News alert: It is no longer legal to beat your wife in Topeka!

I often complain about the rampant criminalization of basically all behavior as well as the subsequent abuses for which enforcement of said criminalization provides the rationalization. I am one of those outlying few who believe that there are way too many criminal laws that in turn give way too much power to police and prosecutors (who, like other humanoids, are prone to abusing power.) Even Scalia agrees to some small degree (and for less compelling/scary reasons) that some of our criminal laws are problematic.

But today, I will take what could seem at first glance to be an inconsistent, but equally controversial stance:

Beating your wife (or husband or child or other family member) is bad.

Stepping past that intensive lesson on right and wrong, we jump to Topeka, Kansas, where (according to Gawker and NYT) budget cuts recently had city and county prosecutors fighting over who had to prosecute some of Topeka’s misdemeanors. This, like most political standoffs, resulted in a perfectly logical solution: they stopped prosecuting domestic violence for a couple of weeks. Only after the story attracted the attention of basically everyone in the country who writes news about this kind of stuff did they decide to get back to going after wife beaters (the persons, not their attire, which should also be illegal, but probably only if exposed to the public.)

Now, my understanding of economics is somewhat limited, and I in no way believe that I can solve anyone’s budget problems. But I am willing to bet that Topeka spends quite a bit of law enforcement/prosecution money on shit they don’t need (like this) and on crimes that, unlike domestic violence, do not by their very definition involve a victim (see drug possession, etc.). Call me crazy, but I would think about selling my war toy or letting that stuff slide before I legalized domestic violence. I certainly would not need national media attention to bring me around to those realizations.

Which leads me out onto my final limb (for this post): That was dumb.

Sorry if I blew your mind.


Phone Search Update: California governor hates civil rights

Last week, I wrote about a bill that, if passed, would have put California at the forefront of electronic privacy protection. The bill coasted through California’s legislative bodies with little resistance and only the Governor’s signature stood in its way. I’m sure you have already guessed, based on the title of this post, what happened to the bill.

Wired reports that Jerry Brown vetoed the bill, explicitly deferring to the Cali Supremes’ recent decision allowing police to search a cell phone incident to arrest. Brown believes the courts are better situated to answer questions that require application of the Fourth Amendment to new and changing technology. Orin Kerr, at Volokh Conspiracy, was thus prompted to point out why, as he has previously explained, Mr. Brown is wrong.

Kerr notes the problem with his legislature-oriented argument in that Brown was given the power to override a limitation to (his own) executive power. Pretty easy to understand his incentive problem there. (Not to mention the thousands of dollars that flow into his war chests from law enforcement lobbies.) So the glimmer of hope that this bill represented is no more, and California remains a place where, just like in most states (including the ones where I and probably you live and hang out) police get to do whatever they want because to limit them in any way tends to be bad politics and judges are basically an extension of the law enforcement machine. Even our “progressive” president hates civil rights.

On the bright side, the impending total police state will make life so unbearable here that we will eventually welcome our alien/robot/mutant overlords/destroyers or even the zombie apocalypse.









GPS Follow Up: Ohio court can’t wait

With the U.S. Supremes poised to hear oral argument in the GPS tracking case, U.S. v. Jones, in November, most of us can do nothing but sit and wait for the day when the police finally know every movement every person makes. Boy, will I feel safer then. (My previous comments on this issue can be seen here and here.)

But one Ohio court just could no longer bear the anticipation and went ahead and decided to protect the rights of some Ohioans, at least until a higher court smacks them down. (In addition to the pending SCOTUS case that would NOT prevent Ohio from giving greater protections under its state constitution, similar issues are also pending before the Ohio Supremes).

According to the Court of Appeals for the Fifth Appellate District of Ohio, police there, for now, will at least need a good lie reason and a rubberstamp magistrate to allow monitoring of every move a person makes.

Noting “an alarming trend whereby the privacy and dignity of our citizens is being whittled away by sometimes imperceptible steps,” the Ohio court held that BOTH the installation of the device and the monitoring of its movements implicated the Fourth Amendment and thus required a warrant.

It’s at least slightly comforting to know that there still exist in the judiciary decision-makers willing to protect the people from the increasingly terrifying military force that goes by the name “police.” I hope, without being too optimistic, that there turn out to be at least five such decision-makers on the Roberts Court.




Hat tip to the very informative (and often scary for those of us who don’t want police all up in our business)

Trial and Error, or Just Error?

Last week the New York Times picked up on one of my favorite subjects, the innocence problem (seen here) and I couldn’t possibly help but comment.  Not because the reporting was insightful, mind you, but because—as is more and more common in the news—it ain’t NEWS.  I was all ready to write a scathing article about how badly they’d missed the mark because defense attorneys in academia and practice have been trying to tackle the issue for at least 30 years but then I saw this blog piece which made my point; and kinda stole my thunder.

In some jurisdictions over 99% of charges are resolved by a guilty plea.  That’s the statistic that makes a lot of us pretty certain that people are pleading guilty to crimes they didn’t commit.  I like to think that I do my job correctly 99% of the time, but I’m pretty sure I’m the only one who’s that good and  I’m certain that less than 99% of police get it right 99% of the time.  Lots and lots of papers have been written about the innocence problem:  some people try to argue that innocent people aren’t pleading guilty, the more reasonable papers explore why it might be happening, and there are even suggestions for how to fix it and more skeptical papers about how fixing the problem would be too light on crime and, therefore, politically unfeasible.

One aspect that no one seems to discuss much is that trial is a really valuable thing. Not only is it a constitutional right and all that mumbo jumbo, but it’s a very effective way to train police; to help them get closer to that 99% mark.  Criminal defense attorneys spend a lot of time decrying the police for their dishonesty in court, but it goes a lot further than that.  Police need to be trained to really pay attention to what’s happening and take good notes on it right away so that they have the opportunity to be honest about what they observed rather than trying to recollect something a few weeks after it happened and pick the story that makes them out to be a hero.

Now I’m sure a lot of you are thinking that that’s what police academy is for.  I’m sure they try, but I can tell you from personal experience that normal police training is not getting the job done.

Just last week I encountered an officer that could use some good on-the-job training.  His story was silly and his actions were anything but reasonable.  He told me at one point that a Ford F-150 had driven right over a median that is raised four feet from the rest of the road.  Did I believe him?  Of course not (I happen to know that those medians aren’t raised any higher than a sidewalk for starters).  The suggestion was ludicrous and obviously untrue:  even putting aside the fact that the officer’s account disregards the laws of physics.  If something similar to what he “observed” had happened there would be a lot of physical evidence to back it up, but the truck that was involved was unscathed as was the sidewalk-height raised median.

It gets better.  After this truck somehow jumped a four foot embankment the driver was stopped and the officer spoke to the occupants.  One was highly intoxicated and emotional:  screaming and crying and flailing about.  The other was the driver who took and passed several roadside sobriety tests and didn’t talk much.  The officer decided the sober driver was lying about everything and the hysterical drunk was being completely forthright and honest.  The driver said he understood he wasn’t supposed to make a U-Turn (the cop didn’t ask about the median thing), but that he had done it because his hysterical passenger was grabbing the wheel and he was approaching a very busy intersection, but the cop didn’t like that story and chose not to believe it.  Instead he chose to charge the driver with a criminal offense.  In short, this young cop either misremembered everything he was supposed to observe and report or he just lied about it to try to distract from the fact that he took the story of the hysterical drunk (who refused to testify about the events) at face value and disregarded the simple and reasonable explanation of the sober driver.  Either way, that cop needs additional training.

I think the best training he could have been made to endure is the Blitz Legal/Patrick Woolley style of cross examination that is designed to make stupid foolish lies appear to be stupid and foolish.  Had a decent trial attorney had the opportunity to cross examine this officer he would probably react differently the next time a truck uses its hyperboost to jump over a wall and a drunken psychotic screams about unfounded accusations.  As a former law student, I firmly believe that public embarrassment is a strong motivator and a quick way to teach a lasting lesson.  After saying foolish things once and being called out for it in a public forum, one is much less likely to say foolish things in the future.

Unfortunately for me, and for that cop, and for everyone who has to deal with that cop in the future, this case didn’t make it to trial.  The unfettered discretion that prosecutors have (that the NYT is suddenly so concerned about) can be used both ways.  Rather than ratcheting up the charges or something—which would have encouraged the driver to go to trial—the prosecutor gave the driver a deal that was so light he couldn’t refuse it.  Did the driver plead guilty to something he wasn’t guilty of?  Probably, but it was worth it for him.  The real tragedy I see here is that, because prosecutors tend to take cops’ statements at face value, the cop in this case didn’t get the on-the-job training that he desperately needs:  he was simply patted on the back for his good work and service.  One of these days, I’m sure an experienced attorney will train that young cop up a little, but until then he is going to treat citizens the same way he treated that driver, because he has no incentive to do otherwise.

No officer, you may not touch my baby that way

My Baby







When trying to get one of these blog things off the ground, it’s probably not the best idea to limit your audience too much. Regardless, I have recently posted pieces directed at some pretty exclusive groups, namely, those who have stuff and those who use technology. As evidence of the poorness of that blog marketing strategy, neither of those posts has exactly gone viral.

Anyhow, I refuse to be slave to the masses, and I will write whatever and to whomever I want. So today, I even further restrict my audience to those elite few out there with some sort of smart phone. So as to accommodate at least a marginally larger audience, I will define smart phone as anything that you carry around that makes phone calls and connects to the interwebs.

Now, normally when I write about phones and criminal justice, I’m talking about how your phone can be used against the police. But today, out of a sense of fairness and balance, I address how the police can use your phone against you.

First, a little background:

The Fourth Amendment is supposed to protect us from unreasonable searches and seizures. The Supreme Court has distorted that simple concept to allow police to do all sorts of bad stuff for all sorts of reasons that have very little to do with reasonableness. Today’s example is the “search incident to arrest.”

Basically, the Court has held that if you are lawfully arrested, police may search you. The original reasons for this type of search were (1) officer safety (the police trump card for most 4th Amendment violations) and (2) potential destruction of evidence (also pretty effective police argument in many 4th Amendment violation situations). The Court first decided that officers could search arrestees without a warrant to make sure they didn’t have weapons with which to harm the officers and to make sure they didn’t destroy evidence post-arrest. Not completely insane, right? Just wait.

The Court has since expanded the search incident to arrest to allow officers to search any container in any area that was recently within your control prior to your arrest, just to fish for evidence. You see, the Court likes to make bright-line rules that are easy for police to follow so that police never even have to consider silly abstractions like the reasonableness requirement contained in the Fourth Amendment.

So what does this have to do with your phone (as if you haven’t figured it out already)?

Well, the natural implication of the Court’s logic and holdings is that if you are arrested, police may search your phone (a container) for evidence, without a warrant and without any suspicion that they will actually find anything in there.

Few courts have really tackled this exact issue so far, but most have rubber stamped police intrusion into texts, phone books, and other phone data following a “lawful” arrest. Here in Virginia, there don’t seem to be any state cases directly on point, and the 4th Circuit has allowed searches incident to arrest of electronic devices including phones.

Some of you may be thinking that I wasted your time making you read this far by not limiting the audience even more at the outset to only include criminals.

“Well, I won’t ever get arrested so why should I care?”, you might say.

I would make two points:

1) Criminal laws are so extensive that no one knows everything that is illegal. The Wall Street Journal today lamented the federal government’s overcriminalization addiction and its exclusion of mens rea (criminal intent) from endless numbers of criminal laws, so that more and more people are committing crimes without even knowing it, much less doing it on purpose. As the WSJ article points out, the maxim “ignorance of the law is no excuse” no longer makes sense when no human can possibly know all the laws because the government has criminalized almost everything.

2) Most states allow for arrests for minor offenses (even though arrests may not be all that common). And the Supreme Court has already said it’s okay to arrest someone for something as minor as a seatbelt violation (See Atwater v. Lago Vista). And all states have criminal and traffic codes so extensive that police can follow anyone for a few minutes and pull them over and cite them. AND that means just about everyone who drives could be arrested if some pseudo-military government thug wants to fuck with them.

So basically any of you could be arrested at any time at the whim of a government thug. At that point, according to the logic that follows from the Court’s existing search incident to arrest doctrine, said thug can go through anything and everything on your phone.

One state (unfortunately not one of the ones where most of you, my current readers, live), has taken a huge step toward protecting its people from these unreasonable intrusions into the vast amounts of private information that can be stored in a phone. The California legislature just unanimously passed a bill that, if signed by the governor, will make it illegal for police to search a portable electronic device without a warrant.

It is unfortunate that courts have become so complicit in law enforcement destruction of civil rights that the 4th Amendment no longer protects us from unreasonable searches and that legislatures have to make new laws to fill in the gaping holes that the courts and cops have created in the Bill of Rights. But it is encouraging that at least one elected body has recognized the problem and done something to protect the people it represents.

Every state government (especially the one in the state in which I live) and the feds should do the same.

If the courts will not protect us, we have to take action to protect ourselves. Chances are there is someone who represents you who you can contact with that little machine in your pocket (the phone, I mean) who needs to know that you would like your rights protected (Here is a good place to find their info).

Let ‘em know. And spread the word.


Be the power.


I didn’t know Troy Davis. In all likelihood, neither did you.

I also didn’t know the facts of his case. But again, neither did you.

And neither did the Georgia jury that convicted him and sentenced him to death.

I was having dinner with friends earlier when I rejoiced at a news scroll that gave me, in my eternal optimism and without audible commentary, the impression that SCOTUS had granted a stay to keep Troy Davis alive at least long enough for a non-southern-prosecutor-compiled-panel to consider the very strong evidence that he was probably not guilty. Being a person inexplicably subject to said optimism, I actually believed it was likely that the Supreme Court, the final arbiter of fairness and “justice” in this country, would at least take another minute out of their very busy schedule to look at the case to determine whether they would just hear argument as to whether Georgia had a reasonable basis upon which to justify this taking of human life.

I was wrong.

I have yet to write anything via this blog about the perpetual travesty that is America’s current capital punishment regime. And I won’t really expound on it now, mostly because I was (due to the aforementioned optimism and poorly worded news scroll) caught off guard and am currently somewhat crushed.

I can only hope that Troy’s story, and the countless other cases that have slipped through our justice system to allow state-sanctioned murder of people who are not guilty BEYOND A REASONABLE DOUBT, will someday alter the political landscape and effect change that will make this shit stop.

But for now, I am disgusted and disheartened.

And my optimism, that allowed me to misread that news ticker during dinner, has died a little.

This is bullshit justice.

UPDATE/CORRECTION: This p0st was, as any unplanned reaction to tragedy tends to be, factually incorrect (not to mention fairly poorly written). The Supreme Court did take a minute to think about Troy’s case. In fact, they took like four hours, while Mr. Davis was strapped to a gurney awaiting his death, to unanimously come up with a single sentence that allowed Georgia to go ahead and kill him. Regardless, it’s still bullshit.

Perjury Haiku

Police often lie.

In court, on stand, under oath.

Somehow that’s okay?

The L.A. Times ran this story the other day about a trial and acquittal after which the jurors were fully convinced, partially thanks to a video, that the police were flat out lying on the witness stand. The jurors have spoken out about the obvious police fabrication. But their calls for investigation into, and prosecution for, the three officers’ lies has been met with the official response that the officers made some mistakes and may need some more training. In fact, one of the officers has been retrained so well in the brief time since his perjury that he has since been promoted to detective.

In case you were not aware, perjury is a crime when normal people do it. When police do it, however, it’s just part of the job. And it rarely gets noticed, except by the defendant and counsel. A common sentiment amongst those who don’t know any better is “Why would they lie?”

It seems so obvious (unlike the reason why this post is bookended by haiku, which even I don’t really understand), but I’ll explain:

Police have a stake in the outcome of criminal trials. They make arrests and they want them vindicated in court. They prefer a specific outcome at trial. That is the definition of witness bias. In economics, they call it an incentive.

Further, officers face little or no counterbalance to their incentive to lie. As evidenced by the Times story, police don’t get punished even when they are caught and called out for lying in court under oath. Some get promoted.

Now, I’m not saying all police are perjurers. Nor is every false statement by police on the witness stand an intentional misrepresentation of fact. Police, despite some of their delusions, are people too, and thus subject to the same flaws of memory and perception that we all are.

But some cops do lie.

And they get away with it.

Justice, that is not.

Shocking Justice

You may or may not know about Paul Bergrin’s illustrious career.  You may think he’s the greatest (or Baddest) trial lawyer in Jersey history, or you might think he’s a thug/conspirator/criminal lawyer.  You might think his decision to represent himself is stupid or crazy or foolish, and initially I would have disagreed:  I mean if you’re really the best at your job, why not be the one doing it when the stakes are highest?

Judge Martini really changed the calculation though, when he ruled that Bergrin will have to wear an electric-shock ankle bracelet during the trial.  That’s right folks, the attorney for the defense will be subject to painful electrical shocks if he steps out of line at trial.  This strikes me as a questionable request/order from individuals who took an oath to uphold the constitution, but let’s think it through one step at a time.

If you are accused of a crime you have the right to have an attorney assist in your defense, or you can choose to represent yourself if you’d like to.  You also have a right to have your case heard by a jury of your peers who is supposed to presume your innocence so that they aren’t prejudiced against you.

But apparently, at least according to Judge Martini, it’s okay for the court to prejudice the jury against your attorney.  So if you choose to represent yourself they might just tell the jury that you are dangerous—so dangerous in fact that you have to wear an ankle bracelet and receive electrical shocks if you do something the court doesn’t like.  How exactly is Martini planning to bring this up:  “the defendant is accused of being a dangerous man.  You are to presume his innocence.  I however do not have to presume his innocence, nor do I.  I believe he is very dangerous and therefore I have authorized the government to administer electrical shocks if the accused does anything foolish.”

It’s not really clear what the standard is for when Mr. Bergrin should be electrocuted.  The government’s argument is that the bracelet is merely to limit his location within the courtroom, but if that’s the only reason for it, I wonder why the four armed U.S. Marshalls in the room are insufficient.  Furthermore, Judge Martini’s admonition that Mr. Bergrin will receive a shock if he does “anything foolish” seems to indicate that his location isn’t the only thing the court is trying to control.

So who is to decide if Mr. Bergrin “does something foolish,” you may be wondering.  Well, it’s the U.S. Marshalls.  Not the judge, not the jury who is supposedly being protected, but the government that is prosecuting him.  Constitutional issues aside, this is obviously not in the spirit of an open and honest adversarial system.  The Feds have investigated Bergrin and are now prosecuting him.  The Feds requested that he should have to wear an electrocution-torture device, and now the Feds are in charge of deciding when he gets electrocuted during trial.

I’m quite confident that I’m not the only person that sees some pretty serious problems with this.  In fact I’m positive that (ifff Bergrin is able to get an interlocutory appeal of the decision or he can later prove that this absurd decision had a “material” effect) Martini’s ankle bracelet decision will be overturned.  Given the standards for interlocutory appeals and harmless errors though, I’m pretty sure that he’ll just have to accept the court’s decision, take all the pundit’s advice, and hire a frickin’ lawyer.

Recording the Police: Wookiee tested, Gangster approved!

This is Chewbacca.

Chewbacca is a Wookiee, from the planet Kashyyyk. But Chewbacca lives on Endor. That does not make sense. Why would an eight foot tall Wookiee want to live with a bunch of 3 foot tall Ewoks? That does not make sense. Why am I talking about Chewbacca? That does not make sense.

That is roughly the substance of the opening to the famed Chewbacca defense, employed by Johnny Cochrane in defense of Capitalist Records in their case against Chef over the rights to the song “Stinky Britches.”

So what does the Chewbacca defense have to do with recording the police?


Which is about what a generally bright 7th Circuit judge’s statements and questions had to do with the substance of an ACLU argument before a 3-judge panel last week. Judge Posner and two others heard oral argument last Tuesday in the ACLU’s constitutional challenge to the Illinois wiretapping law that makes it illegal to make audio recordings of anyone anywhere, including police in public, without their consent, and Posner was not making a whole lot of sense.

The ACLU’s argument is pretty focused and simple to understand: When police are in public performing public duties, under current Illinois law, individuals are allowed to film them, photograph them, listen to them, and even take copious detailed notes on their conversations. But the Illinois wiretapping law makes it a crime to make an audio recording of the same activity. Because the governmental interest in this incremental regulation is insufficient to outweigh the First Amendment right to gather information of public concern in public, the wiretapping law is unconstitutional.

Let me repeat that we are dealing with public officials conducting public business out in public.

So what were Judge Posner’s main concerns during the argument (click here to listen to the actual arguments for yourself)?

1. The first thing he brought up, interrupting ACLU’s counsel before he even uttered a full sentence, was the privacy interest of the third party who is speaking to police. Posner repeatedly voiced concerns that a person who is speaking to police out in public has a privacy interest in the speech (I’m with him so far) that would be violated by audio recording but not by eavesdropping and transcribing the entire conversation verbatim. That does not make sense.

2. Another issue Posner brought up was the potential effect on police operations. Specifically, he presented the hypothetical of a police officer speaking to a confidential informant whose identity the police have a very strong interest in protecting. In public. Where people can film, photograph, and listen to the entire interaction. IN PUBLIC. Here, I will quote the ACLU attorney: “That doesn’t make any sense.”

3.  My personal favorite issue that Posner raised is that gangsters will “rejoice” in the ACLU’s rule if they prevail. Try to follow the logic here: a gangster might see another gangster talking to the cops. Under the current statutory scheme, that gangster could legally film, take pictures, take notes, etc., but could not create an audio recording. So the gangster sees this interaction and goes back to the gang headquarters and tells the other gangsters what he saw AND HEARD. Without proof, the other gangsters might just disregard what he tells them because they think the alleged snitch is a “good guy.” HOWEVER, if the ACLU wins this case, the gangster could create an audio recording to take back to gang headquarters and the informant gangster would be totally screwed. Therefore, the ACLU’s proposed rule change is bad.


4.  At the close of the ACLU’s rebuttal, the very last question that Posner posed was essentially “what about a couple walking down the street talking about sex, and anyone can just go up and record and broadcast that conversation?” Counsel responded correctly that Posner’s hypo has nothing to do with the First Amendment argument at hand – no public official and no matter of public concern.  To which Posner responded “I don’t know. People are interested in sex.”

Touché. That one I can’t really argue.

As for the rest of Posner’s concerns, if Chewbacca lives on Endor, you must acquit.

UPDATE: I guess you can keep using the interweb

An update on yesterday’s post about the Computer Fraud and Abuse Act:
Apparently the Judiciary Committee voted to amend the Act to preclude terms of use violations’ becoming felonies, for now.

Orin Kerr at VC shares the good news from someone else’s blog here.

Whew. That was scary. And now back to getting my ass kicked at Words with Friends.