April 22, 2014
In other news, if you’re in or around Albany on May 5, you should probably attend this event.
New York State Prisoner Justice Network

In other news, if you’re in or around Albany on May 5, you should probably attend this event.

New York State Prisoner Justice Network

April 22, 2014
Newspaper Article Accidentally Sums Up The Marijuana Legalization Debate

A newspaper in Ohio tried to create a forum for opposing viewpoints on marijuana legalization.  Un(?)fortunately, they were unable to find a writer that was willing to take the anti-legalization viewpoint:

Priceless.

April 22, 2014
"Drunken driving is a serious matter, but so is the loss of our freedom to come and go as we please without police interference. To prevent and detect murder we do not allow searches without probable cause or targeted Terry stops without reasonable suspicion. We should not do so for drunken driving either. After today’s opinion all of us on the road, and not just drug dealers, are at risk of having our freedom of movement curtailed on suspicion of drunkenness, based upon a phone tip, true or false, of a single instance of careless driving."

Justice Scalia, dissenting in Navarette v. California, released today.  The Court decided 5-4 that an anonymous tip from a 911 caller accusing a motorist of reckless driving, without more, provides police with reasonable suspicion to conduct a traffic stop and detain the motorist.  This is a departure from the general rule that anonymous tips must be corroborated by extrinsic evidence or other “indicia of reliability” in order to provide a basis for reasonable suspicion.

April 21, 2014

Why You Need To Pay Attention To Gary Johnson’s Lawsuit To Fix Presidenial Elections In America

Gary Johnson has released an ad for his “Our America Initiative,” which is asking for crowd-sourced donations to his lawsuit to sue the Commission on Presidential Debates (CPD), a private organization created by both the Democratic and Republican Parties which controls access to the Presidential debates.

The Issue

The Democratic and Republican parties have secured a monopoly on access to Presidential Debates by working with institutionalized media to create a system that blocks candidates from other parties from entering the debates.  Eric W. Dolan summed up the details during the 2012 debates:

The debate rules specify that to be included, candidates must receive at least 15 percent in a major poll. Most major polls do not even list [third party candidates] as an option. Televised presidential debates date back to 1960, and have been a regular event since the 1976 election. Originally administered by the League of Women Voters, they’ve been jointly organized by the Democratic and Republican parties through the Commission on Presidential Debates—a group the two parties jointly formed—since 1987.

In other words, the CPD has created a shell game.  In order to have access to the Presidential Debates, you need at least 15% approval rating in a major national poll.  But most major national polls do not list third party candidates as an option, making it de facto impossible for most third party candidates to enter the debates.

What The Lawsuit Would Achieve

Gary Johnson’s lawsuit would ask the court to order the CPD to allow any candidate access to the Presidential Debates who is listed in enough states to garner at least 50% of the electoral college votes.  This requirement would give third party candidates access to the debates, while ensuring that only serious candidates were allowed in.

Why It Matters

Access to the debates is not simply a token gift to third parties to make them feel better.  As recent lawsuits over campaign finance laws indicate (i.e. Citizens United McCutcheon), access to mass media is a very big deal.  When third parties are denied access to the debates, large swathes of voters are not given an opportunity to compare the ideas of the candidates in real time.  

The forum of the Presidential Debate itself also grants an air of legitimacy to the candidates.  Candidates who are denied access to the debates are both literally and figuratively shoved into the unwilling role of “outsiders,” which makes many voters afraid to commit to them for fear of wasting their vote.  The CPD and institutionalized media have thus created a system that effectively prevents third party candidates from achieving legitimacy in America’s 2-party system.

If Gary Johnson’s lawsuit is successful, third party candidates would have real access to the Presidential Debates, and would have an opportunity to bring their message to the largest national media platform during election season.  Third party candidates would finally have an opportunity to bring their message to large swathes of voters on a platform which has historically been denied to them.  In the process, they would be given an opportunity to change voter’s minds at the time when it matters most.

April 16, 2014
portiaofourchambers:

via.
This is a pretty helpful infographic, but like most “know your rights” information out there, it raises more questions than it answers.  
Generally speaking, I tell clients, friends and family that in a police encounter the best thing to do is be respectful and truthful. If you don’t feel like you can tell the truth without getting into trouble or arousing further suspicion, ask if you are free to leave, and if you are told you are not free to leave, inform the officer that you will not be answering any more questions until you have spoken with an attorney.  Then just stand your ground, continue to be respectful and polite but don’t say anything more.
"I’m sorry, officer, I don’t consent to searches," is a great phrase to have in your back pocket.  And you guys — don’t consent to searches.  Even if you believe you have nothing to hide.

LTMC: I like to tell people that it’s not their job to help the Government prove them guilty of anything.  Never consent to searches.  Always say “no” when they ask you if you know why they pulled you over, even if you think you do (you’re not in the officer’s head, and they may have pulled you over for a different reason.  Don’t accidentally implicate yourself to another crime!).  
Never give them more information than they ask for.  Keep your answers as brief as possible.  Even if you think you have nothing to hide, you’d be surprised how often people are breaking the law without even realizing it.  Giving elaborate answers may inadvertently provide police probable cause to search you or your vehicle.
They can ask you for your driver’s license and registration, and in New York, they can ask you to take a breathalyzer (you technically can refuse, but if you do, it’s an automatic license revocation).  Police can also order you to step out of your vehicle.  Even if they start to search you or your car illegally, let them do it.  Don’t be a martyr.  You’ll just get yourself into more trouble.  It’s not fair, but it’s reality.  Remember, they have a gun.  And they’re far more concerned about their own safety than yours.  Challenge it in court, not on the sidewalk.
With that being said, I’m in the process of writing an article premised on the idea that no attorney should advise a client to voluntarily speak to the police under any circumstances—even if they witness or are a victim of criminal activity*—because anecdotal evidence suggests it will always be against their penal interest to do so, absent structural reforms in the law.
People do dumb and/or weird things when they’re in stressful situations.  They say things they don’t mean.  They utter sentences that come out wrong.  They misspeak.  They remember things wrong.  They give vague answers that can be interpreted in multiple ways.  This creates a high risk of accidentally implicating yourself in a crime.  It’s even higher when you’re being detained.  
Other times, people simply react as one would expect, and they end up paying for it. Like Kenny Dixon, who discovered his stepson’s dead body in his garage after the latter committed suicide.  A police officer at the scene grabbed Dixon’s arm and tried to push him away from his stepson’s body.  Dixon, who was understandably inconsolable, asked the officer not to touch him.  Dixon was tackled, punched, and beaten by several officers at the scene, then arrested and charged a felony.  Thank goodness the police were there to help the victim’s family cope with their grief!
So yes, don’t talk to the police unless you have to.  If you’re being detained, don’t consent to searches, always answer “no” when asked if you know why you’re being detained, and don’t give them more information than they ask for.  Even fi you think you’re helping your case, it’s far more likely that you aren’t.

*(excepting mandatory reporting laws, of course)

portiaofourchambers:

via.

This is a pretty helpful infographic, but like most “know your rights” information out there, it raises more questions than it answers.  

Generally speaking, I tell clients, friends and family that in a police encounter the best thing to do is be respectful and truthful. If you don’t feel like you can tell the truth without getting into trouble or arousing further suspicion, ask if you are free to leave, and if you are told you are not free to leave, inform the officer that you will not be answering any more questions until you have spoken with an attorney.  Then just stand your ground, continue to be respectful and polite but don’t say anything more.

"I’m sorry, officer, I don’t consent to searches," is a great phrase to have in your back pocket.  And you guys — don’t consent to searches.  Even if you believe you have nothing to hide.

LTMC: I like to tell people that it’s not their job to help the Government prove them guilty of anything.  Never consent to searches.  Always say “no” when they ask you if you know why they pulled you over, even if you think you do (you’re not in the officer’s head, and they may have pulled you over for a different reason.  Don’t accidentally implicate yourself to another crime!).  

Never give them more information than they ask for.  Keep your answers as brief as possible.  Even if you think you have nothing to hide, you’d be surprised how often people are breaking the law without even realizing it.  Giving elaborate answers may inadvertently provide police probable cause to search you or your vehicle.

They can ask you for your driver’s license and registration, and in New York, they can ask you to take a breathalyzer (you technically can refuse, but if you do, it’s an automatic license revocation).  Police can also order you to step out of your vehicle.  Even if they start to search you or your car illegally, let them do it.  Don’t be a martyr.  You’ll just get yourself into more trouble.  It’s not fair, but it’s reality.  Remember, they have a gun.  And they’re far more concerned about their own safety than yours.  Challenge it in court, not on the sidewalk.

With that being said, I’m in the process of writing an article premised on the idea that no attorney should advise a client to voluntarily speak to the police under any circumstances—even if they witness or are a victim of criminal activity*—because anecdotal evidence suggests it will always be against their penal interest to do so, absent structural reforms in the law.

People do dumb and/or weird things when they’re in stressful situations.  They say things they don’t mean.  They utter sentences that come out wrong.  They misspeak.  They remember things wrong.  They give vague answers that can be interpreted in multiple ways.  This creates a high risk of accidentally implicating yourself in a crime.  It’s even higher when you’re being detained.  

Other times, people simply react as one would expect, and they end up paying for it. Like Kenny Dixon, who discovered his stepson’s dead body in his garage after the latter committed suicide.  A police officer at the scene grabbed Dixon’s arm and tried to push him away from his stepson’s body.  Dixon, who was understandably inconsolable, asked the officer not to touch him.  Dixon was tackled, punched, and beaten by several officers at the scene, then arrested and charged a felony.  Thank goodness the police were there to help the victim’s family cope with their grief!

So yes, don’t talk to the police unless you have to.  If you’re being detained, don’t consent to searches, always answer “no” when asked if you know why you’re being detained, and don’t give them more information than they ask for.  Even fi you think you’re helping your case, it’s far more likely that you aren’t.

*(excepting mandatory reporting laws, of course)

April 16, 2014
US elections are rigged. But Canada knows how to fix them.

From the article:

So is it possible to end gerrymandering? Well, the country just north of us managed to pull it off. “Canadian reapportionment was highly partisan from the beginning until the 1960s,” writes Charles Paul Hoffman in the Manitoba Law Journal. This “led to frequent denunciations by the media and opposition parties. Every ten years, editorial writers would condemn the crass gerrymanders that had resulted.” Sound familiar?

Eventually, in 1955, one province — Manitoba — decided to experiment, and handed over the redistricting process to an independent commission. Its members were the province’s chief justice, its chief electoral officer, and the University of Manitoba president. The new policy became popular, and within a decade, it was backed by both major national parties, and signed into law.

Independent commissions now handle the redistricting in every province.  "Today, most Canadian ridings [districts] are simple and uncontroversial, chunky and geometric, and usually conform to the vague borders of some existing geographic / civic region knowable to the average citizen who lives there," writes JJ McCullough. “Of the many matters Canadians have cause to grieve their government for, corrupt redistricting is not one of them.” Hoffman concurs, writing, “The commissions have been largely successful since their implementation.”

April 15, 2014
Former police officer pleads guilty to faking DUI reports, collecting overtime

LTMC: emphasis mine.  This is what happens when you give financial incentives to police departments to “make” crime.  Corruption inevitably follows.

(Source: generalinjusticeblog)

7:39pm  |   URL: http://tmblr.co/ZMMjnx1D9XF5B
  
Filed under: politics police dui dwi 
April 12, 2014
How Lending A Friend Your Car, Then Going to Bed Can Land You a Life Prison Sentence

From the article:

Several years ago I read a piece in The New York Times by Adam Liptak about Ryan Holle. Ryan, who had no prior record, is serving a life sentence with no chance of parole in Florida. He was convicted of pre-meditated murder, even though no one, including the prosecutor, disputes that Ryan was asleep in his bed at home at the time of the crime. This could only happen in America, because we are the only country that retains the Felony Murder Rule. What the Felony Murder Rule essentially says is if anyone has anything to do with a felony in which a murder takes place, such as a robbery, that person is as guilty as the person who has committed the murder. Every other country including England, India and Canada has gotten rid of it because of its unintended consequences. In America, Michigan, Kentucky and Hawaii no longer have the law. The Canadian Supreme Court ruled, when they discarded the Felony Murder Rule, that a person should be held responsible for his own actions not the actions of others. 

Read more

April 11, 2014
When Judges Attack: Prosecutorial Smackdown Edition

An Assistant District Attorney in the Bronx was recently destroyed in open court by a Bronx Criminal Court Judge.  The judge was livid about the D.A.’s failure to turn over exculpatory evidence to the Defense during a rape trial.  The Defendant spent eight months in prison awaiting trial, and the evidence wasn’t disclosed until the end of the trial, after closing arguments.  The judge took the rare step of barring the prosecutor from ever appearing in his courtroom again.  The transcript of the hearing is epic, to say the least:

The Court: I think I’ve heard enough. You can stay standing. 

I was admitted to the bar in April of 1987, and I was, at the time, an Assistant District Attorney in the Bronx DA’s Office.  I’ve always been very proud of that association, until today.  I also served as a defense lawyer and 18B counsel.  I’ve tried homicides; I have tried child molestation cases; and I have tried drug sale cases.

I have now been on this bench nine years and three months.  In all that time, as a prosecutor, as a defense lawyer, as judge, I have never once seen a Brady violation as egregious as this.

To my mind, this is an utter and complete disgrace, not just for you, but for your office in general.  Disgrace.

The excuse you offer, passing the file back and forth, no one looking and no one knowing what anything is, saddens me on one level and makes me sick on another.

For my own peace of mind, I absolutely refuse to believe that you did this on purpose.  However, it is gross negligence on your part to have not found this information, and turned it over to Defense, and for your supervisor to find it and turn it over right after Defense summations.  I emphasize those words: Gross negligence.

I recall the Defense asking before the trial started for any notes that the People had in their possession, and you blithely said, “No, we don’t have any notes.”  It turned out, unfortunately, to be a lie.  Your actions bring disgrace to both your office and to yourself.

But what really concerns me more than anything else is: Where is the justice for your complaining witness?  Where is her justice?  She had the right to have this case heard by a jury and have that jury decide whether or not they believed her allegations.  She’s lost her chance at that justice due to your conduct.

What about [the Defendant’s] justice?  The Defendant had a right to have a jury decide whether or not they believed those allegations.  Where is his justice waiting for his trial?  You have failed on so many levels, on so many levels.

Here are your sanctions:  You’re going to leave this room, and you’re never going to come back.  You can’t appear before me anymore.  I’ll tell you why, because I cannot trust anything you say or do.  I can’t believe you.  I can’t believe your credibility anymore.  The only thing a lawyer has has to offer is their integrity and their credibility, and when you’ve lost that, there is no purpose in your appearing before this Court.

Step out.

March 31, 2014
Judge said du Pont heir 'will not fare well' in prison

kohenari:

A Superior Court judge who sentenced a wealthy du Pont heir to probation for raping his 3-year-old daughter noted in her order that he “will not fare well” in prison and needed treatment instead of time behind bars, court records show.

Judge Jan Jurden’s sentencing order for Robert H. Richards IV suggested that she considered unique circumstances when deciding his punishment for fourth-degree rape. Her observation that prison life would adversely affect Richards was a rare and puzzling rationale, several criminal justice authorities in Delaware said. Some also said her view that treatment was a better idea than prison is a justification typically used when sentencing drug addicts, not child rapists.

A lot of people are furious about the sentence handed down in this case, not to mention the language used to justify it. And I understand their shock and their outrage. But I don’t share it.

As someone who advocates for a more restorative approach to justice, it seems to me that a prison sentence in this case isn’t accomplishing anything other than punishment. And, given the details of the offense, the judge is almost certainly right that the offender would not fare well in prison. He’d likely be savagely beaten, raped, murdered … or all of the above. He might be put in protective custody in prison, but that would mean solitary confinement all day every day for the duration of his sentence which is, I think, a form of torture.

Of course, this is precisely what some people want: Offenders ought to be made to suffer in prison. The virtue of that suffering is the suffering itself; we are outraged by the offense and we want to pay back the offender in kind. That, for a great many people, is the whole point of prison. It’s why people complain about anything from prisoners’ access to educational opportunities, to television privileges, and to three square meals a day. If you’re watching tv or taking a correspondence course, you’re obviously not suffering enough for the offense that landed you in prison.

For my part, I think we’d do better to think about steps we can take to right the wrong that occurred and to ensure that it isn’t repeated. Of course, it’s clear that society needs to be protected from dangerous offenders and so, in some cases, probation would be completely inappropriate; this doesn’t appear to be one of those cases. But in case my reading of the situation is incorrect and this offender presents a potentially ongoing danger, the judge has mandated treatment (both inpatient and then outpatient) and has ordered the offender to stay away from children. Failure to comply will surely result in a prison sentence.

What remains, then, is an attempt to right the wrong or respond to the harm that has been done. In cases where an offender is sentenced to prison, the public feels that justice has been done and we can all move forward. But there’s absolutely no line drawn for us between a prison sentence for the offender and righting the wrong experienced by the victim … because there really isn’t any immediate connection between those two things and because we don’t spend a whole lot of time considering the needs of victims.

Restorative justice isn’t about leniency for offenders; it’s about discovering and attempting to meet the needs of victims while encouraging offender accountability. It’s just not clear that lengthy prison sentences under the worst possible conditions accomplishes either of those things.

I completely understand the gut feeling that something terrible ought to happen to a person who harms a child; as a father myself, I’m disgusted and outraged by this man and what he did to his children. But that doesn’t mean we ought to turn that feeling into policy, especially if doing so accomplishes nothing more than making the public feel good about getting vengeance. Taking out our collective wrath on offenders doesn’t necessarily do anything to help their victims, nor does it automatically lead to offender accountability. Working to accomplish those things, rather than to sate our desire for vengeance, would likely result in a radical change in the way we think about justice and punishment, and the way we respond to crime.

LTMC: With stories like this, I find that people often have difficulty separating two issues: inequality of outcomes versus the qualitative justice of each outcome.  

It is unjust that poor sex offenders typically get thrown to the wolves in prison, while a rich sex offender is given treatment and probation because he “won’t fare well” in prison.  Wealth shouldn’t dictate the kind of justice a person receives.  That’s an inequality of outcomes that everyone can agree is unfair.

The question remains, however, of how outcomes should be equalized. The knee-jerk reaction to this situation is that this guy escaped a well-deserved stint in the punitive hellscapes America calls prisons.  But sentencing a person to eternity in a concrete hate factory is not necessarily the right result, for all the reasons Prof. Kohen stated above. 

There are ways that we can deal with serious sex offenders that don’t involve subjecting them to the absolute worst humanity has to offer—particularly since sex offenders have one of the lowest recidivism rates of all violent crimes.  Contrary to popular belief, many of these people are  redeemable.  

But what about the victims?  How will they get justice unless the offender suffers commensurate to their crime?  I’ll let the infamous bleeding heart hippie Winston Churchill plead my case:

The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilisation of any country. A calm dispassionate recognition of the rights of the accused, and even of the convicted criminal, against the State— a constant heart-searching by all charged with the duty of punishment— a desire and eagerness to rehabilitate in the world of industry those who have paid their due in the hard coinage of punishment: tireless efforts towards discovery of curative and regenerative processes: unfailing faith that there is a treasure, if you can only find it, in the heart of every man. These are the symbols, which in the treatment of crime and criminal, mark and measure the stored-up strength of a nation, and are sign and proof of the living virtue in it.

Liked posts on Tumblr: More liked posts »