10 September 2019

Constructive Flight

Judge Smith is not happy.

Defense attorney Greene is asking for the eighth continuance in the case and Judge Smith isn't having any of it.

"We were scheduled for a jury today. Tell me why we aren't having the jury and why I shouldn't reschedule the jury to start tomorrow?"

Attorney Greene: "Judge, my client told me two days ago that there is a document at Tiny-Local Bank that I'm going to need for this case."

Judge: "The last continuance in this case was three months ago. Why did she wait to tell you until this week?"

Attorney Greene: "Judge, she told the attorney who represented her in district court before the preliminary hearing. She thought when I replaced the other attorney that I got that information."

The Judge looks entirely unconvinced. "You've been her attorney for the last nine months. She didn't tell you about any of this vitally important piece of paper until three days before the trial?"

Attorney Greene: "Umm, Judge, I . . ."

[Quick conference with client]

Attorney Greene: "Judge, my client wants to address the court."

Judge Smith looks skeptical but nods his head.

Client: "I told my first attorney. Then she moved to Canada and you gave me this'un. I met with him when that first happened and I told him about the stuff at Tiny-Local. I didn't know he ain't got it until I asked him why this case ain't been throwed out, 'cuz, ya know, the stuff at Tiny-Local proves I ain't done it."

Judge looks really disgruntled now and engages defendant and defense attorney in a conversation wherein he tries to get someone to take responsibility for the vitally important missing document. That goes nowhere fast. Attorney Greene doesn't remember anything about a document and Client swears she told him months ago.

Judge Smith: "I think there was plenty of time for this paper to have been found. This is at least the third time this case has been scheduled for trial. If the paper was so important it would have come up before the last two trial dates. I think we should bring the jury in tomorrow and get this done."

Up to this point, I have been sitting at the prosecution table minding my own business. Only now, I'm faced with a Hobbesian choice. I can either scramble to get a jury put together before 9 a.m. tomorrow (sleep is for wimps) and let a possible constitutional issue get baked into the case or I can come to defense counsel's aid and possibly get my head chopped off. Being the adventurous (and slightly stupid) type, I stick my head right into that guillotine.

Me: "Judge, far be it from me to help a defense attorney dig his way out of a hole . . ."

Judge Smith's eyes' pin my soul to the back wall of the courtroom and clearly convey the idea that this is not the time for levity.

" . . . but, I'd rather not invite error . . ."

Judge Smith gives me a get real look. "I don't see any error here. This is something which the defendant had plenty of time to deal with and is raising only as she is required to go to trial."

Okay, it's pretty clear that Judge Smith believes this is just something being used to delay the trial. For what it's worth, I tend to agree with him. Unfortunately, you never know if an appellate court might go off on a tangent and staying up all night to prep, while doable, probably isn't a great idea. I need my beauty sleep (there are those who might argue I need a several year long beauty coma).

"Sir, if you think it appropriate you could find the defendant has committed constructive flight if you think that the defendant is playing games meant to keep the trial from happening."

At that, the judge's face turns thoughtful. The defendant gives me a quick, sharp WTF is wrong with you look. The judge takes a few seconds to turn some thoughts over in his head. Then he takes a close look at the defendant.

Judge Smith: "Mr. Greene, can your client pass a drug test?"

Client jerks like she's just been kicked and you guessed it, Client turned up positive for cocaine, alprazolam, and and buprenorphine. Judge Smith revokes her bond.

Client: "If'n I'm going to jail, I want my jury tomorrow."

Judge Smith: "No ma'am. Your Attorney needs time to get the document you need for your defense from Tiny-Local Bank. The docket is busy for the next month. We'll set this for the 22nd of next month. Good day, ma'am."

So Endeth the Story

06 September 2019

For Want of Moral Certainty

Once upon a time, the standard for guilt in a criminal case was "moral certainty." For instance, in Anderson v. Commonwealth, 83 Va. 326 (1887), the Virginia Supreme Court said of certain evidence "The most that can be justly said of it is that it merely excites suspicion against him, which is a very different thing from proving his guilt to a moral certainty." Since this was a case concerning circumstantial evidence the moral certainty language has to be carried forward into modern Virginia case law involving circumstantial evidence: "there must be an unbroken chain of circumstances proving the guilt of the accused to the exclusion of any other rational hypothesis and to a moral certainty." Taylor v. Commonwealth, JUN18 VaApp no. 0687-17-1 (U). See also, Nebraska v. Sandoval, 511 U.S. 1 (1994)(explaining that "moral certainty" instructions in the 1850's were the beginning/basis of the beyond a reasonable doubt standard). However, actually using "moral certainty" has fallen out of favor in modern jury instructions.

Why? Well, I'm certain all sorts of sophistic reasons have been given, but I think that the reality probably breaks down to two things. First, the assumption of a common morality fell out of favor in the universities and the relativistic viewpoint eventually became common and accepted amongst those educated in them so that it "moral certainty" became something considered at best poorly phrased and at worst harmfully anachronistic. That placed the judges and academics against it and probably those defense attorneys that didn't think it through too much. Second, the prosecutors went along with dumping it because "moral certainty" comes across as a much higher standard than "beyond a reasonable doubt" no matter how many times we're told they are the same thing.

So, how do you deal with the relatively more benign "beyond a reasonable doubt" standard if you want to beef it up? CrimProf Blog points to an Article set to be published in W&L Law Review which has a prescription for this by Michael D. Cicchini: Reasonable Doubt and Relativity. In it, Mr. Cicchini provides an interesting study he has done in which he shows that instructing jurors on lower civil standards in comparison to beyond a reasonable doubt raises the point at which a juror is willing to convict. I leave it to people more adept at statistics and procedures of conducting a study to address his methods, but I'll say that his result feels right (not always a perfect barometer, but often all we truly have). I was going to say I didn't think the case he presented to his study group could make it to a jury past whatever motion a particular jurisdiction uses to show legal failure of the evidence (motion to strike, directed verdict, judgment as a matter of law, &cetera), but I guess if the prosecution got leave to call the victim as a hostile witness it might pass muster. In any event, whether the case was legitimate isn't the point. The differences in the levels of confidence needed for a conviction with and without contrasting beyond a reasonable doubt to lower civil standards is the point.

As best I can tell, a majority of those not given an instruction comparing the standards (Group A) were confident of guilt at somewhere between 60%-70%. A majority of those given an instruction comparing the standards (Group B) were confident of guilt at somewhere between 70%-75%. I really wish this study was more large scale and granular. While it confirms my beliefs, I don't know how strongly.

I agree that the comparison should be pointed out to the jurors. In fact, back in the beginning of time when I was a defense attorney, I had a whole spiel I either used in voir dire (remember Virginia does mass voir dire) or in closing starting at reasonable suspicion, going through probable cause, emphasizing preponderance, and pointing out there was even a higher standard than that - clear and convincing - before we even start to talk about beyond a reasonable doubt. More important than my agreement, the courts of Virginia agree that the comparison should be pointed out.
The burden is upon the Commonwealth to prove by the evidence beyond a reasonable doubt every material and necessary element of the offense charged against the defendant. It is not sufficient that you may believe his guilt probable, or more probable than his innocence. Suspicion or probability of guilt, however strong, will not authorize a conviction, but the evidence must prove his guilt beyond a reasonable doubt.
 (From Jury Instruction on Conviction Standard)
It's not exactly what Mr. Cicchini is asking for, but it's pretty close.

However, I think Mr. Cicchini is particularly wrong on one point. If we are going to bracket beyond a reasonable doubt from below, we need to provide the bracket from above as well. I guess this is where I as a prosecutor offer my "poorly reasoned, kneejerk complaints."😎


The upper bracket is needed because there is always the possibility that space aliens landed in the backyard and stole the money that grandma kept in the safe rather than grandson Bobby (to whom all the evidence points). There's always something a juror can fasten upon such as "He's a Taurus and if the moon was in the third quadrant he would have too involved with romance to rob a bank." These are not reasonable doubts.

Of course, a defense attorney will come up with better hypotheses than those, but if he's competent he'll come up with something. Standing pat on a "they didn't prove it good enough" defense is an extremely dangerous place to be and if you want to talk about something that would probably drop the level of confidence a juror would need to convict this is it. And, no, I'm not saying a defendant has a duty to produce evidence or explanation. I'm just talking about realities in front of a jury and I've seen plenty of good defense attorneys stand in front of jurors without having put on a lick of evidence and weave a tale of possibilities in and out of the prosecution's evidence.

The jury has to determine if any doubts it comes up with itself or is fed through the good offices of the defense attorney are legitimate. Nowadays, as a prosecutor I bring up in voir dire or closing argument the difference between "beyond a reasonable doubt" and "beyond all possible doubt." Once again, more importantly, the courts in Virginia point this out to juries.
The burden resting upon the Commonwealth to prove guilt of the defendant beyond a reasonable doubt does not require that such guilt be proven beyond every imaginable, conceivable or possible doubt, but only beyond a reasonable doubt.
(From Jury Instruction on Conviction Standards)
Mr. Cicchini devotes a small section decrying this, but I think the Virginia jury instruction is solid. Of course, eventually the jury sorts out which doubts are reasonable or not. This instruction merely informs them they have to stick to those doubts which are reasonable. It's the defense job to push the "beyond a reasonable doubt" standard as high into the stratosphere as it can and I don't begrudge them that. It's the job of the judge, through jury instructions, to tell jurors that they don't have to go as high as the defense would like them to. Could the instruction be more concise? Probably not. Lawyers aren't capable of writing anything concise. I'm pretty sure it's somewhere in the Bar's ethics rules. If the jury instruction just said "You shall neither consider nor create explanations that are unreasonable in determining if someone is guilty beyond a reasonable doubt" anybody could understand it and we wouldn't have things to quibble over.

And on a slightly different point . . . 

Let's be honest, while we lawyers do tend to quibble endlessly over jury instructions, they are far from the most important factor in the outcome of a case. It's my opinion that quite often the primary factor is the potential jury pool. Trials in an affluent suburb are going to get different results than those in rural farm country and both of those are going to get different results from a jurisdiction where there's a lot of impoverished, unemployed former coal miners and their families getting checks from the government.

Next time you think that jury instructions are terribly important, sneak a peak at the jurors as they are in minute fifteen of jury instructions being read at them. Then explain to me how terribly important it was that y'all argued for twenty minutes over the placement of that comma in the instructions. It's fun to argue all these points, just don't lose track of the truly important parts of trial craft.

03 September 2019

The Indeterminate Zone (Sentencing with Parole Baked In)

In the 1970's a man killed a police officer in NY and was sentenced to 25 years to life in prison. After several attempts to gain parole, the Parole Board finally decided to award it to the man. The wife of the police officer tried to intervene to stop the killer of her husband from being released. She failed.

Over at Simple Justice, Scott seems to think that the only time for the wife to put in her 2 cents worth is at the sentencing. He's not happy that the NY Legislature has required the Parole Board to pay even minimal heed to victims such as the wife. If NY sentencing worked as Virginia's does, I'd agree. Unfortunately, it does not. NY exists in the indeterminate zone (That's the signpost up ahead.)

If a set sentence was given after the wife testified it would have all been concluded. Assuming the appeals process didn't turn up a reversible error, the whole thing would have been settled and the wife could have gone on with her life as best she could.

Unfortunately, this all happened in New York and that meant the entire thing was subject to a determined indeterminate sentence. As best I can tell looking at NY Penal Law Art. 70 sec 70.00 (a little confusing because they were amended 01 SEP 19), there wasn't any choice in the judge's sentence. Under subsection (2)(a) "For a class A felony, the term shall be life imprisonment." Under subsection (3)(a)(i)(A) "where a sentence, other than a sentence of death or life imprisonment without parole, is imposed upon a defendant convicted of murder in the first degree as defined in section 125.27 of this chapter such minimum period shall be not less than twenty years nor more than twenty-five years." It doesn't look like the judge had any choice in his indeterminate sentencing.1

Anyway, baked into a system of indeterminate sentencing is a long term process of determining the sentence. The sentencing isn't actually done by the judge. The legislature gives the judge parameters within which to sentence. In some cases, the judge may narrow the parameters of the sentence even further. The people who determine what the sentence should be within those parameters are those sitting on the Parole Board. Effectively, the Parole Board sentences. In the end, it is the organization which determines when the damage to victims and threat to society is overbalanced by how much the defendant has reformed or at least become less of a threat to society.

The argument in favor of this kind of sentencing is that it gives an incentive for the convict to reform and make himself into a person who should be released back into society; the quicker he reforms, the quicker he gets back. The problem is that in order to figure out where the balance stands each time a person comes up for parole there must be another sentencing. Thus the need for the victim to testify each time. It seems, from what I can find on this case, that NY handles this basically through a review of paperwork and does not have or allow the victim come in to verbally testify each time; it only allows her to send in a report of her condition as a result of the crime. In any event, every so often the scab gets torn back off because the victim has to fight again to keep the convict in prison.

In the end it's a terrible system that builds in uncertainty, almost assuredly has created a massive bureaucracy to carry out the Parole Board's function, and causes continuing harm to victims because there's a yet another sentencing hearing every year or two. And yet, as long as this system exists and there is a perpetual sentencing process, the victim should be allowed to testify in it each time the balance is weighed. Who knows? She may have decided that her religious beliefs require her to forgive the convict and she won't be rabid about keeping him in prison. That wasn't the case this time, but I'm sure people would whine if she were forbidden from saying the convict should be released.

Better yet, scrap the indeterminate sentencing system and provide clarity in sentencing and closure to victims.2

1 Yes, I know that I probably got this at least partially wrong. NY has a complex statutory system that doesn't seem too terribly well organized. This poor old Southern boy just can't keep up. And my lack of knowledge of the intricacies is beyond the point anyway. Quit wasting your time reading this and go back up to the argument.

2  Yeah, I know it won't happen. When's the last time anyone in NY paid attention to someone in the flyover part of the country - unless, of course, they want to overpay to steal someone from our baseball team.

01 September 2019

Sexting is Not Only Stupid - It Can be Criminal

David Post, over at Volokh, is shocked, shocked! that a minor who films herself preforming a sexual act and sends it to others is distributing child pornography. Despite some of the interesting comments that followed the article, I don't think anyone who practices criminal law was terribly surprised by the ruling. On the legal merits, it's 100% correct. You just have to wonder why it was pursued.

For a long time, sexting among minors has been a nightmare for prosecutors. The scenario usually goes something like this: Mary, 14 years old, has found her true love, Bobby, 15 years old. Mary sends him all sorts of pictures of herself nude or semi-nude. Six months later she finds her next true love, Lawrence, and dumps Bobby. Bobby then spreads the pictures far and wide. The school gets involved (somehow the school always gets involved) and Mary's mother is on the warpath. She wants me to hold Bobby down while the investigating deputy drives a stake through the heart of the boy and then she wants him burnt alive and buried in ground that is specifically unhallowed and then she wants him dug up and sentenced to life plus cancer in prison.

As a prosecutor, you agree something should be done. However, spin it as you might, the boy's not the only party guilty of the distribution of child porn here. And, let me tell you, I'd rather be in a cage with an enraged gorilla than explain to another mother that if Bobby's guilty of felony distribution of child porn so is her darling baby girl. After all, those pictures didn't magically appear on his phone; they came from somewhere and they're pretty obviously selfies when the girl is taking a picture of herself in the bathroom mirror with the phone in hand. On top of which, tagging a young, stupid boy with a felony may be a little harsh in this situation, although something needs to happen to him.

The Virginia General Assembly helped with this quite a bit when it created a revenge porn misdemeanor in 2017: 18.2-386.2. Now, in the situation above the boy can be brought before the Juvenile Court on a misdemeanor that will disappear at 18. The court can handle it and Mary's mother will be somewhat mollified. On top of that, this is a much more proportionate handling of the situation.

It's not a perfect solution. Moms check their daughters' phones and find pics sent to a boy and go on a rampage demanding the boy be punished. Boys get pictures from girls and send them out to their buddies well before it could be characterized as "revenge." The only way to solve this problem entirely would be to make it illegal for anyone under eighteen to possess a cell phone. Or maybe legislators could write careful exceptions to the child porn statutes for those under eighteen (don't want to make 15-17 year olds child porn cutouts or forgive the 17 year old who solicited pics from 30 girls and published them all).

30 August 2019

It's only 23 years 11 months too late for the court to have jurisdiction.

Scott et al. over at Simple Justice appear to be upset at a judge for obeying the law: "So what if there’s no law enabling the judge to do it if both sides agree?"

Let's back up for a second and look at what this is all about. A trial judge in Missouri refused to reopen a 24 year old case which the elected prosecutor and a defense attorney moved for a new trial. This was clearly correct under the rules of the Supreme Court of Missouri:

29.11. Misdemeanors or Felonies - After-Trial Motions. . . (b) Time for Filing Motion. A motion for a new trial or a motion authorized by Rule 27.07(c) shall be filed within fifteen days after the return of the verdict.

All the judge had to do when the motion was filed was issue an order stating "Under Rule 29.11(b) this court has no jurisdiction. Case dismissed."

The prosecutor was obviously trying to act contrary to the law. Any trial lawyer who has practiced for any period of time knows how long the trial court maintains jurisdiction after the case is completed. After that the remedies are basically the same everywhere: habeas corpus or pardon. 

Habeas may be a dead end here. According to a commentator on Scott's post, the convicted man had already filed a habeas in 2003, alleged the same things the prosecutor is currently alleging, and failed after taking it all the way to the Missouri Supreme Court. Title XXXVI, Chapter 532 of Missouri's code governs its habeas procedures and 532.040 states
 532.040.  Second writ not to issue, when. — Whenever an application under this chapter for a writ of habeas corpus shall be refused, it shall not be lawful for any inferior court or officer to entertain any application for the relief sought from, and refused by, a superior court or officer.
I've not researched Missouri case law on this, but that reads like taking it to the Missouri Supreme Court may forbid anyone from addressing the same issues at a level below the highest court. In any event, courts are loathe to reopen the exact same issue again and again and again for fairly obvious reasons. There are people out there who will file fifty-two habeases to get out of their jay-walking conviction. Unless there's some impressive new evidence, the fact that the new chief prosecutor doesn't believe in an old conviction is fairly worthless in a court of law.

That leaves the governor's pardon power. Missouri's constitution states in Article IV section 7
Section 7. The governor shall have power to grant reprieves, commutations and pardons, after conviction, for all offenses except treason and cases of impeachment, upon such conditions and with such restrictions and limitations as he may deem proper, subject to provisions of law as to the manner of applying for pardons. The power to pardon shall not include the power to parole.
The governor could, without a doubt, pardon the person at the core of all this if he believed that person innocent. However, it is unlikely that the Democrat Prosecutor of St. Louis who reached a deal with the former Republican Governor to drop a felony charge against him if he resigned and is being investigated for her conduct in that prosecution is likely to work well with the new Republican Governor.

So, she had one workable option which is non-viable for political reasons, one possible option that would require a lot of work and might be bounced as redundant, and one option doomed by law. She chose the one doomed by law.

I'm not saying that she's alone in causing this kerfuffle. As I said above, the judge could have ended all of this at the beginning with a short, non-newsworthy order. Instead, she appointed the Attorney General to stand against the motion to reopen a case that had been foreclosed by law for at least 23 years and 11 months. You can't tell me that the trial judge didn't know the 15 day rule and needed more attorneys to be involved in order to count to 15. And then she issued a written opinion covering all the potential sins and perceived weaknesses of the prosecutor's position. No matter how well written and reasoned that was not going solve anything.

The prosecutor's office has promised an appeal. That's interesting because, as best I can tell under sections 547-200 & 547-210 of the Missouri Code there's nothing that authorizes such an appeal. I wonder whether the Missouri Court of Appeals will say "This court has no jurisdiction to hear your appeal. Case Dismissed." Probably not. Appellate courts can't say "Boo!" without a ten page opinion.

29 August 2019

The Court of Appeals sic'ed Me

I'm the guy in my office who gets tasked with writing most of our petitions for appeal. It's not too much of a burden since these don't happen all that often because prosecutors can only appeal under very limited circumstances. Anyway, recently I petitioned in Commonwealth v. Smith and the Court of Appeals was kind enough to accept the appeal on three of the five issues I raised. I was satisfied that some of my semi-brilliant legal research and writing had paid off. Then, while I was basking in my semi-glory, I read one of the errors accepted:
The trial judge erred in ruling that snipe hunting was legal in Virginia on 12 June 2017 [sic] as long the defendant was wearing a flannel shirt.
They sic'ed me! What the heck?

For those of you who don't know what "sic" means, its official meaning is "intentionally so written used after a printed word or passage to indicate that it is intended exactly as printed or to indicate that it exactly reproduces an original." In reality it means "I'm writing this erroneous piece of error exactly the way the poor benighted idjut wrote it."

OK, let's discuss why I would write a date in a concise manner that nobody can possibly misunderstand. It's because it's a concise manner of writing a date that nobody can misunderstand.

There are all sorts of ways to write dates. 12/6/17 and 6/12/17 mean the same exact thing depending on which continent you grew up on. June 12th, 2017 is unwieldy. If I had my druthers, I'd write 12JUN17 like the Army taught us to because it was entirely unambiguous. However, I compromise some and write 12 June 2017 because otherwise I expect to get sic'ed by lots of people who will use more ambiguous and unwieldy formats out of habit and societal norms. Bah humbug! There's nothing to sic here.

Now I'm tempted to see what I can write as a date and slip into my next petition for appeal. I'm leaning toward "In the year of Our Lord Two-Thousand and Seventeen, on the Twelfth day of the Sixth month - named in the vernacular after the pagan goddess, Juno." Or maybe I'll use dates ad urbe condita. Even better, because the judges could possibly, perhaps get a wee bit upset with me using the founding date of Rome, maybe I'll use לבריאת העולם or  التقويم الهجري . Lets see them ding me on one of those without triggering the PC Police.

Now all I have to do is go freshen up on my Hebrew and Arabic so I can remember how to write dates in them again.

08 August 2019

Detaining Car Passengers

via nbc15.com
Every so often we have to go back and cover well trod ground. This week I've had to face the question of whether an officer can detain the passengers in a car when he makes a legitimate stop of the car. I thought everyone understood that an officer can detain everyone in the car, but apparently some people haven't gotten the memo. So, now I get to go back and research it all over again.

A useful case to start with in Virginia is Thomas v. Commonwealth57 Va.App. 267 (2010). In this case, the Virginia Court of Appeals was kind enough give us a list of all the things that an officer can do during a legitimate stop:
• to obtain the registration for the vehicle and request the identities of its occupants,
• to seek radio dispatch confirmation of the information obtained from the vehicle occupants,
• to detain Thomas, a passenger, during the duration of the stop,
• to ask questions unrelated to the traffic violation,
• to order the driver and Thomas out of the vehicle,  
• to walk a drug-sniffing dog around the vehicle,
• to seize Thomas's handgun the moment they saw it
  Of course, this wasn't the first case in which the Virginian appellate courts had ruled passengers could be detained. As early as 1998 the Virginia Court of Appeals ruled that "police officers may also detain passengers beside an automobile until the completion of a lawful traffic stop."  Harris v. Commonwealth, 27 Va. App. 554, 562 (1998); see also McCain v. Commonwealth, 275 Va. 546, 553 (2008).

Ultimately, however, the basis of the ability of the officer to detain passengers during the stop of a car comes from a US Supreme Court opinion, Brendlin v. California, 551 U.S. 249 (2007):
An officer who orders one particular car to pull over acts with an implicit claim of right based on fault of some sort, and a sensible person would not expect a police officer to allow people to come and go freely from the physical focal point of an investigation into faulty behavior or wrongdoing. If the likely wrongdoing is not the driving, the passenger will reasonably feel subject to suspicion owing to close association; but even when the wrongdoing is only bad driving, the passenger will expect to be subject to some scrutiny, and his attempt to leave the scene would be so obviously likely to prompt an objection from the officer that no passenger would feel free to leave in the first place.. . . . . .What we have said in [prior] opinions probably reflects a societal expectation of unquestioned police command at odds with any notion that a passenger would feel free to leave, or to terminate the personal encounter any other way, without advance permission.

Reading through the various cases, it seems fairly obvious that the officer's ability to detain passengers was long assumed, because at first the argument seemed to be whether the officer could make them leave the vehicle while it was legally stopped and hold them outside the vehicle. But, of course, nothing can exist only in common sense. Eventually, there have to be court opinions to tell us what we already know.

19 July 2019

2019 New Virginia Laws - CLTV


Here's the pdf of my breakdown of the new laws (with notations of actual statute numbers). I suggest either printing or downloading it so you can follow along.

29 May 2019

Bring Back the Bloody Code?

Since about the 1800's Anglo-American jurisprudence has included a strong tendency to view the underpinnings of incarceration theory as a treatment model. Back then, our system was coming out of a particularly harsh period of punishment when a large number of felonies carried only one punishment: death. Reformation of that system came at least partially as an attempt to save the souls of convicts. After all a "cell" is the living quarters of a monk and the thought behind locking a criminal in a cell (with a Bible) was that he would examine himself, read the Good Book, and come out a new and better man.

Of course, like all nice, well reasoned, and well meaning theories, once you examine it closely enough to view reality it gets messy and the theory gets off the rails - usually fairly badly. How many criminals went to prison, were furnished with a Bible, and came out better men? I don't know and you don't either. However, I'm willing to bet that a lot of people who read that question smirked in disbelief that many did. I'd also bet that a lot of prisoners learned to say the right words and phrases to play into the system and sound like they were repentant souls when they went back in front of the courts of their day. On the other hand, some percentage of them were surely helped and we will never know how many. This is problematic.

The difficulty with "treatment" instead of punishment is that it almost never yields concrete, easily understood, irrefutably good results. If the current level of inundation with social media had existed when the system was reformed so that felons were imprisoned over a long periods instead of hung or decapitated, I'm sure we would have plenty of examples of tweets, blogs, and videos with people railing against the "wussification" of the system and complaining that there was no proof that the newer, more expensive model provided better results. And they'd probably have been right because people who are still alive will re-offend while dead people won't. Without a doubt, the recidivism rate experienced a rather large increase.

All the above is in the way of saying that penological behavior isn't entirely linked to practical reality, but it's strongly influenced by the philosophy that people bring to it. If society is in a more "realist" zone it locks people up to remove them from society and provide an example of what will happen if others engage in the same behavior. If it's in a more "fix'em" mode it engages in whatever the well meaning of that time think will make the criminal "better." In the past this meant trying to save their eternal souls and getting them to act correctly as a moral matter; in modern times it means mental fixes meant to get people to behave better as more of a self help idea. If a society is in more of an "equipoise" mode it will try to punish at a level which balances out the crime. Of course, the reality is that while the societal treatment of offenders varies as different beliefs come to the fore none of these has ever entirely excluded the others.

Lately, the trend is to roll back the reform of imprisonment. Somehow, I doubt those wanting to roll back imprisonment are advocating that rabbit poaching and pick-pocketing should result in the imposition of the death penalty. I could be wrong. Maybe the deep, long term goal of the head prosecutors getting elected in the big cities on promises not to incarcerate is to bring back the olden ways. Who knows? I can't read their minds any more than y'all can and it's a little cynical to believe they are just doing it because that's the political promise that will get them elected.

13 May 2019

Delhi Crime

Delhi Crime may be the best thing I've seen on Netflix for years. Not kidding.

The story is a fictionalized telling of a brutal rape/murder that happened in Delhi, India. A young man and woman got on a bus to ride home and six people on the bus beat both of them and raped the woman so viciously that she died from her wounds a couple weeks later. Unlike American television, the Indian show doesn't feel obligated to shock us by showing the actual event, but builds the shock, horror, and disgust through reactions and descriptions. It's more of a slow burn and it works well as it mixes with the frustrations of the officers as the case unfolds.

The show follows the police from the moment the two victims are found naked in a ditch next to the road by officers thru their trip to the hospital and the notification of the regional commander. The regional commander arrives on scene and quickly realizes that the local department has a poor commander and isn't up to the task. She pulls in her own team of investigators, sets up shop in the local precinct headquarters, and personally takes command of the investigation.

And the police jump in with both feet. Unfortunately for them, circumstances conspire to make their lives miserable and interfere with the investigation. In fact, it appears that the very concentration of effort they are making causes their political masters to become aware and start trying to use the circumstance for political gain no matter how detrimental the political maneuvering could be to the case. One politician tries to use the circumstances to force out the head of the police force and get himself a particular cabinet position. A judge also opens her own investigation into the way police are handling the investigation (while it's ongoing). Meanwhile, the media is badly misreporting several facts that make it seem like the police are absolutely incompetent and uncaring while the police can't say anything because of the ongoing investigation. And then there are the protesters/rioters. They pop up suspiciously quickly and keep gaining in size and intensity. Because of this, when the police finally catch some of the perpetrators they have to sneak in and out the back of the police station by climbing over a fence.

Through some pretty competent police work, they catch the first few rapists. Then they have to really dig in to get the remainder. Eventually, they are sending teams out to rural villages to track down the suspects because they have scattered. One set of officers have to wade a river to go to the home of one suspect and arrest him; then they have to wade back with their suspect. Another set of officers ends up in an area where there is a Marxist rebellion ongoing and the local police force is more like a military occupation force than law enforcement. There's even a part where an informant leads them on a wild goose chase because he wants them to arrest a guy who made fun of him in front of a girl he liked.

In the end they get all the perpetrators within five days and all the political maneuvering is short stopped because the police have done an amazing and almost impossible job of catching 6 people in a country of 1.5 billion despite not having adequate resources and being hindered by the press and their political bosses. During the entire time, all the officers live in the precinct house and sleep is something that is in short supply. They just hunker down and get it done. It's impressive (and it was in real life too).

The atmosphere in the series is one that clearly shows that this was not filmed in the U.S. It was filmed in India and as such we see what we would characterize as widespread poverty and overpopulation. To them it's just normal life. It comes across incredibly realistic. It's also a good police procedural. There are no supercops here and nary a single lone wolf cop out there on a crusade to make the world a better place. Nope. This is as close as I think you can get to a realistic portrayal of how difficult policing is in a large country with a massive population and lots of impoverished people. It also shows that - even with all the inherent disabilities - when they decide to do it right they can accomplish impressive things.

In case it isn't already obvious, I highly recommend this series. I do have one bit of advice though. If you are not used to listening to English with an Indian accent you may want to put your subtitles on for the entire series. They switch back and forth between Hindi and English all the time and while the Hindi is automatically subtitled, the English is not. I've heard English with an Indian accent often enough that usually it's not a problem for me. Still, more than a couple times the switch to English came so fast that they were on the second sentence before my ears realized they were speaking English. 

I give Delhi Crime a rating of 4.5 out of 5.

06 May 2019

Did Duke Law Abandon the 1st Amendment?

So, I'm between watching episodes of Delhi Crime and I start perusing the web to see what is going on and checked in on Scott's ongoing fight against all things found in the idiocy of youth and inexperience. There, I found out that the 1st Amendment Clinic at Duke Law has motioned a district criminal court in Texas for leave to file an amicus brief in support of the prosecution *GASP* in a case called Texas v. Rivello (as well as including their brief with the motion; sneaky that). As best I can tell Rivello is charged with felony "aggravated assault with a deadly weapon, with a hate-crime enhancement" for sending a flashing picture of the words "YOU DESERVE A SEIZURE FOR YOUR POSTS" to a journalist he knew suffered from epilepsy and triggering a seizure.

My first reaction is "Why do we need the brief?" It's clear what the prosecutor's argument is going to be. Expressing the words is protected by the 1st Amendment. Making them flash in the knowledge that they were going to someone who could be harmed by that flashing is an act - not speech. Just as clearly, the defense is going to argue the flashing is expressive speech, part of the message, and protected. TAH-DAH! If that argument didn't occur to you as you read through the first paragraph maybe you should consider a legal specialty other than crimlaw. Whether you're a prosecutor trying to put together your best argument or a defense attorney trying to anticipate the prosecutor's theory of the case, that's so basic it should be the first thing that comes to mind.

So, I turned to the unsolicited brief from Duke's 1st Amendment Clinic certain that it must have in depth, incredibly compelling reasoning mixed in with citations to Blackstone, the Great Charter, and the Code of Hammurabi. After all, if it doesn't what's the point?

Unfortunately, it doesn't. The first section of the brief is a well reasoned argument against the flashing being expressive speech. However, it's not breaking any new ground. All it really does is provide some citations for an argument we should all be able to make. It might prove useful to the prosecution if there is a conviction and an appeal is noted.

Then we get into the second section of the brief and it's disturbing. The 1st Amendment Clinic starts arguing the very, very dangerous exceptions that have crept into free speech doctrine over the years AND IT ARGUES IN FAVOR OF THEM.

Let me be clear, many of these exceptions exist for valid reasons. However, they are of a kind that they should be watched, controlled, and kept as limited a humanly possible. They are the kind of things that you set up 1st Amendment Clinics to act as watchdogs against. Prosecutors and Attorney Generals should argue they apply in particular cases. Defense attorneys should almost always argue against their application. A 1st Amendment Clinic should watch and intervene when it believes a line has been crossed or even might be crossed; it may have to pass on many because of lack of resources and them falling too squarely within accepted doctrine, but it should never argue in favor of something like the "True Threat" exception (allowing speech to be punished even though it has not blossomed into a threat of immediate physical harm). I should. As a prosecutor, it's my job to go after those bleeping idiots who burnt a cross on their own farm across the highway from a farm owned by African-Americans. I'm comfortable with that. Those idiots knew what they were doing and deserve what they get. Anyone working in a 1st Amendment Clinic should not be comfortable with that in the least.

Yes, I know the people at the clinic don't like the putative speech here. However, I'd ask them to consider the saying I used to have across the top of this page when I was still a defense attorney:
If I choose to defend only the righteous,
When the righteous are accused,
What tools shall I have to defend them?
Remember, every inch given up to get "them" is an inch you've lost when you become "them." If you can't defend the act of someone you don't like, or at the very least stand aside instead of arguing against an expansive reading of the 1st Amendment guarantee of free speech, what are you doing in a 1st Amendment Clinic?

03 May 2019

Foot Shooting 101

Ray is on probation, but can't stay off the pills. After several positive tests for opioids and not going to the drug counseling his probation officer ordered he is violated and comes to court to answer for it. Basically, the probation officer is just trying to give him a wake up call and with that in mind, I recommend to the judge that he get some community service, stepped up drug testing, and directly ordered by the court drug treatment. The judge accepts the recommendation and Ray goes off down the hall to sign up for his community service and drug treatment.

Ho-hum. All the practitioners out there are asking how is this different than any other day that ends in a Y?

Well, you see, Ray isn't the kind of guy who leaves well enough alone. About ninety minutes after he gets his slap on the wrist, I'm working the post-lunch docket when the person who signs people up for community service and the drug treatment program waves me over and tells me Ray has passively refused the initial drug test ("I can't go") and has been standing in her office arguing and throwing attitude. I tell her to bring Ray back to the courtroom and call Ray's defense attorney who comes back.

As soon as Ray found out he was coming back to court his bladder released and he provided a sample that was - you guessed it - positive for opioids. Even with that, there was a good chance he was leaving the courthouse through the front door. Everybody figured he was going to start out positive for opioids; the purpose of the first test is to set a baseline, not violate him.

The intake officer tells the judge about Ray claiming he couldn't provide a sample and getting belligerent during intake. She says she doesn't want him in her programs, but she'll do what the court orders. It looks like the original deal will fall back in place if Ray has enough smarts to be contrite and pledge his undying dedication to overcoming his drug addiction.

Ray, of course, has other ideas. He starts off by telling the judge how rude the intake officer was and then swears that he DOES NOT use opioids and hasn't for over a year. He's getting worked up and swearing that "those tests are wrong - they're always wrong!" Then, as he is loudly, with a great deal of aggravation, protesting his eternal innocence he finishes with "And she told you I was yelling at her! I wasn't yelling at her! I wasn't speaking any louder than I am now!"

The judge looks down at Ray and says something to the effect that if he had admitted to his drug use and been cooperative Ray'd have been fine, but this was unacceptable. The judge then set him for another probation violation hearing next month and remanded him to jail without bond.

At this point, Ray broke down and started to babble about how he couldn't go to jail because of his fiance and kids and a doctor appointment he had next week. He was still babbling as the deputy led him away.


Friday rolled around and Ray appeared back in court with his attorney for a bond hearing. Everyone in the courtroom knew that as long as Ray was contrite and honest he was going to be let out. Everyone, that is, except Ray. Ray gets up in the witness stand and is far more lucid and level headed than he was a couple days before. He testifies that he'll be living with his grandmother and that he'll do everything he's required to while on bail. Then his attorney passes the questioning to me. I ask one question.

"When was the last time you used opioids?"

"That would have been over a year and a half back. I haven't used any opioids. I haven't forever. I didn't use any drugs before I came to court and I didn't use any while I was on probation. I'm not using!"

I didn't ask anymore questions.

No bond.

01 May 2019

Virginia's Probation Revocation Guidelines

Since 1995, Virginia has used sentencing guidelines as a way to influence judges’ sentencing in felony convictions. The felony sentencing guidelines were part of a general reform in sentencing in Virginia known overall as “Truth in Sentencing” and were done as a way of leveling sentences so that they would be consistent between judges and localities. They’re non-binding, but a judge has to write an explanation on the guidelines form if she goes below or above the guidelines range. When the judge goes back before the General Assembly she can be called upon to explain why she’s been deviating so much from the guidelines. And those people decide whether she keeps her job.

Then, a few years back the Sentencing Guideline Commission promulgated guidelines for revocations in probation violations for “technical violations.” My impression was at the time, and still is, that these guidelines were met with a lot of skepticism. They were not perceived as something that was needed; they were an unneeded solution in search of a non-problem. The mere fact that they called anything except new convictions “technical violations” showed a bias in their point of view. Unlike the felony sentencing guidelines, which came about as part of a sweeping change in sentencing policy and the philosophy behind sentencing, probation violation sentencing guidelines were seen by the cynical (and let’s face it, most of us are pretty darn cynical) as more of a fiscal matter put in place to limit the amount of time that a defendant gets sent back to prison and the Commonwealth has to pay for. Worst of all, probation violation sentencing guidelines face a fairly strong argument that they are an unconstitutional infringement of the General Assembly upon the demesne of the courts.

The last argument would go something like this: The Virginia Constitution states that the executive, legislative, and judicial departments are “separate and distinct, so that none exercise the powers properly belonging to the other.” Va. Const. Art. III Sec. 1. Without a doubt, the General Assembly can control the limits within which a trial judge can sentence a newly convicted defendant. The General Assembly could mandate exact sentences for the newly convicted. Thus, non-mandatory felony sentencing guidelines are well within the purview of the General Assembly because mandatory ones would be.

However, once the person is convicted his suspended sentence is under the supervision of the trial court. His first line supervisor, the probation officer, may be an employee of the executive branch (Probation is an office of the Department of Corrections), but all probation violations basically boil down to violations of “good behavior” and only a judge can make the final determination that such a violation has occurred. Once the judge has determined that the probationer is in violation of the requirement that he be of good behavior it is solely within the purview of the court to determine how much of the probationer’s previously suspended time should be imposed. Any intervention in that exercise of the trial court’s sole discretion by the General Assembly is an “exercise of the powers properly belonging to the other” and a direct violation of the Constitution of Virginia. In fact, the strongest argument that it isn’t unconstitutional is that the probation violation guidelines are not mandatory and that’s a pretty weak argument if it can be shown that the probation violation guidelines are followed. This leads us to one question: are they followed?

It doesn’t appear that they are.

This chart shows that the guidelines are consistent with the amount of time imposed about half the time. I’d say they were followed, except I think many courts may operate the way that I’ve seen the ones I practice in operate. The probation violation guidelines are ignored. The prosecutor and defense attorney negotiate a recommendation for the court without even looking at them. The only time I usually see them mentioned is when the defense attorney uses them as a weapon to try to pry a lower sentence out of the prosecutor or the judge and on the odd occasion when the judge thinks the deal being recommended is much too lenient and references them to ask why the recommendation is so low that it’s even below the probation violation guidelines.

But, you say, Ken that’s just your courthouses. Surely that is not replicated in the rest of Virginia.

*ahem* This chart shows that at some level most of Virginia is ignoring the probation violation guidelines. The only group of people who even have a bare majority that believe these guidelines are useful are the probation officers at about 54%. The order then descends as follows: private attorneys at 38%, judges at 36%, prosecutors at 21%, and public defenders at 20%. It’s also telling that 49% of judges find them specifically unhelpful as well as 68% of public defenders and 72% of prosecutors. The people on both sides of the bench who only do criminal law as well as the judge sitting on the bench who makes determinations as to what to do with probation violations all basically find probation violation guidelines useless. This renders any constitutional question moot.

Probation violation guidelines should be scrapped. They won’t be. I’m sure we all realize that once laws of this sort are on the books they stay there and once a bureaucracy develops this sort of paperwork it stays around forever. Sure, it’ll be subject to reforms every so often. Every time will be the one that “finally” fixes it and the beast will keep shambling along. Eventually it may even win the day thru the sheer momentum of bureaucracy. That doesn’t mean it’s a good system; it just means that it stays around so long that eventually people give up or don’t know any better. After all, we all know the most powerful argument in a courthouse isn’t case law or the statutes – it’s “that’s the way we’ve always done it.”

30 April 2019

Unconstitutional Chalking

Chalking cars is a police practice that I can personally attest to as being at least 30+ years old. I remember getting warned about it in my youth when I visited Richmond, Kentucky. And, I must admit to coming out every so often, in different towns in different States, to find one of my my car’s tire marked. I never got tagged with a ticket from the marked tires which I guess means I was always one of the lucky ones who got back to my car in time.

For those of you who don’t know what I’m talking about, chalking is a long hallowed practice of many a police departments’ traffic enforcement division. Broad Street has a two hour limit on parking. Traffic officers travel down the street every so often and mark the tires of cars parked on the street with chalk. Then they come back two hours later and if your car is still parked there with chalk on its tire you get a ticket.

It’s actually the better of the two traditional options for controlling parking. The other is control thru annoyance by using parking meters. Nobody likes meters. If there’s a meter, the person parking downtown has to bring quarters with her and run out to her car every hour or so to put another one in. Conversely, the in-town businessmen who want to limit parking duration so that the spaces will open every so often for their next customer don’t want someone not stopping at their store because they don’t have a quarter for the meter. Of course, the fact that the meter puts a big red “EXPIRED” after the time has run out makes life easier for traffic enforcement and the same amount of enforcement probably ends up with more tickets.

But, it looks like meters may be the default solution from here on out – at least in the Sixth Federal Circuit. In Taylor v. Saginaw, a scofflaw got tired of paying her tickets. She sued Saginaw for violating her civil rights by marking her car’s tires with chalk and then using that mark to charge her with parking violations. For some reason, this burning issue made it to the federal court of appeals and they agreed with her.

Personally, I think the 6th Circuit got the constitutional analysis right. Chalking the tire of a car is a trespass upon the chattels of the car owner and it’s done to reveal information that otherwise would be unknown. Therefore, police ought not to be doing it without a search warrant (or at the very least probable cause). Saginaw’s arguments in favor of allowing officers to do it were that chalking was allowed under the automobile exception and/or community caretaker exception. They lost the automobile argument because it’s based on the fact that cars are mobile and the entire point of chalking a car is to prove it wasn’t mobile. As well, there really isn’t any immediate harm to the community which chalking is designed to protect against. Strangely, the one argument I think might have had some teeth, relying on the administrative search exception, was abandoned by Saginaw in the court of appeals; I can only imagine that case law must not have been favorable.

Tennessee, Kentucky, Ohio, and Michigan can no longer use chalking. Huzzah! Hooray!

Or maybe not. All a locality has to do is avoid touching the car and it can continue its ongoing battle with those who hog parking spaces.

The old fashioned solution to this is to put meters up everywhere. As pointed out above, meters suck and don’t make anyone happy except the bean counters downtown who now have a new revenue stream. As best I can find on the internet (which must mean it’s true) a reasonable cost for a single space meter is less than $500 assuming the locality buys the sane version instead of the crazed upsell monstrosities. The investment is probably made up within two years and then, assuming your city is the typical poorly designed failure without adequate parking, becomes a wonderful profit stream. It punishes your citizens and almost surely hurts your businesses (after all, there’s free parking at the shopping center outside town), but it provides a profit stream for the government.

However, assuming you have people in your city government who care about their citizens and only want to make parking work, there are other solutions in the modern world. In particular, license plate scanners should make this process even easier for officers. Instead of getting out of their vehicles to chalk a car or using a long stick with a piece of chalk on its end to do the same thing while remaining seated, the traffic control officer simply drives down the street every thirty minutes with the scanner getting the plate of every car. Software in the police car pings every time a car has been there for over the allowed time. Heck, if the system is even halfway sophisticated it can do what the toll systems do nowadays and simply report all the miscreants to some central computer so that tickets can be mailed to them later. The officer doesn’t even have to stop. Personally, I think they should; a ticket on the window has a more immediate deterrent effect than a ticket in the mail a month later. Even then, the computer could print the ticket out automatically so the officer only has to spend a few seconds stepping out and putting it on the car. It’s a better system; it just costs a lot more money than chalk.

If the locality doesn’t want to spend the money to put a license plate scanning system in its parking enforcement vehicles, it could simply buy each officer a cheap cell phone and have them take pics of the street with the time and date turned on so they’re burned into the picture and then come back later to check to see if the same cars are there after the time limit has run. Simple. Effective. Cheap.

So, this weird little opinion shouldn’t change things all that much. You’ll still get parking tickets. You just won’t be subject to the grave injustice of having a chalk mark on your tire.

29 April 2019

The BodyCam Problem

If you've done any work in criminal law in the last decade or so you've encountered the recorded media problem. For even the most minor of traffic stops there is about twenty minutes of video recording. That doesn't sound too bad until you walk into traffic court and see fifty people (or more) waiting for their trials. That's over sixteen hours of video for one day of a fairly minor docket.

Now imagine a serious case. An eight person person team does an entry into a drug house each officer with a personal body camera. Drugs, money, and a dead body are found inside. The whole place is video taped to preserve it. There are also two hour sessions of questioning for each of the three live people arrested in the house; each is video recorded. About ten other people are questioned and recorded about the dead person in the house; each averages an hour. Then each of the people arrested in the house goes to jail and proceeds to make a couple phone calls a day each of for the six months prior to trial - all of which are recorded. Let's call this one 100+ hours.

Generally, all this recording is good. It provides about as impartial a witness as could be and is probably the best tool out there (short of basic morality) for guaranteeing police color within the lines. However, it has led to a massive problem with evidence.

Consider for a moment the obligations of prosecutors. Every prosecutor is required to turn over to the defense evidence under the control of the government's investigative team that tends to prove the defendant did not commit the crime and evidence which would tend to impeach a prosecution witness. As well, at least in Virginia, the defendant's relevant statements must be turned over by the prosecutor (I assume other States have the same rule).

So, you're a prosecutor who has hundreds upon hundreds of hours of video and audio recordings. It is not possible to sit and watch every bit of video in every case. Consequently, who knows if there's some exculpatory or impeachment evidence in the third hour of an otherwise worthless recorded interview with the defendant's crazy Aunt Suzie? What's the obvious solution for the prosecutor? Turn over every bit of audio and video in every case.

Well, that sounds good and fulfills the constitutional requirements, but as a matter of practical reality what it accomplishes is the dumping of hundreds upon hundreds of hours of video and audio recordings on the defense attorneys to watch. There's no way they can do that either. This has led to calls for "meaningful" constitutional disclosure which translates as "the prosecutor should view all the videos and tell me if there is exculpatory or impeachment evidence on them." So far, this hasn't been accepted as the law and for reasons both objective (not enough hours in a week) and subjective (prosecutors and defense attorneys will never agree as to what is exculpatory) it is not a good solution. In fact, the "hand it all over to the defense attorney" way of handling it at least eliminates the subjectivity problem since there would be no initial screening by the prosecutors and only the defense attorney's view of what is exculpatory would apply. However, the objective reason for failure happens here too; there just aren't enough hours in a week for a defense attorney to go through every video for every case and fulfill all the other obligations that come along with a private practice.

What's a real and practical solution that's as fair as possible? There has to be a pretrial sorting of some sort and I'm sure others are working on a solution. Nevertheless, I sat down and put together a first draft of a statute I think could put some controls in place:


§ 19.2-9999 Use of Recorded Audio or Video in Trial

(A) Definitions

(1) Recording – An audio or video account of a conversation or activity preserved on any medium on any device capable of preserving the audio or video so that it can be listened to or viewed at a different time and/or place.

(2) Relevant Recording – A recording in the possession of the Attorney for the Commonwealth or the investigative team (a) that is a statement made by the defendant pertaining to the charged criminal violations, (b) that is a statement made by another pertaining to the charged criminal violations, (c) that would tend to exculpatory, (d) that would tend to impeach a witness for the Commonwealth, or (e) that is a visual representation of occurrences pertaining to the charged criminal violations.

(3) Investigative Team – Any person or persons employed by the Commonwealth of Virginia and tasked with an investigation of the individual charged or the criminal act before the court. Absent a showing of extraordinary circumstances, an investigative team is presumed to have access to all recordings in the possession of any agents in its employ, any persons in its department, any cooperating law enforcement agencies from outside Virginia, and any cooperating federal agency.

(B) Disclosure by the Commonwealth – The Commonwealth shall be required to give copies of all relevant recordings to the defendant no later than ten days before trial. If a relevant recording is turned over to the defendant later than ten days before trial the sole remedy shall be for the defendant to receive a continuance unless there is a showing of bad faith. If the case has been continued twice because of late disclosure of relevant recordings there shall be a rebuttable presumption that a third late disclosure is in bad faith.

(B1) Disclosure by the Defendant – Upon receipt of relevant recordings from the Commonwealth, the defendant shall give copies of any other recording he intends to use at trial to the Commonwealth no later than five days before trial. If a recording is turned over to the Commonwealth later than five days before trial the sole remedy shall be for the Commonwealth to receive a continuance unless there is a showing of bad faith. If the case has been continued twice because of late disclosure of recordings there shall be a rebuttable presumption that a third late disclosure is in bad faith.

(C) Case in Chief – No recording shall be used by a party in a criminal trial unless such evidence has been turned over to the other party and the specific portion of the recording that is going to be used has been identified. This identification shall occur no later than three days before trial. If identification occurs later than three days before trial the sole remedy shall be for the receiving party to obtain a continuance unless there is a showing of bad faith. If the case has been continued twice because of late identification there shall be a rebuttable presumption that a third late identification is in bad faith.

(D) Cross Examination or Rebuttal – No recording shall be used for cross examination or rebuttal unless such evidence has been disclosed to the other party. Specific identification of the portion of the recording to be used in rebuttal or cross examination shall not be required prior to its use in trial.


 The meat of it is obviously in C and D and I'm fairly satisfied with them. The definitions could probably use a little sharpening. It's surprisingly difficult to define "recording" without using "record" (at least for me). Feel free to offer suggestions or, if you're the bold type, to grab your state senator or delegate (representative for those of you poor unfortunates who live outside the Great Commonwealth of Virginia) and tell them that they need to pass this statute. Make sure you get my name somewhere in the bill though. Personally, I'd suggest "The Lammers Bill of Ultimate Solutions and All Around Awesomeness", although I could be talked into cutting a couple words out.

Seriously though, bills or court rules along this sort of path are quickly becoming a necessity. As more and more recordings are becoming more and more ubiquitous in courtrooms something has to be done. And the solution to more and better evidence isn't to dismiss cases despite what some professors might urge.  See Theories of Prosecution, 108 Calif. Law Rev. ___, pgs. 13-14 (2020). One suspects that those who propose such solutions are often operating with unclean hands - urging all police officers to be required to have bodycams to prove what's actually happening on the street and then using the fact that there is so much video to urge that crimes should not be prosecuted because viewing all the videos is too much of a barrier for prosecutors. There are times when reality gets out ahead of the law and we have to do something to provide a parctical solution. This is one of those times.

18 April 2019

"Competitors" to Proactive Policing

Anonymous commented on my previous post about the social pendulum and how America treats crime (And So the Pendulum Swings) that my position would have been better served if I addressed the competing theories to proactive policing.We skirmished about it in the comments with him pointing to the banning of lead gasoline and paint as correlating with the drop in crime, me not taking that seriously and flippantly pointing out the rise in the prices of beverages in the 90's could be said to correlate as well, and him doubling down with a link to a chart from Mother Jones. Not knowing anybody who trusts Mother Jones for science facts, but not wanting to blow off a point someone seemed to really believe, I contacted someone who know a lot about statistics and now I'm ready to talk about the competing theories.

THEORY ONE: Abortion Legalization Caused the Decline in Crime

This theory was actually one of the ones used to justify the legalization of abortion in the United States. It comes from a Swedish study that followed "unwanted" children and determined that they were likely to engage in crime. The theory, as far as its application to the U.S. goes is that abortion was legalized in the early 70's and therefore the drop in crime in the 90's was due to the drop in unwanted children.

As you might imagine there has been quite a bit of push back against this theory and a hesitancy to actually study it because it has the whiff of eugenics about it and any serious study is probably going to have implications in racial spheres (i.e. claims about Margaret Sanger and abortion rates for African-Americans and Hispanics in NYC ) and few social scientists want to tread on those grounds.

The strongest counter-argument I've seen to this is that it doesn't hold up to actual demographics and the changing social environment. At about the same time as abortion became legal premarital sex and out of wedlock (unwanted) births started becoming normalized. There were actually more out of wedlock births in the lower social classes than there were babies aborted. So, instead of a downturn in crime there should have been an uptick which was somewhat mitigated by the abortion affect.

Personally, I think there's a good chance that a lot of people who push this theory are strongly influenced by confirmation bias. They want the Swedish hypothesis to be proven true because it would show abortion as a long term benefit to society.


THEORY TWO: Removal of Lead Hazards Caused the Reduction in Crime

This theory states that the US government's banning of the use of lead paint (outside of industrial uses) and requiring its removal as an automotive fuel additive caused people to become less aggressive and led to the downturn in crime. Here's the chart:
Of course, you have to be careful with these kind of charts otherwise you have to believe things like the strong correlation between the Age of Miss America and Heat Murders.
So, I went out and imposed on an old friend who has gone on to make a better man of himself in a career involving a lot of statistical analysis1. He said, in much more erudite words, what I previously stated in the comments on the old post. Correlation cannot prove causation. You can only argue whether correlation shows a stronger or weaker case. As to the case for lead he informs me that it appears likely to have had an effect, but that it is not clear how great the effect was.

On my own, I went out to see how our society compared to some where lead exposure for youths should still be higher. Admittedly, I was looking to see if the US result was predictive in societies with a significantly different cultural base and went to India, Thailand and Egypt to see. In the U.S., the CDC has determined that 5 micrograms per deciliter (μg/dL) of lead in blood is too high. In India it seems that children have about 6.86 μg/dL. In Thailand children have 7.71μg/dL. In Egypt the median is about 17 μg/dL. Assuming the theory that criminal activity tracks with lead contamination Egypt should have the most crime, Thailand and India would follow, and the U.S should have the least.


Murders per     
0.8 5.9 2.8 5

Rapes per     
0.1 6.7 1.8 27.3
Source: Nationmaster

Obviously lead is not the entire answer. The U.S. has pushed hard to lower lead levels and still has relatively high crime rates. Egypt, which obviously has a lot of continuing lead exposure has a minuscule violent crime rate. If it was entirely about lead or even in great part about lead the United States' crime rates should have cratered by now and should not have stopped their decrease in about 2002.

So, yes there appears to be a correlation that shows some effect. However, higher lead levels do not seem, unto themselves, to cause high crime rates2. I'd really like to see more data on this comparing crime rates for other countries with different cultural bases over time as their lead levels dropped (China, India, Egypt, Indonesia, etc., not European based societies). If a replication of a significant drop could be shown in the crime rates of other societies then this would be a rock solid theory and people much better at math than me might actually be able to determine how much the lowering of lead levels affects criminal behavior. In fact, I must admit to some suspicion as to why there isn't such a study.  If a study of different countries with different societal bases showed similar, significant drops in crime it would be rock solid evidence of the lead theory. Why then does one not exist? Let me put on my tinfoil hat and say maybe it's because a significant reduction in crime rate in other countries did not occur.

Anyway, that's as far as I can take this one. There does seem to be an effect of indeterminate magnitude in the United States.


THEORY THREE: Collective Efficacy

This is the social group in an area through its shared values and trust of one another cooperating to enforce informally social norms that preclude criminal activity.

This is cited in many places as a counter theory to broken windows policing. While I think it is something that can be a barrier to the entry of crime into an area, I don't think it's something that has effect in an already crime ridden community. In fact, I'd say the underlying purpose of broken windows policing is to create a space and condition so that a positive "collective efficacy" can come into being and flourish.

For instance, after a long period of proactive policing, the police in NYC reduced their activity (we'll assume they didn't just change methods). After they did, the depressed crime rates which came into existence during the proactive policing period remained depressed. Those who opposed proactive policing trumpeted this as proof that broken windows didn't really accomplish anything. In so doing, they ignored one obvious conclusion: proactive policing had changed the social structure so that behaviors were less violent and criminal. The question now becomes, did the social change imprint in the social group deeply enough that collective efficacy can hold the line against a slide back into a crime ridden society? We won't know for years, but my bet would be that in some neighborhoods it will and in others it will fail. Where the final balance will lay probably won't be known until a couple decades have passed and somebody does a historical study.


THEORY FOUR: Economic Improvement

This is the "a rising tide lifts all boats" theory. Of course, this has some merit, but I wonder how much in an economically depressed area. If half the people in an area are on welfare, the area is flooded with dealers and gangs who constantly have gunfights over turf, and there is one gas station and one McDonalds, how is that community going to grow itself economically out of that situation even in times of booming growth? Sure, some people will get jobs outside the community - if they've got reliable transportation - but enough to transform the entire community? Unlikely. At least it's unlikely as long as no businesses or factories open up near the community and that's unlikely as long as the perception that the neighborhood is dangerous and crime ridden persists. Thus the economic improvement theory finds itself in a catch 22. Crime keeps businesses away and businesses are needed to bring people's economic status to the point that crime is squeezed out socially.

Here again, part of the purpose of proactive policing is to damp down crime so that these neighborhoods can become acceptable (and hopefully desirable) places for businesses to locate and then that tide can actually lift everyone in the community by providing employment for significant numbers of people.



Let's admit something here. Nothing in the real world occurs in a vacuum. Proactive policing may be - and I would assert is - the major element in the decrease of crime since the early nineties, but it didn't stand alone. It is intertwined with the other things listed above with the probable exclusion of the abortion theory. And yes, I am including the lead reduction theory in that statement; I'm still skeptical and want to see the replication I called for above, but as far as I've been able confirm it has some effect.

None of these things are the only cause. They are all part of a set of circumstances which combined to drop crime rates. The question becomes, what was the primary cause? As always, it's impossible to prove with certainty any of this. Someone will always challenge; after all people have to earn their doctorates, get jobs as professors, and become tenured. That process doesn't tend to favor someone who just says "Yeah, the obvious answer is the right one." Thus someone will always be developing new, strange, and attenuated theories and swearing they're the one who is correct.

What is that most likely answer which they'll be striving to make their bones by disproving? The most likely answer is that proactive policing provided a break from prior patterns of social behavior and perception, apparently at such a time as lead reduction had caused younger adults to become less aggressive and thus more likely to conform to new behavioral patterns. This allowed more economic growth in previously inaccessible neighborhoods and allowed room for a new pattern of accepted social behavior to develop.

We'll call this Addendum A to the Ken's Grand Unified Theory of Broken Windows.


1 And, no, I shan't be giving you a name or firm employed at. There are too many whackadoodles on the web and he's done nothing to deserve their attention.
2 Obviously and admittedly, this is a terrible model. I don't have the time, resources, or training to do a long term data or metadata analysis. So, I did my best to approximate a snapshot of the data to give a general idea. I invite anyone out there who wants to investigate the cross cultural effects of the reduction of lead on crime to have at it.