29 April 2012

Who Murdered Whom?

I tripped across this hypothesis on the internet (it was framed for the MPC) and thought I'd address it under Virginia law:

A walks into the room knowing B has a gun on him, in fact, A also has a gun, but he wants to shoot B and get away with it in self-defense.

A provokes B by taunting him with vulgar words with the intent that B shoot him, miss, and then A would be able to shoot back in self-defense.

B shoots and misses. He has more bullets and A knows.

A shoots back and misses. He has more bullets and B knows.

B shoots back killing A. B claims self-defense.

What result?

The Dillema: B’s initial shooting wasn’t justified, because he had no indication that A was using deadly force.

But for A’s purposes if he would have been the killer, he was the provoker, so no self-defense.

Does the fact that A was the provoker allow B to use self-defense as a defense, because A was the initial aggressor? Or looking at him, his shooting wasn’t justified, he was the initial aggressor? Can we have 2 initial aggressors? How does this pan out?

Under Virginia law:

Assuming, as the problem seems to, that A did not have his firearm in plain view or somewhere so that it was obvious, B has no right to shoot at A.

A has contributed to causing the problem. Under Virginia law, this means that he has a duty to retreat. Only if he retreats to the point that he cannot retreat any further is his defense of self "excusable." If A had killed B without retreating, he would be on the hook for a homicide conviction; the only question would be the degree. Assuming there is no evidence of A's intent, this would probably result in a voluntary manslaughter conviction. Of course, if there is evidence that A went to the residence with the intent to kill B while pretending to act in self defense then there is neither "excusable" (partially caused by victim; duty to retreat) or "justified" (victim entirely not at fault; no duty to retreat) self defense. This would most likely be Murder in the Second Degree. However, I am, again as the problem seems to, assuming this evidence does not exist.

B is definitely guilty of a homicide. He shot first with only verbal provocation. The fact that he was a bad shot and missed the first time does not absolve him. It would be a jury question as to whether he was guilty of Second Degree Murder (with malice aforethought) or Voluntary Manslaughter (heat of passion). I lean toward Second Degree Murder because the B already had the firearm out and aimed at A; it's hard to argue that he did that in heat of passion (voluntary manslaughter) instead of with malice aforethought (murder in the second degree).

That's how I see this panning out under Virginia law. Of course, we never adopted the MPC and have stuck by the common law (sort of). Does anyone see different results in other jurisdictions?

24 April 2012

JuryStar: Nifty but Primitive

Since the the creation of the iPad companies have been trying to make it work in the court room. In particular, we want something that will work in jury trials. JuryStar is a more recent competitor in this space.  It's primarily a tool for jury selection and I suspect it may work better in jurisdictions outside of Virginia where individual voir dire is the norm; here we bring out the entire group and question them all together. Still, I think it does some interesting things, but I think it is weak in practical usage.
When you open JuryStar it starts with a fairly generic "select the trial" page. All you can do on this page is create a case, delete a case, or select a case to enter into. It's pretty straight forward.
Once you've chosen which trial you are going to prepare for, you can move to the "Questions" section. On the left side of this you enter topics you want to emphasize and the right you to list the questions you intend to ask in each of these sections. For each topic you enter you also enter a letter representing that topic.
The next section is the juror information section. There are a large number of squares at the bottom. You tap one one of the boxes and tap the button which says Enter Demographic Info. A box pops up for data entry. Of course, it starts with the name of the individual and then there is a section for the entry of demographic information and another for general notes. Presumably, this is to be done with whatever information your locality allows you prior to trial.

This is also the section wherein you place the jurors in their positions in the jury box. You tap the juror to be placed and then tap the jury box at the top where he is to be placed.

Here is where I ran into the first problem with the program. I cannot answer for the entirety of Virginia, but I have done jury trials in several jurisdictions and never seen jurors called in by number. They are called in by name. Even if I have entered 40 jurors' information into their individual numbered slots, I have no way of telling which of the 40 is John Smith so that I can place him in jury box number 1. This renders the program ineffective unless you practice in a jurisdiction that does use numbers when it calls the jurors.
Next is the section to be used during questioning. This is the part that I thought was nifty. You tap on a defendant and a topic then you ask your questions. As you do so, you move the slide on the screen so that a positive number or negative number is assigned to the juror for that topic. When done you tap the button on the right and the scores are put in the box above next to the code you entered earlier for each topic. I think it will work wonderfully in jurisdictions where individual voir dire is done and it will work well in Virginia where group voir dire is done.

This is a clever way of keeping score. It does not allow for specific notes as to the answers by individuals and this could prove problematic while defending that Batson claim after peremptory strikes. The program does allow you to open the juror back up and type notes in, but that's not practical while questioning. This is not the programmer's fault. Apple chose not have a stylus and most don't buy them. Therefore, the programmer has to create ways to make a system work without the ease of quickly written hand notes. This is an innovative way of attempting to do that.
Finally, there's the page for jury strikes. You tap the juror and then tap the party who has struck her. Under the party, the juror reverts to a box with a number on it. This page is almost entirely useless and could even be problematic.

To begin with, I couldn't find a way to put a juror back in the box or move her to a different party if accidentally put under the incorrect party. I guarantee that someone (most likely me) would be fumble fingered or acting too quickly and make a mistake. There has to be some way to remedy this. Maybe I missed it, but I tried everything I could think of to put a juror back in the box and failed.

Fundamentally, the reason that you are keeping track of whom the parties have struck is in case you need to make a Batson motion after the parties have completed their peremptory strikes. In order to do this you need, at the very least, the ethnicity and gender of the struck jurors listed. All we get are the numbers of the struck jurors. Even when you tap the number you don't get the juror's information. You have to go back to one of the prior pages to access that information.

This program needs work, but there are some cool ideas in there.

22 April 2012

Is there a Right to a Transcript from a Court Not of Record?

In Virginia, we have a two tier trial court system. The lower trial courts are General District Court (GDC) and Juvenile and Domestic Relations Court (JDR). The upper trial court is Circuit Court. Both the GDC and JDR are constitutionally defective. Their primary flaws are that the lower courts don't have a court reporter and do not have an option for a jury trial. Consequently, everyone convicted in the lower courts has an absolute right to appeal to the Circuit Court and get a brand new trial (trial de novo).

The lower courts are also where preliminary hearings are held. Everyone who is arrested in Virginia is entitled to a preliminary hearing by statute. This entitlement is tenuous since the prosecution can drop a case prior to the preliminary hearing and thereafter indict the defendant. This allows prosecutors to get around the hearing and there is no remedy for it under Virginia law. See Kolesnikoff v. Commonwealth, JUL09, VaApp No. 3202-06-4. Nevertheless, preliminary hearings are quite often held because the prosecution does not want the defendant released from jail (because his charge is dropped until the grand jury next meets) and/or because it often serves as a good reality check for the defendant.

Here we get to something of a tricky point. There is no court reporter in GDC or JDR so there is no record of the preliminary hearing. There are two possible solutions to this. The first is provided under § 16.1-69.35:2 - "Proceedings in a general district court may be tape recorded by a party or his counsel." The second is under § 19.2-185 - "The judge of the court of record to which the case may be or has been certified may order the testimony of the witnesses at the preliminary hearing to be reduced to writing." Of course, under this statute the defense counsel must go to the judge in the Circuit Court and get an order requiring a court reporter to be in GDC or JDR before the preliminary hearing or there won't be recorded testimony to be transcribed. Circuit Courts in some jurisdictions have, in the past, pretty much refused to order court reporters for anything less than murder or rape; this is why I always had a tape recorder with me while I was a defense attorney. In other jurisdictions Circuit Courts have treated the request for a court reporter in a preliminary hearing as a pro forma matter and signed off on everything put in front of them.

A couple years ago the Virginia Court of Appeals put another layer upon this in Asfaw v. Commonwealth, APR10, VaApp No. 2496-08-4. Here's my summation of the case.
(1) There are two factors to be considered in deciding whether an indigent defendant is entitled to a state financed transcript of a preliminary hearing: (a) the strategic value the transcript provides to the defense, and (b) the availability of alternative devices that would fulfill the same functions as a transcript. (2) The strategic value of a transcript from a prior hearing can be presumed because of its potential use in impeachment. (3) All an indigent defendant has to assert is a reasonable basis for believing the transcript would (a) serve as a valuable discovery device in preparation for trial or (b) as a tool at trial itself for the impeachment of prosecution witnesses. (4) An indigent defendant's right to a transcript is waived if it is asserted so late that it would disrupt a scheduled trial. (5) When a transcript is requested so that the defense does not have to have a continuance to get it or cost the State extra money for expedited transcription the defendant has not waived his right to a transcript.
In Asfaw there had been a court reporter at the preliminary hearing so the argument was entirely about whether the judge should have given the defendant a copy of the transcript. However, the court founded its decision in equal protection principles, so it could apply to situations wider than itself. On the other hand, it could also be a very limited decision. After all, there is clearly a statutory right for the defense to record any hearing and that is an "alternative device which would fulfill the same functions as a transcript." After all, wouldn't it be better to play a recording of the defendant's own voice to impeach him rather than introducing page 27 of the transcript into evidence?

I've been asked whether I think Asfaw means that an indigent defendant is entitled to a transcript of testimony during a misdemeanor trial in lower court when the case has been appealed for a de novo trial in circuit court. It's a sensible question since Asfaw seems open to wider application. However, I must say that I don't see the courts applying the case in this manner. To begin with, the circuit court judge has not been given the power by the General Assembly to give the indigent defendant a transcript of a misdemeanor trial in lower court. As we all know from watching the ability of courts to deal with cases equitably thru taking cases under advisement being shorn away, unless the General Assembly has written a statute specifically allowing the judge to do something, he cannot. The argument against this would be that the requirement of a transcript is constitutional and therefore trumps Virginia law. I think this fails because of the statute allowing defendants and their attorneys to record the trials in lower courts by themselves.

I think Asfaw might be an orphan case. The Court of Appeals saw a case wherein the transcript was easily available and denied for no particular reason. It slapped down the judge for arbitrarily denying the transcript to the indigent defendant. Notably, it has not been mentioned in any case since it was issued. While it has only been a couple years, when a case is issued and no other case mentions it that often indicates that the case will be limited to its fact pattern.

20 April 2012

Small Town Officer v. Big City Lawyer

Pitcairn County: Suppresion Hearing

Sometimes it is interesting to see different perceptions of reality clash in the courtroom. Big City Attorney has traveled several hours from Metropolis to the the County of Pitcairn.  He's there to defend a possession charge in which the main argument is over whether the initial stop was constitutionally valid.  Part of the reason for the stop is that the car pulled into the driveway of a residence in the Town of Erehwon which was not the driver's residence.

Me:  Officer, do you know what vehicle belongs to the resident of 123 Plum Street, in the town of Erehwon?

Officee:  Yes, sir.  It is a green VW Thing.

Me: And what type of vehicle did you see pull into that driveway at 3 am on 29 February 2010?

Officer:  It was a blue Jeep Cherokee.


On Cross

Big City Attorney:  So, you knew that the owner of that house had a green Volkswagen Thing?

Officer:  Yes sir.

Big City Attorney, leaning in, sensing a gotcha:  So, what kind if car does the owner of the house to the right of this one have?

Officer:  A yellow Toyota pickup.

Big City Attorney, a little surprised, but still game:  Okay, what type of car does the owner on the other side of house have?

Officer:  A silver Dodge Ram.

Big City Attorney: Okay, are you trying to tell the court that you know what car belongs at every house in Erehwon?

Officer, looking a little confused by the question: Well, yes sir. There are only about 100 houses in town and I patrol for twelve hours every night. I know what cars belong at what houses.

Maybe my sense of humor is a bit askew, but I found it amusing how hard it was for Big City Lawyer to conceive of an officer knowing every car in town and how inconceivable it was to the officer that he wouldn't.

15 April 2012

Castle Doctrine: the 2012 Disposition

Virginia's General Assembly has been considering and reconsidering the possibility of passing a statutory Castle Doctrine.  Generally, the statutes which they have considered have been recapitulations of the common law protections which Virginians already have. I addressed this in depth back in 2010 and the current 2012 attempt was almost exactly the same, although I thought it was going to pass this year.

It didn't.

The House of Delegates passed the statute in this form:
§ 18.2-91.1. Use of physical force, including deadly force, against an intruder; justified self-defense. 
Any person who lawfully occupies a dwelling is justified in using any degree of physical force, including deadly physical force, against another person when the other person has unlawfully entered the dwelling [ without the permission of said occupant ] , having committed an overt act toward the occupant or another person in the dwelling, and the occupant reasonably believes he or another person in the dwelling is in imminent danger of bodily injury. 
[ Any occupant of a dwelling using physical force, including deadly physical force, as provided in this section shall be immune from civil liability for injuries to or death of the other person who has unlawfully entered the dwelling that results from the use of such force. ]
However, the Senate passed a slightly different version of the statute:

§ 18.2-91.1. Use of physical force, including deadly force, against an intruder; justified self-defense 
Any person who lawfully occupies a dwelling is justified in using any degree of physical force, including deadly physical force, against another person when (i) the other person has unlawfully entered the dwelling and has committed an overt act toward the occupant or another person in the dwelling and (ii) the occupant reasonably believes he or another person in the dwelling is in imminent danger of bodily injury. 
Any occupant of a dwelling using physical force, including deadly physical force, as provided in this section shall be immune from civil liability for injuries or death of the other person who has unlawfully entered the dwelling that results from the use of such force.
The House of Delegates refused to pass the Senate version by a vote of 97 against and 2 in favor. Then the Senate refused to accept the House's version 40 against and 0 in favor. The Senate has now sent the bill back down to the Courts of Justice Committee and put it off to next year.

Obviously, the difficulty has got to be in the last paragraph. The House does not want it for some reason. The strange thing about that is that a bill which has passed both the House and Senate already does what the second paragraph aims toward.

§ 8.01-223.3. Immunity for persons acting in defense of property. 
Any person who lawfully occupies a dwelling and uses any degree of physical force, including deadly physical force, against another person when the other person has unlawfully entered the dwelling without the permission of said occupant, having committed an overt act toward the occupant or another person in the dwelling, and the occupant reasonably believes he or another person in the dwelling is in imminent danger of bodily injury, shall be immune from civil liability for injuries to or death of the other person who has unlawfully entered the dwelling that results from the use of such force. 
Nothing in this section shall either form the basis for a jury instruction or be offered as evidence of criminal liability or lack thereof in a criminal proceeding.

So, in Virginia, as of 01 July 2012, the General Assembly has said that a person cannot be sued for killing or injuring someone in his house when he acts in defense of self or others. There's not exactly anything new about this.  If you kill someone in self defense you should win your law suit right now. It's just that now there will be a statute backing you up. Of course, since "[n]othing in this section shall . . . form the basis for a jury instruction" you won't be able to use the statute to tell the jury you shouldn't be found guilty, so I'm not sure what the statute accomplishes.

Anyway, the Castle Doctrine drama is put to bed for 2012.  There's always next year.

03 April 2012

Pornland: A Review

Every so often, I forget what it's like to read the kind of faux intellectual treatises that exist at the edge of the social studies in universities and colleges. Then, I read a book like Pornland and it all comes crashing back upon me.

PornLand is a feminist attack on the effect of porn on society. Fine, porn's bad; got the message. However, the book suffers from mixed plots and a fractured philosophical base. The mixed plot lines are (1) the sexualization of society at large leading to the unsatisfactory objectification of women, and (2) the rise of the internet leading to the greater availability of "gonzo" porn (extreme kink). She tries to tie these together, but does not do so very successfully. The first is her actual argument while the second is an emotionally charged overlay. Often, it feels as though she is making an argument based on the first plot line and heavy-handedly beating down any argument against her by pointing to gonzo porn in an attempt to put opponents in a position that objection would require them to be seen as defending gonzo porn. As an intellectual exercise it fails. The crux of its failure comes from her perception and treatment of the male.

In the Beginning: In order to analyze this sort of subject, some sort of model should be developed. There are two obvious models which could have been adopted for this analysis. The first is the competition for male attention model.

No self respecting feminist is going to adopt this model for analysis because (1) it implies a need for the male, and (2) because women win in this analysis, thus negating the need for the anti-porn argument in the main. Porn may draw male attention, but the continuing large scale presence of marriage, child birth, and even prostitution in society indicate that the draw to actual women is stronger.

The second model is the overlapping influences model.

This is the model that I expected to see in this book. Instead, what we get is a fractured view of this which presents the female and porn, but leaves a big hole where anything inherently masculine would be. This can be seen thru this passage in her introduction:
[A]cts that are part of many people’s sexual experience, such as kissing, caressing, cuddling, and fondling, are noticeably absent in pornography. This forces us to ask why men who view porn are so attracted to images that depict types of behavior so at odds with the real world. One obvious answer could be that men go to porn as a way to play out a fantasy, a way to conjure up mental images that are not real but nonetheless pleasurable. But if it were as simple as this, then why isn’t there an equal amount of porn that depicts women and men having great sex that involves deep connection and intimacy, with women having fabulous orgasms brought about by a highly skilled male lover who has an intuitive understanding of women’s bodies?"
The obvious answer to this is that that is a stereotypically female view of sex. Note that the majority of that scenario would be found in most porn portrayals of sex. Sex in porn is portrayed as "great" and women almost invariably portrayed as "having fabulous orgasms" brought about by a male sex partner who gives the woman what she wants. The feminine perspective involves the "lover" and sex involving a "deep connection and intimacy." At core, her argument is that porn lacks these elements and society has sympathetically adopted this lack thru porn.

However, she refuses to admit to any core "maleness" which allows or encourages porn's existence. This failure is a core part of her worldview. We are told that porn portrays men "as soulless, unfeeling, amoral life-support systems for erect penises who are entitled to use women in any way they want.' In other words there is no there there. Males are empty vessels except that they are attached to their sexual organs. It's a fairly accurate portrayal of the way that men are depicted in sex films. Sadly, she adopts a very similar stance as her personal view of men in her 4th chapter. There is no male there; there is only cultural training. it is only because men are trained to be that they are competitive and aggressive and through this training they become anti-female and therefore mutually turn to porn and are drawn by it. Males are empty vessels except as society trains them to be evil.

Into this massive failure of understanding (the blank male) she wants to pour her value laden depiction of how sex should be (the fulfilled female). The blank male should be directed away from porn and instead be filled with a "counter-ideology to porn . . . disrupt[ing] and interrupt[ing] its messages, and . . . as powerful and as pleasurable as porn, telling men that porn’s image of women is a lie, fabricated to sell a particular version of sex. This alternative ideology would also need to present a different vision of heterosexual sex, one built on gender equality and justice."

At a certain point, having established porn as the evil that corrupts blank males and denies females of their fulfillment through their version of sex, the author begins the bait and switch parts of the book. In particular, she begins this in earnest in chapter 6.

Here, she switches from porn to a discussion of dominant sexual mores as sexual repression of women that have become internalized and destructive to women, but continues to describe this as arising from porn without establishing more than a tenuous connection. The modern mores (which she calls the hookup culture) come from TV, movies, magazines, celebrities, &cetera that push women toward attempting to make their bodies attractive to men sexually and participating in sex (hookups) thus falling far short of her proffered stereotypical female ideal of sex.

A seriously disturbing part of this chapter is where she misdefines rape as "unwanted sex." This is an egregious and purposeful distortion of what rape is. Rape is sex without consent. Lack of consent occurs when (1) the victim is incapable of consent due to (a) age or (b) mental incapacity (to include extreme intoxication), or (2) the victim's resistance is overborne by (a) force or (b) threat of force. ACQUIESCENCE AGAINST PREFERENCE IS NOT RAPE. Having sex "because that's what you do when you go back to a guy's apartment" or "because he wouldn't stop bugging me about it" or "despite the fact I had a headache" or "because I thought it was my one shot at starting a relationship with him" or "because my friends pressured me into it" or "despite the fact that he stunk after he took his shirt off" and a vast multitude of other situations where the sex was unwanted, but consented to, IS NOT RAPE. To be fair, the author is not the creator of this myth, but she is supposed to be a professional in this sociological area and therefore should not be spreading the myth.

This chapter is where we see the author's true grievance break through. "When feminists in the 1960s and ’70s fought for sexual liberation, they fought for the right to want, desire, and enjoy sex—but on their own terms. They argued that their sexuality had been defined by men, and they wanted it back." The simple phrase "on their own terms" gives the masquerade away. It also explains her strong preference for the blank male. She sees a society wherein women broke free from sexual norms of the society so that they could become the sole actors in determining sexuality. However, in order for her sexual paradise to occur there can be no push back, no Hegelianistic dialectical materialism. The thesis of sex on feminine terms can only succeed if there is no male antithesis and thus no synthesis. This requires the blank male. But here we also see a breakdown in her assertion of the entirely socially programmable blank male.

Immediately after her assertion of the goal of female sexual utopianism, she acknowledges the synthesis (if not the antithesis). "One of the men interviewed by Bogle said he saw hookup culture as a 'guy’s paradise.' Yes, Pornland is indeed paradise for these men, as it is sex with no strings attached. And for women it is business as usual: men defining our sexuality in ways that serve them, not us. Only now this sexuality is sold to us as empowering. A new twist on an old theme."

In both the assertion that women in the 60's and 70's broke free from sexuality defined by men and in the assertion that the modern era's sexual mores are a "paradise for men, as it is sex with no strings attached" there is an admission that men have pushed sexuality in a direction because of something other than the blank male's programmed interest. There is an internal actor within the male. This internal male in the older paradigm would probably be described as competitive / possessive (socially acceptable sex for females restricted to marriage) and the internal male in the current paradigm would probably be competitive / abandoning (the hookup culture). However, this is something of inference on my part because the internal workings of the male as she obliquely admits to them can only be seen through the shadow their antithesis casts on the synthesis.

After having made her point there are two more chapters in the book, both of which feel as though they were added as an afterthought or filler (maybe her publisher told her more pages were needed). In chapter 7 the author talks about racism within the porn industry, in the advertising and sale of interracial porn, and in its consumers. This last point is highlighted in a direct comparison of blackface minstrel shows with interracial porn because both let the white man perceive himself as a black man acting in a manner unacceptable for white men. She scores solid points in pointing to the racism rife in the industry and consumption, but seems to be out on a limb with the minstrel comparison.

Chapter 8 is about the youthification of porn. It is about the porn wherein young women dress and act like underage girls. She tries mightily to tie this to actual child porn, but doesn't quite get there. The best she can do is interview men convicted of downloading child porn and paint all males with a broad brush based upon their answers. Then she goes on to point out connections between child porn and child sexual abuse. This weak connection backed by powerful emotional images is good propaganda, but not well reasoned argument. Mind you, my gut tells me she is right - I just don't think she proved it. Then, at the end of the chapter she shoots herself in the foot by trying to connect all this to the clothes which are sold for young girls. Much like chapter 6 this is a bait and switch. All this near child porn, actual child porn, and sexual abuse of children is abhorrent, but there's no connection between them and the clothes being sold for young girls (unless we are to believe that manufacturers producing the product, merchants selling the product, and parents buying the product are all avid child porn watchers). More likely, the clothes fashions are influenced by music videos, television shows, celebrities and a variety of other sources which do not tie into child porn.

She concludes that women should fight porn, offers a couple of programs she has been involved in and then turns again to the male role.
A movement that resists the porn culture needs to include men as they, too, are being dehumanized and diminished by the images they consume. Men’s refusal to collaborate with the pornographers will not only undermine the legitimacy of the industry, it will also drain it of its profits. For too long women have been the only ones fighting this predatory industry, even though we have long argued that porn also hurts men. What to porn offers men is a sexuality that celebrates connectedness, intimacy, and empathy—a sexuality bathed in equality rather than subordination.
In other words, males should abandon porn in order to perfect sexuality in its stereotypical female perception. It's not exactly a strong, primal incentive.


This book suffers from several flaws. The worst of these is the blank male. The author proffers a stereotypical female perspective on sex, but does not try to address that within the male which draws him to porn. Her stereotypical female perspective is that sex is about becoming connected, intimate, and co-empathetic; in other words, it has a relationship orientation. A corresponding stereotypical male perspective on sex is that it is success in a competitive act (getting the female to choose him over other males) which sees the female as an objective and a means of hedonistic fulfillment. Inherent in both these stereotypical perceptions is a flip side. For the female sex is not only relational, it is also physically pleasurable. For men success in the competition and the completion of the sexual act opens the door to connection, intimacy, and empathy which were not its initial goal.

The ignoring of any viable male perspective in this book is its major flaw. The assertion that the blank male only pursues porn because he is programmed to do so fails on its face. The lack of consideration of a male perspective also means that there is no realistic means offered to counter the male draw towards porn and objectification of the female.

As for me, I think I'd start any serious argument against the objectification of women by reference to the call to moral duty found in Mulieris Dignitatem.
The dignity and the vocation of women - as well as those of men - find their eternal source in the heart of God. And in the temporal conditions of human existence, they are closely connected with the "unity of the two". Consequently each man must look within himself to see whether she who was entrusted to him as a sister in humanity, as a spouse, has not become in his heart an object of adultery; to see whether she who, in different ways, is the cosubject of his existence in the world, has not become for him an "object": an object of pleasure, of exploitation.
You may disagree with the conclusions of Mulieris Dignatatem, but it provides a more solid groundwork to have this argument than Pornland ever could.

02 April 2012

Dog (Search) Days of Florida

You'll all recall that back when the United States Supreme Court declared dog sniffs not to be searches I took umbrage. In fact, I even wrote an article for the NYU Journal of Law & Liberty. Interestingly, the greatest proponent of the infallible dog sniff, Justie O'Connor, and the author of the opinion, Justice Stevens, have both retired from the bench and now the US Supreme Court has accepted two dog sniff cases to be heard next term. I am curious to see whether the Court will take this opportunity to prune off the dog sniff branch of 4th Amendment Jurisprudence because it is so out of kilter with Kyllo, or if it is going to use it as an opportunity to defend and expand dog sniff availability. It could also split the baby and find that Kyllo is a protection of the home, not vehicles, and therefore no dog sniff or electronic device can be used outside a home, but that both could be used in other circumstances (cars, luggage, etc.).

In any event here are my summations of the two Florida cases on appeal:

Jardines v. Florida, APR11, SCtFla No. SC08-2101:

In Jardines, the Florida Supreme Court finds that a dog sniff at a house is a search (in contrast to a dog sniff of a car or luggage). The Court points to two factors: (1) The special emphasis the Home is given under the 4th Amendment as the place where a citizen's 4th Amendment right is strongest, and (2) the amount of intrusiveness involved in a dog sniff of a home.

The second factor is the actual point of the opinion. The Court points out that in all the luggage and vehicle cases there was minimal intrusive activity and potential for public embarrassment. Then it describes the activities the government undertook at this house:
Based on the foregoing, we conclude that the dog "sniff test" that was conducted here was an intrusive procedure. The "sniff test" was a sophisticated undertaking that was the end result of a sustained and coordinated effort by various law enforcement departments. On the scene, the procedure involved multiple police vehicles, multiple law enforcement personnel, including narcotics detectives and other officers, and an experienced dog handler and trained drug detection dog engaged in a vigorous search effort on the front porch of the residence. Tactical law enforcement personnel from various government agencies, both state and federal, were on the scene for surveillance and backup purposes. The entire on-the-scene government activity—i.e., the preparation for the "sniff test," the test itself, and the aftermath, which culminated in the full-blown search of Jardines' home—lasted for hours. The "sniff test" apparently took place in plain view of the general public. There was no anonymity for the resident.
The Court goes on to further reason that because, unlike a vehicle sniff, there is no initial reasonable articulable suspicion required a home sniff "raises the specter of arbitrary and discriminatory application."

I think this has a good chance of surviving the US Supreme Court. It is well reasoned and sets out exactly why there is a difference between a home sniff and a vehicle or luggage dog sniff. However, the US Supreme Court could distinguish it on factual grounds. It could say, "Yes, this amount of activity was too much, but less obvious activity could make it valid."

Harris v. Florida, APR11, SCtFla No. SC08–1871:

In this case a dog alerted on a door of a vehicle and when the vehicle was searched the vehicle contained items which are used to make meth, but none of which the dog was trained to alert to. The officer did not keep records of any times when his dog had alerted and drugs had not been found. In this case, the officer insisted that the dog did not falsely alert, but that someone must have touched the door handle after handling meth and left an odor.

The Supreme Court of Florida rejects this as violating the 4th Amendment and sets out what the government must provide to establish probable cause in the courtroom after a dog sniff has been used on a vehicle:
we adopt a totality of the circumstances approach and hold that the State, which bears the burden of establishing probable cause, must present all records and evidence that are necessary to allow the trial court to evaluate the reliability of the dog. The State's presentation of evidence that the dog is properly trained and certified is the beginning of the analysis. Because there is no uniform standard for training and certification of drug-detection dogs [neither in Florida or the United States], the State must explain the training and certification so that the trial court can evaluate how well the dog is trained and whether the dog falsely alerts in training (and, if so, the percentage of false alerts). Further, the State should keep and present records of the dog's performance in the field, including the dog's successes (alerts where contraband that the dog was trained to detect was found) and failures (“unverified” alerts where no contraband that the dog was trained to detect was found). The State then has the opportunity to present evidence explaining the significance of any unverified alerts, as well as the dog's ability to detect or distinguish residual odors. Finally, the State must present evidence of the experience and training of the officer handling the dog. Under a totality of the circumstances analysis, the court can then consider all of the presented evidence and evaluate the dog's reliability.
The Florida Court also goes on to state that the State cannot just say "The dog is trained and certified" and then require the defense to provide proof it cannot possibly have to disprove the dog's infallibility.

Remember, as long as the US Supreme Court sticks by its position that a dog sniff can't possibly reveal anything which isn't illegal, we're talking about probable cause here. While there is no exact definition of probable cause it is clearly less than 50% probable (otherwise the courts would be saying preponderance). I agree that the dog's record both in training and on the street should be introduced. However, if the dog is correct 5 out of 10 times, I think that probable cause is established. Then the question becomes, how far below 50% accuracy can a dog's record go before we decide it is too low? 40%? 35%? 20%?

Unless the US Supreme Court decides to scrap Cabelles completely, I think the fact that the dog was trained and yearly certified will probably get a stamp of approval for probable cause purposes and the Florida Supreme Court will be overturned on this case.


Of course, like everyone else, my ability to prognosticate the results from the US Supreme Court goes on the fritz some times. So, I guess you will all have to wait until next year to find out the exciting conclusion to the next step in the never ending dog sniff ain't a search saga.