But even if there was a week, a month, a year to read a bill from cover to cover, to think long and hard about it, how many legislators would? How many citizens, aside from the tiny handful for whom it was primary issue, would? Be real. Reading is a lot of work. Thinking even more. It would make a lot of people’s head hurt, and people hate that, especially when they knew from the moment they heard of the tragedy what must be done.

Jeff Gamso brings up a controversial point, following the congressional testimony of former Representative Gabby Giffords.



For those who don’t remember former press secretary Jim Brady, who became the embodiment of gun control after being critically wounded during the Reagan assassination attempt, he was the fellow after whom the  Brady Bill was named. Giffords is this generation’s Jim Brady.

She didn’t say what because . . . . Hell, I don’t know why.  Because she doesn’t know what? Because it’s more than she can articulate since she was shot? Because it doesn’t matter?

Violence is a big problem
Too many children are dying
Too many children
We must do something

You know, for the children.

She’s right.  Violence is a big problem.  And too many people are dying.

Even though Giffords may not have enunciated an answer, she struck the emotional chord that something must be done immediately.  The stage is set for the people who advocated for or against gun control before the Newtown tragedy occurred. As soon as the opportunity presented itself, they started screaming.  Legislators were drowning in passion and heated rhetoric.

While Reynolds’ proposition may not serve in every instance, such as when we are about to go over a fiscal cliff and need an immediate stop-gap to prevent a discrete outcome no one wants, it certainly has its merit when it comes to social and criminal legislation in the heat of passion. 

But as he notes, it’s never going to happen, as the last thing legislators want is a limitation on their ability to pander when an opportunity presents itself.  Thoughtfulness and deliberation are hardly strong selling points with an election coming up, as it does every two years.

When will people make it a priority to hold their representative to actually reading a law before they vote on it?  Don’t be silly. Voters would never expect their representative to do something they wouldn’t do themselves.  And so we have a lot of laws named after dead children, enacted in the heat of passion because we have to do something, that still haven’t made our world perfect. What’s one more?

When Culpeper Town Police Officer Daniel Harmon-Wright shot and killed Patricia Cook, he claimed he had no choice.  If he hadn’t killer her, she would have killed him. That’s what he said.

Fifty-four-year-old Patricia Cook was shot to death on February 9 just outside a church parking lot in Culpeper, Virginia. The first two rounds, fired at point-blank range, tore into Cook’s face and arm. Another round, fired as Cook was driving away from the shooter, entered her brain. A fourth round severed her spine and veered into her heart, killing her. A telephone pole brought her Jeep Wrangler to a halt.

Patricia Cook had been parked in front of Epiphany Catholic School for a long time and refused to leave. The school called the police. A Culpeper police officer confronted Cook. Cook rolled up the officer’s arm in her window and punched the gas. The officer did what he had to do to stop the vehicle and save his own life.

Cook was a 54-year-old homemaker and Methodist Sunday school teacher who hadn’t received so much as a speeding ticket since the 1970s. She enjoyed quilting and cooking for her congregation at Culpeper United Methodist Church.

Local residents flooded the comment boards of the Star-Exponent*. Under the guise of anonymity, they defended “Pat” Cook, and called for an investigation into the Culpeper Police Department. “Two weeks after the shooting, [the publication] stopped that,” [Former elementary school teacher, 56-year-old James] Jennings says of the message boards. “It deleted all the existing comments and all the existing discussion on that.” The paper relaunched with Facebook commenting, requiring people to identify themselves. At that point, the message boards for the small-town paper went silent. “I think people were afraid to speak up,” Jennings says, adding, “there are a couple of bullies in town.”

So local news was sanitized, and local residents silenced. Even though witnesses disputed the police version of events, they were easily ignored. Who you going to believe, a hero cop or people who back a dead woman?

But Jennings wasn’t done yet.

Jennings created the Facebook page “Justice for Patricia Cook” on April 23. The About section reads, “Please consider joining our community, encouraging justice for the unarmed 54 year old woman who was shot by a Culpeper Police Officer, under questionable circumstances.” Beneath that description are the following questions: “What if it was your wife? What if it was your mother, sister, daughter? Would you be willing to sit quietly and say nothing? What if you pulled the trigger? Wouldn’t you want to see justice?”

Regional media, including the Washington Post, picked up the story, and miraculously, the Fauqier County special prosecutor convened a grand jury.

Yesterday,  one ex-cop’s world crashed :

Former Culpeper Town Police Officer Daniel Harmon-Wright was found guilty Tuesday on three charges — including voluntary manslaughter — in the shooting death of a woman in the parking lot of a Catholic school last year.

Most of the time, both the posts at SJ and the comments are negative, enough so that they might make people feel hopeless.  James Jennings refused to be hopeless, to give up.  He didn’t bomb the police station or scream wild-eyed threats; he persisted in demanding accountability, and rallied other, like-minded locals, to his cause. 

The good people of Culpeper prevailed, and a cop who killed a resident was convicted.  Don’t give up hope, and don’t quit. We may not win much, but if we don’t persist, we will never win.

H/T FritzMuffKnuckle

Following on  his decision in United States v. Dossie, castigating mandatory minimum drug sentences, Eastern District of New York Judge John Gleeson has taken the point a substantial step farther in his latest decision in United States v. Diaz.  Via Doug Berman :

Diaz will be sentenced in a few weeks, and when that happens I will carefully consider all the factors set forth in 18 U.S.C. § 3553(a) except one — the length of imprisonment recommended by the United States Sentencing Commission’s Guidelines Manual. Though I will not ignore Diaz’s Guidelines range, I will place almost no weight on it because of my fundamental policy disagreement with the offense guideline that produces it. In fairness to the government, I write here to explain my belief that the offense guideline for heroin, cocaine, and crack offenses (“drug trafficking offenses”) is deeply and structurally flawed. As a result, it produces ranges that are excessively severe across a broad range of cases, including this one.

The flaw is simply stated: the Guidelines ranges for drug trafficking offenses are not based on empirical data, Commission expertise, or the actual culpability of defendants. If they were, they would be much less severe, and judges would respect them more. Instead, they are driven by drug type and quantity, which are poor proxies for culpability. (Emphasis added.)

If the Commission wants greater adherence to the Guidelines, as it should, it needs to get better at fixing broken offense guidelines.  The drug trafficking offense guideline was born broken.  Many judges will not respect it because as long as the sentences it produces are linked to the ADAA’s mandatory minimums, they will be too severe.  Indeed, as discussed further below, for almost two decades the nation’s judges have been telling the Commission to de-link the drug trafficking offense guideline from those harsh mandatory minimums and to reduce the sentencing ranges.  The Commission should listen and act.  It should use its resources, knowledge, and expertise to fashion fair sentencing ranges for drug trafficking offenses.  That process will take time.  In the meantime, because real people, families, and communities are harmed by the current ranges, it should immediately lower them by a third….

On June 19, 1986, University of Maryland basketball star Len Bias died of a drug overdose. Congress promptly enacted the Anti-Drug Abuse Act of 1986 (“ADAA”), which established a two-tiered scheme of mandatory minimum and enhanced maximum sentences that have now become central features of the federal drug sentencing landscape. The ADAA’s five-year mandatory minimum, with a maximum enlarged from 20 to 40 years, was specifically intended for the managers of drug enterprises, while the ten-year mandatory minimum, with a maximum of life, was intended for the organizers and leaders. 

But right from the start Congress made a mistake. The severe sentences it mandated to punish specified roles in drug trafficking offenses were triggered not by role but by drug type and quantity instead. Instead of prescribing a five-year mandatory minimum for a defendant who the government proves to be a manager of a drug enterprise, the ADAA provides that the mandatory minimum is triggered by offenses involving 100 grams of heroin, 500 grams of cocaine, or 28 grams of crack. And instead of hinging the ten-year mandatory minimum on the government’s proof of a defendant’s leadership or “kingpin” status, Congress simply used larger drug quantities: 1 kilogram of heroin, 5 kilograms of cocaine, or 280 grams of crack. So if an offense happens to involve a drug type and quantity that triggers a mandatory minimum, every defendant involved in that crime, whatever his or her actual role, can be treated as a manager or leader at the option of the United States Attorney. 

Two Stanislaus County Sheriff’s deputies were there to effect an eviction. Not exactly the sexiest duty around for the most part, but this one was a bit different.

“(Deputies) knew — and I mean they knew — the house was occupied by someone reported to have a cache of assault rifles, to be militaristic and to be unstable, with surveillance cameras, and nobody let (Engert) in on the secret,” San Francisco attorney Richard Schoenberger said Friday.

The phrases “Be very cautious” and “Is going to have problems” were noted next to the address on an eviction form given to the officers, the document says, and surviving deputy Mike Glinskas later confirmed in a Modesto police interview that the warnings were highlighted in red.

The deputies knew that evicting Jim Richard Ferrario might be difficult, and dangerous, but they had a job to do. That job required the help of a locksmith, and they got 35-year-old Glendon Engert to do the job.  Nobody bothered to tell the locksmith, the guy in front of the door, that there was any chance of danger.

But deputies took no special precautions and essentially “placed (Engert) in a ‘vertical coffin,’ ” the document reads, citing police jargon for doorways, where officers are most vulnerable when clearing a home.

Engert began disabling the lock to a heavy metal security door and paused at sounds inside, telling deputies, “I think someone’s in there,” the lawsuit says. Instead of having him retreat, they directed him to continue drilling the lock, and assault rifle bullets fired from inside pierced the door about 15 seconds after, the lawsuit says.

Deputy Bob Paris was shot in the head. Engert made it a few steps before he went down. Two dead on an eviction call.  While the death of Deputy Paris is a tragedy, it’s one that’s subsumed in the nature of the job, a risk that every cop knowingly undertakes.  More importantly, he knew that this was a dangerous job going in.

Glendon Engert had no clue.  He was a locksmith, not a law enforcement officer. When he went to work in the morning, he wasn’t afraid of not making it home for dinner. The job of locksmith doesn’t carry with it the inherent risk of death. 

Even so, there was a chance to minimize the risk when Engert heard sounds emanating from inside the unit.  Nobody is happy to be evicted, and regardless of whether they have a cache of guns or an unstable disposition, the locksmith isn’t there to argue. He just does locks.

Engert’s widow is suing the Stanislaus Sheriff’s office for his death.

Irina Engert filed a claim against the county in September; it was rejected last week. Her attorney, Schoenberger, said: “We didn’t take the decision (to sue) lightly. This has been a horrific experience for her, and she knows that bringing a lawsuit shines light on her wounds even more. We have done so soberly, with an eye toward doing justice for her.”

As the County rejected the claim, and thus liability for her husband’s death, the case goes to suit.  But it’s not like the County wasn’t paying attention to what happened that day, in the hallway where one deputy and one locksmith died.

The other deputy present, Mike Glinskas, escaped harm. The story told was a bit different.

On April 12, 2012 shortly before 11 a.m., Paris, Glinskas and Engert went to the front door of an apartment at 2141 Chrysler Drive in Modesto to serve an eviction. They knocked on the door and didn’t hear a response when suddenly the resident, Jim Ferrario, fired shots from a high-powered rifle through a security screen door, hitting Paris and Engert.

Glinskas was able to take cover, return fire on the [sic] on Ferrario and radio for help. He was pinned down and unable to get to Engert and Paris, but was able to “broadcast vital and critical information to responding law enforcement personnel.”

So the locksmith was killed and Deputy Glinkas took cover and “broadcast vital and critical information.”  When you see language like that, as if calling in the shooting of his fellow deputy and some locksmith was an act of either brilliant or bravery, the upshot is clear.  Deputy Glinskas was

awarded the Stanislaus County Sheriff’s Office Medal of Valor for his courage.

Deputy Mike Glinskas received the medal on Tuesday for his efforts during the deadly standoff earlier this year that took the lives of Deputy Robert “Bob” Paris and locksmith Glendon Engert.

It’s not such a terrible thing that the deputy got a medal for surviving. Cops get medals for less, and sometimes for things that would get a citizen imprisoned, so there is no reason to begrudge the deputy a medal of valor.

But this was a killing field waiting to happen, and it appears the deputies had no qualms about putting Engert in the middle of it, without the slightest clue that April 12, 2012 might be his last day on earth.  If they’ve got the time and interest to award medals to heros for doing their job, it hardly seems too much to ask that the County demonstrate a modicum of concern for the widow of the locksmith they put in harm’s way.

And if the County really wants to gain something useful from this tragedy of incompetent policing, that ended in a dead deputy, whose life is no doubt valued far higher than that of the poor, lowly locksmith, then maybe it should focus on training its deputies how not to die rather than giving medals for hiding and calling in the shooting..

H/T FritzMuffKnuckle

Humboldt County, California, Public defender Gregory Elvine-Kreis moved to dismiss the burglary indictment based upon the failure of then Deputy District Attorney Allan Dollison to turn over an interview of the defendant prior to trial.  Judge Marilyn Miles refused. 

Via the Times-Standard :

In opposing the motion to dismiss, [Deputy District Attorney Zachary] Curtis said Dollison had no reason not to disclose that he knew about the police interview.

”It just boggles the mind to think that the prosecutor would deliberately hide this information,” he said. “It just escaped Mr. Dollison entirely.”

Curtis said it amounted to “facts lost to an extremely busy prosecutor in an overloaded office.”

Elvine-Kreis said understaffing wasn’t a justification for the violation of a defendant’s rights.

”Part of the reason this happens is they are overwhelmed,” he said. “If they are overwhelmed, they need to hire.”

So the prosecutor was too busy to remember to turn over statements at trial?  Pretty outrageous, both because it’s a facile excuse and, as Elvine-Kreis argues, it’s not an excuse at all. Too busy is their problem, not the defendants. They are required to turn it over, and there is no exception to that requirement that it only applies if they remember or have the time.

Dismissal of an indictment is an extreme remedy, and the prosecution argued that there were other, lesser, remedies available to address the failure. Indeed, that’s true, such as preclusion of admission of the confession at trial.  While nothing has the impact of dismissal, the punishment of the prosecution also punishes the community for a prosecutor’s screw-up by putting a bad guy back on the street.  While many of us would argue, and believe, that the trade-off is well worth it, judges don’t always see the severity of prosecutorial failure and deprivation of constitutional rights as clearly as we do.

But what happened here isn’t exactly as clear cut as the defense’s motion suggests.  Defense counsel learned about the failure to disclose during opening statements at trial. Not a great time to learn that the defendant confessed.  This is the description of how it came down:

A mistrial was declared in the case on Dec. 13, following opening statements. Judge Marilyn Miles, who was overseeing the trial, granted the defense request when it came out that a police interview had taken place with the defendant outside of the scope agreed upon by her defense attorney at the time, and that the information she gave about her pending case was not turned over to the defense until the trial had started.

Wait a second. Did you catch this detail:

…a police interview had taken place with the defendant outside of the scope agreed upon by her defense attorney at the time…

While I’m having a bit of trouble wrapping my head around the significance of this statement, it suggests that the police wanted to “interview” the defendant, who was represented by counsel, without the lawyer present.  And this was good with the lawyer. And the lawyer and the police had some sort of agreement as to the “scope” of the interview, which the police somehow exceeded in the absence of the lawyer. And the lawyer knew that the police were interviewing the defendant but never learned what happened, what was said. 

And this is okay?

Like Elvine-Kreis, I too see the failure to disclose a statement because the prosecutor was too busy and forgot as utterly inexcusable, and worthy of severe sanction.  But then, I see the defense lawyer allowing a represented defendant to be interrogated by cops without being present as worse.

We expect the police to take advantage of defendants given the chance. That’s their job. They aren’t there to be kind and compassionate to criminals, but to catch them and make them confess their crimes. And the defense lawyer thought that some agreement as to scope of the interrogation would protect the defendant? That’s nuts. That’s incompetence.

Was the lawyer too busy to make it to the interrogation?  Sure, there are plenty of pressures, places to be, things to do. That’s the argument the prosecutor made in forgetting to turn over the statements. If that’s why the defense lawyer failed to be present (and why did the lawyer agree to let the defendant be interviewed by the cops at all?), it doesn’t get more ironic.

Some will follow their bias and forgive the defense lawyer while holding the prosecutor accountable. Indeed, one was just mind-bogglingly incompetent, while the other had a duty to fulfill.  But the defense lawyer had a responsibility as well, to provide zealous representation to the defendant.  Can’t make it to the interrogation? Then set it for a time you can make it. There is no time you can make it because you are so very busy? Then don’t let it happen.

In football, there are off-setting penalties, resulting in the terribly dissatisfying result of a do-over.  And there will be a do-over here, if the case is retried after the mistrial.  This sends a bad message to the prosecution that it’s acceptable to be too busy to fulfill their constitutional duties, and the worst that will happen is that they will be made to do what they should have done in the first place, and then get a second chance. Bad message.

But it’s really hard to work up a head of steam over the prosecution’s failure when the defense attorney failed as well.  The real shame here, which apparently eluded everyone, is that while the lawyers for both sides screwed up, the defendant will be the one to suffer on both accounts.

H/T FritzMuffKnuckle

The incident occurred in Bridgeport, Connecticut, on May, 2011, but it wasn’t until a shaky video appeared on Youtube that any gave a damn. 



The video was posted on January 6, 2013.  A brief article in the  New York Post explained:

The police chief in Connecticut’s largest city has pulled three officers off the streets after a video was posted online showing them kicking and stomping on a man they had already subdued with a stun gun.

In the video, a stun gun is heard being fired and a man falls to the ground at a park. Two officers stand over the motionless man and begin kicking him. A third officer drives up and attacks him. No complaint was filed.

Bridgeport city spokeswoman Elaine Ficarra said today that all three officers are on desk duty while authorities investigate the May 2011 encounter. Elson Morales, Joseph Lawlor and Clive Higgins are 10-year veterans of the police force.

Nearly two years had passed since the cops stomped the downed perp. But then, it never happened until there was video.  GW Lawprof  Jonathan Turley asks why:

Even though courts have consistently ruled that such filming is protected by the Constitution, police and prosecutors continue to charge and prosecute citizens who take such videos — or detain and harass them when spotted. This occurs because of a failure to discipline officers harassing or arresting citizens in such circumstances.

In this case, it is not clear why, once again, YouTube appears the decisive factor. Presumably, none of the officers revealed what had occurred or there would have been some action taken before the YouTube posting.

There remains a huge divergence between what people want to believe about policing on the street and the reality of the streets. It’s surprising to find Turley, as a regular in noting police misconduct, asking the question of why a video “appears to be the decisive factor.”  His presumption, that none of the officers “revealed” that they tap-danced on their perp, is also surprising. 

If I had to guess, the officers most likely did “reveal” what happened, in a way. After they booked their victim, they laughingly told a group of fellow officers how they gave him a “tune up,” or some other police euphemism. The group chuckled knowingly, and then moved on with their day.  There was no concern that anyone would raise an objection or mention it again. All in a day’s work.

Why?  Sometimes it’s because the guy made an out-of-shape, over-weight officer run, or walk fast, rather than conducted himself in the manner most convenient to police officers.  Such insolence. The officer got sweaty, or scuffed his shoe. He was breathing hard and could have had a heart attack. A cop can’t let a perp get away with that, so he has to give a lesson in who’s the boss. With his shoe. Because he can.

One might think that a defendant appearing at arraignment with bruises on his back and maybe a broken bone would be a giveaway to someone, a prosecutor or a judge, that improper force was used.  But this is easily addressed, with a line or two in the write-up about how the perp aggressively resisted arrest and force was used to subdue him. Easy.

When the defense attorney tells the judge about how the defendant was lying on the ground, having submitted to the arrest and being compliant, an officer came to stomp him, the judge listens quietly and offers some noncommittal response. The judge is thinking, “what does he want me to do?” 

There is no magic way to distinguish who is telling the truth and who is lying through his teeth. There never has been. On the one side, you have the police officer, who at some point saved a kitty in a tree and became a hero, and on the other side some perp with a sheet who never got a medal for saving a kitty.  Go with the odds, and the odds have always favored the police. 

What makes a video the decisive factor? Short of a dozen witnesses wearing clerical garb, and even then it’s doubtful, video does the one thing that the defense side, where perps are human beings and not statistics or miscreants to be stomped for fun, has historically never been able to do. Prove it.

Some might get the impression, based upon the number of instances of police misconduct that now come to light because of the decisive factor of video that police used to be kinder and gentler, but have suddenly turned more violent and vicious.  After all, sustained determinations of police misconduct involving the use of excessive force were negligible, essentially non-existent, before the pervasive use of video.  Suddenly, they are everywhere.

It’s like magic. It’s called proof, and it’s what never existed before when defendants’ complaints were simply ignored because the odds were against them.

Given the frequency with which videos have revealed that the police were less than forthright, both in their allegations of criminal conduct and their explanations for violence, one would think that the equation should have shifted. One would think that judges would no longer give the cops the automatic benefit of the doubt, and might take the complaints more seriously and, at the very least, scrutinize the details to determine whether the facts truly support the facile police allegations.

But if a guy who is as familiar with the problems as Turley still asks why the video should be the deciding factor, despite the many videos he’s put up on his own blog, it appears that we are still a very long way from overcoming the presumption that cops tell the truth and cop never use excessive force.  Never, that is, until a video proves otherwise.

My buddy Turk explained himself.

Last weekend a story lit up around the legal blogosphere about a troublemaker named Carlos Miller.

But I held my tongue, or in the case, backed slowly away from the keyboard. The story broke January 21st, and I was picking a jury in a medical malpractice case the next day in an upstate (read: conservative) county.

While it wouldn’t take me long to type up a post on the subject, what would happen if a juror (impermissibly) Googled me and saw the post? What if I had a different opinion about troublemaker Carlos Miller than the juror?

I have the burden of proof at trial and need five out of six jurors to agree with my presentation to return a favorable verdict. And that post would be the very first thing that a juror would see.

The criminal defense bar gets the opportunity to be, well, a bit more colorful if they want. They only need one juror on their side, giving them more leeway.

The first indication that Anonymous made a left turn when it should have made a right was when it picked the United States Sentencing Commission website to show its might. Nobody noticed, because, well, nobody cares about the USSC anymore.

Had this happened a generation ago, it might have meant something. Yesterday, it likely evoked a chuckle and a face palm.  Post Booker and some actual crack reforms, it was a big nothing. They posted the  screen shot of awesomeness together with another needlessly lengthy manifesto.

Anonymous has observed for some time now the trajectory of justice in the United States with growing concern. We have marked the departure of this system from the noble ideals in which it was born and enshrined. We have seen the erosion of due process, the dilution of constitutional rights, the usurpation of the rightful authority of courts by the “discretion” of prosecutors. We have seen how the law is wielded less and less to uphold justice, and more and more to exercise control, authority and power in the interests of oppression or personal gain.

We have been watching, and waiting.

The time has come to show the United States Department of Justice and its affiliates the true meaning of infiltration. The time has come to give this system a taste of its own medicine. The time has come for them to feel the helplessness and fear that comes with being forced into a game where the odds are stacked against them.

This website was chosen due to the symbolic nature of its purpose — the federal sentencing guidelines which enable prosecutors to cheat citizens of their constitutionally-guaranteed right to a fair trial, by a jury of their peers — the federal sentencing guidelines which are in clear violation of the 8th amendment protection against cruel and unusual punishments. This website was also chosen due to the nature of its visitors. It is far from the only government asset we control, and we have exercised such control for quite some time…

Finally, I wonder if this incident won’t affect the Supreme Court’s approach to cybercrime issues.  As Frank Rizzo once said, a conservative is a liberal who’s been mugged.  If that’s true, every time Anonymous mugs one of the Justices in cyberspace, it could be making the Court just a little less enthusiastic about limiting the tools the government uses to deter computer crime.