Are You Being Suspiciously Polite?

An Ohio man who was arrested after police discovered marijuana and a loaded firearm in his vehicle recently got great news from  an Ohio Appellate court [opinion here]. They affirmed the trial court’s decision to suppress the evidence in his case.  His initial crime?  Being “overly polite” and “breathing heavily:

On December 12, 2012, on an Ohio state highway, Patrolman Jared Haslar pulled over Joshua Fontaine for driving 45 miles per hour in a 35 miles per hour zone. According to a subsequent court ruling, Haslar became “suspicious of criminal activity” after Fontaine exhibited “unusual” body language and behavior. “He was extremely-like almost overly polite,” Haslar testified, “and he was breathing heavily at times while I was talking to him.”

Now, the key facts:

Haslar believed this behavior provided reasonable suspicion that Fontaine was up to no good, so he brought the man back to his patrol car, where he patted him down for weapons and wrote up a traffic ticket.* At this point, a second officer arrived with a drug-sniffing dog. The dog reportedly indicated that it smelled illicit material, so the officers searched the vehicle, uncovering a loaded .40-caliber handgun and a bag of marijuana.

And the courts’ response:

The trial court suppressed the firearm and marijuana, concluding that too much time had passed between the initial stop and the search and that excessive politeness does not constitute probable cause to search a vehicle. Ohio’s Eighth District Court of Appeals upheld the lower court’s ruling. As soon as Haslar finished writing the citation, it said, Fontaine should have been free to go in the absence of evidence that he was involved in criminal activity.

“We agree with the trial court,” wrote Judge Mary J. Boyle, “that ‘overly polite’ and ‘heavy breathing’ are not sufficient indicators that give rise to a reasonable suspicion of criminal activity.”

Reasonable suspicion is a problematic standard.  It’s generally up to individual judges to determine what they think meets the definition.  So we end up with wildly divergent jurisprudence in state courts as judges undertake the impossible task of intuiting what a “reasonable suspicion” is.  What we do know is that it has to be based on more than a “hunch.”  The case that invented Reasonable Suspicion, Terry v. Ohio, has this to say about when an officer has Reasonable Suspicion:

Our evaluation of the proper balance that has to be struck in this type of case leads us to conclude that there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man, in the circumstances, would be warranted in the belief that his safety or that of others was in danger. 

Under the Court’s logic, there was never Reasonable Suspicion of criminal activity over and above the traffic violation.  So anything that happened after the police wrote the ticket is an unreasonable Search & Seizure.

While I agree with the outcome of this case, it also raises some interesting legal questions.  For example, why isn’t this case analogous to Illinois v. Caballes?  I’ll borrow Wikipedia’s summary of the facts for brevity’s sake:

An Illinois state trooper stopped Roy Caballes for speeding on an interstate highway. When the trooper reported the stop to his headquarters, a member of the state police’s drug interdiction squad overheard the report and proceeded to the location of the stop. When the drug officer arrived, Caballes was in the trooper’s car while the trooper was writing out a warning ticket. The drug officer walked his drug-sniffing dog around Caballes’ car, and the dog alerted at the trunk. Inside the trunk, the officers found marijuana. The whole episode lasted less than 10 minutes.

The U.S. Supreme Court ruled the Search and Seizure in Caballes permissible.  These are nearly the same facts: (1) Suspect gets pulled over for traffic stop, (2) Second Officer shows up a short time later with drug dog,  (3) drug dog alerts officers to drugs, (4) car is searched (5) contraband is found.

If you read the Ohio court’s opinion, the court even cites Illinois v. Caballes in its decision, without discussing the fact that SCOTUS ruled a very similar search Constitutional under the same facts.  What was the distinguishing factor?

My guess is that in Caballes, the second Officer showed up before the original purpose of the stop concluded (i.e. before the ticket was issued).  In the case from Ohio, the first officer continued to detain the suspect after the purpose of the original stop was concluded (i.e. after the ticket was issued).  In other words, the Ohio officer continued to detain the suspect for no other reason than to wait for a drug dog to show up and sniff his car.  But it would presumably be ok if the drug dog just “happened” to show up before the first officer finished writing his ticket.

So an Ohio officer looking to get around these two precedents might purposefully “take his time” writing tickets if he wants to get a drug dog to show up and have a drug sniff be ruled permissible.  On the other hand, Caballes takes into account the length of the time it takes to write out the ticket, so there’s a ceiling on how long the officer can extend the stop.  Either way, there’s some wiggle-room there.  A little too much, if you ask me.

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Know The Law!

Hinton v. Alabama provides excellent example of how knowing the law for your client can literally be a matter of life and death.

Anthony Hinton was accused of a double murder stemming from three restaurant robberies.  The primary evidence against him was ballistics tests that seemed to match bullets from the crime scenes with a gun in Hinton’s home.

The defense lawyer wanted to hire an expert, but he was under the mistaken belief that the state would only pay up to $1,000 for an expert witness.  However, the relevant statute had previously been amended to provide that defense lawyers are entitled to be “reimbursed for any expenses reasonably incurred in such defense to be approved in advance by the trial court.’”  Both the trial judge and Hinton’s lawyer were mistaken about this, but the judge gave Hinton’s lawyer the opportunity to file a motion to request more funding, which he did not do.

As a result of this confusion, Anthony Hinton’s lawyer found a poor expert whose testimony was impeached by the prosecution on cross-examination.  The jury believed the prosecution’s expert witnesses and Hinton was convicted.

During post-conviction proceedings, Hinton got new lawyers, who hired three expert witnesses, including the former head of the FBI Firearms Unit, who all testified that there was no evidence that the bullets found at the crime scenes matched Hinton’s gun.  Hinton’s lawyer could’ve gotten funding to pay these experts under Alabama law.  The Supreme Court described the oversight of Hinton’s lawyer as an “inexcusable mistake:”

Hinton’s attorney knew that he needed more  funding to present an effective defense, yet he failed to make even the cursory investigation of the state statute providing for defense funding for indigent defendants that would have revealed to him that he could receive reimbursement not just for $1,000 but for “any expenses reasonably incurred.” An attorney’s ignorance of a point of law that is fundamental to his case combined with his failure to perform basic research on that point is a quintessential example of unreasonable performance [under Constitutional norms].  . . . . [the] inadequate assistance of counsel here was the inexcusable mistake of law—the unreasonable failure to understand the resources that state law made available to him—that caused counsel to employ an expert that he himself deemed inadequate.

Interestingly, this case was decided per curiam, with no dissents from Scalia or Thomas, as generally happens when SCOTUS overturns a death sentence.  This only tends to reinforce the gravity of the lawyer’s mistake.

But the defense attorney was not the only one who screwed up here.  What is scary here is that both the trial judge and the attorney didn’t know the law.  And when Hinton’s attorney called around to other lawyers to inquire about the less-than-stellar expert he’d found, nobody asked him why he wasn’t looking for a better expert, given that the State of Alabama would have paid for it.  Alabama’s reimbursement statute was amended over a year before Hinton was arrested.  You’d think somebody along the way would have pointed this out.

Cases like this can be tough for criminal defense attorneys to digest.  On the one hand, we’re glad to see the Defendant get justice.  And the reminder to “always check the statute” makes us better lawyers.

On the other hand, every criminal defense attorney fears the day that they miss something huge in a client’s case, and that mistake costs the client their freedom.  None of us know our state’s Penal law word-for-word.  None of us know our state’s Criminal Procedure law or the rules of Evidence word-for-word.  There is just too much for any one person to know, and nobody can reasonably be expected to memorize it all.

But part of being an effective lawyer is knowing when to do your research.   We correct for deficiencies in legal knowledge by knowing when to double-check the statute books.  That’s part of knowing the law.  It’s what our clients depend on us for.  This is what I tell colleagues who are still in law school preparing to become lawyers.  Your client is depending on you to know the law.  It is impossible to know the contents of every single statute that might be relevant to your case.  But you need to know when it’s time to dig a little deeper into the law books to get the answer.

Hinton v. Alabama demonstrates this vividly.  When your client’s case comes down to challenging the credibility of the state’s expert witness, knowing how much money you can spend on a rebuttal witness is a big deal.  Anthony Hinton has probably been sitting on death row for almost 30 years because his lawyer didn’t take the trial judge’s suggestion to ask for more funding to get better expert witnesses.  He probably should have checked the statute after the judge said he wasn’t sure how much money the law allowed the court to grant the defense for expert witnesses.  He had queues and he didn’t take them.

But hindsight is 20/20.  Even seasoned lawyers can make mistakes like this from time to time.  Just like most doctors will miss at least one diagnosis at some point in their life that costs a patient life or limb, most criminal defense attorneys will miss a legal issue at some point in their careers that costs their client their freedom.  We just have to do our best to learn from others when it happens, and constantly work at refining our craft.  We can’t always do everything we’d like in our clients’ cases.  But we must be able to do enough.  At the very least, “enough” means giving your client the best defense the law will allow.  But you have to know what the law allows before you can give it to them.

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Watching The Watchers

The Fraternal Order of Police in Maryland is trying to get state legislators to a law that would expand the already impressive legal protections afforded to police officers:

A bill drafted by the Fraternal Order of Police would force investigators to throw out any evidence of police brutality, corruption, racial profiling or other serious abuses if they made even a technical mistake while looking into suspected wrongdoing. Police chiefs and sheriffs around the state, most of whom oppose the measure, say the bill would undercut their efforts to weed out bad cops and promote public trust in their departments.

This particular paragraph was a doozy:

The measure, sponsored by Sen. Brian E. Frosh and Del. Kathleen M. Dumais, a pair of Montgomery County Democrats, would provide police officers facing internal disciplinary action or firing with protections usually reserved for accused criminals looking at prison time. Even in Maryland, where public employees have extensive rights thanks to their political clout, no other group of state or local workers is covered by such safeguards.

The idea that criminal defendants get protection from “technical mistakes” made by police and prosecutors during their investigations is laughable.  As any law student that has finished a Criminal Procedure course can tell you, police and prosecutors are anything but obligated to throw out evidence procured through “technical” mistakes (or as we say in the Criminal Defense Bar, “illegally”).  The U.S. Supreme Court has long blessed the use of evidence against Criminal Defendants procured through “official lawlessness,” to use Justice Brennan’s phrase.  It all stems from a quaint bit of trolling from Justice Cardozo, who infamously opined in 1926 that throwing out evidence in criminal cases due to “technical errors” was intolerable, because the accused might benefit from the Government’s incompetence.  “The criminal is to go free because the constable has blundered.”

Pursuant to Justice Cardozo’s infamous and misguided alarum, under today’s Fourth Amendment jurisprudence, all but the most egregious “technical mistakes” are ignored when it comes to admitting evidence against a Criminal Defendant.  Few Criminal Defense attorneys exist who haven’t found themselves frustrated by the voluminous case law in both state and federal courts that upholds criminal convictions in the face of blatant misconduct by the Government.  The main culprit in these cases is usually the “harmless error” rule, encoded in the Federal Rules of Criminal Procedure as Rule 52, which imports the following language from former section 556 of Title 18 of the US code:

No indictment found and presented by a grand jury in any district or other court of the United States shall be deemed insufficient, nor shall the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant

In other words, the Government can screw up during a criminal prosecution and violate the Constitution, court rules, state, and federal law as many times as it wants—as long as the judge, after due consideration for his career prospects (no judge wants to be known as the jurist who set an accused child molester or murderer free on a “technicality”) doesn’t think there’s a reasonable possibility that the outcome of the trial could have been different.  Never mind that this basically requires the judge to jump into the minds of 12 separate jurors and predict how they might have reacted.  Just another “technicality” to brush aside.

And of course, alongside the “Harmless Error” rule is my favorite: the “Good Faith” exception to the Exclusionary Rule.  A bit of Judge-made law that has blessed more defective warrants and police misconduct than our beloved Founders could have ever thought possible.  As numerous commentators have noted, federal courts have created so many exceptions to the Fourth Amendment’s warrant requirement that the exceptions have basically swallowed the rule.  Any judge or prosecutor who wants to find a way to keep evidence in the record can usually find a way to do it.  The law of Search & Seizure is so perforated and flimsy at this point that it’s not hard to find a case that justifies the Government’s conduct in a given case.

So it is simply not true that this bill is giving Maryland police officers the same protections enjoyed by Criminal Defendants.  It is in fact giving police more rights than are enjoyed by criminal defendants.  If mere “technical” flaws in criminal investigation were sufficient to get evidence thrown out in criminal courts, we would have a much more reliable and fair criminal justice system.  But as any seasoned professional will tell you, that’s not the system we actually have.

The bill being proposed by the Maryland Fraternal Order of Police also demonstrates how a change of position can change someone’s point of view.  It’s funny how when it is the police whose conduct is being investigated for wrongdoing, they demand every procedural protection possible be afforded to them, and only the most reliable evidence be admitted against them.  But ask those same officers whether they believe Criminal Defendants should be afforded similar protections, their tune suddenly changes.  Funny how rigorous procedural protection for the accused suddenly becomes important when it is them sitting in the hot seat, and it is their livelihood and/or freedom being threatened by the Government.  It’s unfortunate that their concern probably won’t extend to Criminal Defendants anytime soon.

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Posner v. Posner

From The Problematics of Moral and Legal Theory (Via Abbe Smith):

I can confirm from my own experience as a judge that criminal defendants are generally poorly represented. But if we are to be hardheaded we must recognize that this may not be an entirely bad thing. The lawyers who represent indigent criminal defendants seem to be good enough to reduce the probability of convicting an innocent person to a very low level. If they were much better, either many guilty people would be acquitted or society would have to devote much greater resources to the prosecution of criminal cases. A bare-bones system for defense of indigent criminal defendants maybe optimal.

Yes.  Because the problem with our criminal justice system is that we aren’t convicting enough people of crimes.  Seems silly, wouldn’t you agree, Posner?

The federal criminal code contains thousands of separate prohibitions, many ridiculously obscure, such as the one against using the coat of arms of Switzerland in advertising, 18 U.S.C. § 708, or using “Johnny Horizon” as a trade name without the authorization of the Department of the Interior. . . . We want people to familiarize themselves with the laws bearing on their activities. But a reasonable opportunity doesn’t mean being able to go to the local law library and read Title 18. It would be preposterous to suppose that someone from [the Defendant's] milieu is able to take advantage of such an opportunity. 

So Posner speaks out of one side of his mouth complaining that bad defense lawyers are a good thing so that guilty defendants don’t go free.  He then speaks out of the other side of his mouth stating that our federal criminal code is so obscure that the average joe couldn’t possibly be expected to know when they are breaking the law.  Wouldn’t we want better defense attorneys to help prevent people from being swallowed up by a counter-intuitive, increasingly cumbersome federal criminal code?

Of course, it’s not a day that ends with a “Y” unless some judge or prosecutor is trashing criminal defense attorneys.  While the latter is busy getting people off on “technicalities” (read: protecting peoples’ Constitutional rights), the former get to deliver the message from on high that we should encourage our policy makers to create a justice system that thrives on bad defense attorneys—and that such a system is actually more just!  And sometimes if you’re lucky, you’ll get someone who has already realized how ridiculous this is, and manages to contradict himself elsewhere.  Posner wins again.  Posner, meanwhile, limps back to the drawing board, to pontificate more about things Posner is clearly more qualified to discuss.  

If only Posner listened to Posner.  The former might convince the latter that his views on criminal defense attorneys are sorely misplaced.


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Power Begets Privilege

When South Carolina Supreme Court Justice Donald Beatty told a meeting of the state’s prosecutors that the gravy train was over for prosecutorial misconduct, he scared a few people.  Apparently, his admonition of impending accountability was a bit more harsh than they expected:

Beatty, elected to the Supreme Court in 2007, told the audience of prosecutors they had “been getting away with too much for too long” and the high court will no longer turn a blind eye to unethical conduct such as witness tampering, selective and retaliatory prosecutions, perjury and suppression of evidence.

He added that “you better follow the rules or we are coming after you and will make an example,” according a summary of his comments.

“The pendulum has been swinging in the wrong direction for too long and now it’s going in the other direction,” the summary quotes him as saying. “Your bar licenses will be in jeopardy. We will take your license.”

In reaction to this, thirteen of the state’s sixteen solicitors (the South Carolina equivalent of a district attorney) signed a letter asking that Justice Beatty recuse himself from their criminal appeals, for fear that he would be biased against them when hearing their cases.

Recently, the South Carolina Attorney General joined the clarion call for Beatty to recuse himself.  As Turley notes at the link, this move “seems intended to signal other justices and judges that such criticism of prosecutors will not be tolerated.”  Turley continues:

For the record, I have long opposed judges and justices speaking publicly at many events, particularly Supreme Court justices. However, in light of past comments by our justices, this is pretty tame in comparison. Moreover, there is no complaint from prosecutors about judges publicly promising to hammer criminal defenses, stop “technicalities” from freeing defendants, or curtailing defenses.

The emphasized text is on-point and revealing.  Prosecutors are supposed to play a dual role as zealous advocates and ministers of justice.  Their job is not to get convictions but to “see that justice is done.”  In theory, prosecutors should be equally concerned with judicial bias against criminal defendants as they are with bias against themselves.

But I highly doubt that anyone will discover a case where prosecutors banded together as a professional unit to protest judges who appear biased against criminal Defendants.  Where is the outcry over judges that sentence children to life in prison, or worse yet, sell children to prison administrators?  Where was the formal letter when a Texas judge chastized a jury for acquitting a Defendant?  When has there ever been a collective action taken by prosecutors to protect the rights of Criminal Defendants from overzealous judges?

The reaction of the South Carolina Solicitors and the AG demonstrate the sense of entitlement that has become commonplace in the prosecutorial profession—which is an entitlement to commit misconduct without any professional consequences.  If this seems a bridge too far, ask yourself why it is controversial for a South Carolina judge to tell prosecutors that, if they commit misconduct, they’ll lose their license to practice law?  How is this any different than telling private attorneys who commit professional misconduct that they’ll lose their law licenses?  How did we get to a place where a private attorney can get disbarred for giving a poor client bus fare to get to the court house, but a prosecutor who commits serial perjury on warrant applications remains happily employed?

What *is* uncontroversial is that prosecutors rarely face professional discipline for their screw-ups.  The only question is what to do about it.  The reasonable solution seems to be to hold prosecutors to the same level of professional accountability as private attorneys.  Unfortunately, the nearly unanimous opposition of the South Carolina Solicitors to Justice Beatty’s admonitions suggests that prosecutors remain quite attached to the unique degree of professional privilege they’ve acquired over the years.  They don’t want to be held to the same ethical standards as private attorneys because, well, their job is hard.  And who can blame them?  Who would want more potential liability for professional screw-ups rather than less?

But if prosecutors really are serious about their role as ministers of justice, then there is no longer any excuse to continue tolerating misconduct among their own ranks.  As exoneree John Thompson put it, “mistakes can happen.  But if you don’t do anything to stop them from happening again, you can’t keep calling them mistakes.”  If the Solicitors of South Carolina are really that scared of more vigorous judicial oversight, then perhaps they should turn their glances inward and reflect on why a judge with years of experience might come to this conclusion, rather than shy away from a much-needed sea-change in how the justice system handles errant prosecutors.

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The Death Penalty Blues

“If I can demonstrate that [the punishment of death] is neither necessary nor useful, I shall have gained the cause of humanity.”

— Cesare Beccaria, Dei delitti e delle peneCh. 28 (1764)

Andrew Cohen has an interesting article up at the Atlantic about the Death Penalty.  He notes a trend in the thought process of Supreme Court Justices who deal with capital cases: the longer they are on the bench, the more likely they are to change their mind about the Constitutionality of the Death Penalty.  Here’s Justice Blackmun from a 1994 case, Callins v. Collins:

The basic question [about the Death Penalty]—does the system accurately and consistently determine which defendants “deserve” to die?—cannot be answered in the affirmative. It is not simply that this Court has allowed vague aggravating circumstances to be employed, relevant mitigating evidence to be disregarded, and vital judicial review to be blocked. The problem is that the inevitability of factual, legal, and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent, and reliable sentences of death required by the Constitution.

Here’s Justice Stephens in 2008, from Baze v. Rees:

Litigation involving both challenges for cause and peremptory challenges has persuaded me that the process of obtaining a “death qualified jury” is really a procedure that has the purpose and effect of obtaining a jury that is biased in favor of conviction.

Our former emphasis on the importance of ensuring that decisions in death cases be adequately supported by reason rather than emotion has been undercut by more recent decisions placing a thumb on the prosecutor’s side of the scales.

A third significant concern is the risk of discriminatory application of the death penalty. While that risk has been dramatically reduced, the Court has allowed it to continue to play an unacceptable role in capital cases.

Whether or not any innocent defendants have actually been executed, abundant evidence accumulated in recent years has resulted in the exoneration of an unacceptable number of defendants found guilty of capital offenses.

Cohen notes that Justice Powell and O’Connor also had doubts about the Death Penalty near the end of their tenure.  But what about Justices that flipped the other way, from opposing to supporting the Death Penalty?  It would appear that none exist:

 [L]et’s list the Supreme Court justices of our time, or of our parents’ time, who started out as advocates for the abolition of capital punishment but whose experience with capital cases on the High Court over decades caused them to support the death penalty. Alas, we can’t do it. Not a single justice has ever been so converted. [...]

This is interesting stuff.  But Cohen also notes that nobody seems to be arguing that the Death Penalty violates the 8th Amendment’s ban on “cruel and unusual” punishment anymore:

Much about the death penalty today, even by the murky standards of Furman or Gregg, is indefensible, which helps explain why three of the justices responsible for its resurrection in 1976 stopped defending it. And yet the Supreme Court persists today in endorsing America’s capital regimes without even candidly acknowledging the flaws in them. Meanwhile, the ultimate question—whether the death penalty violates the Eighth Amendment as “cruel and unusual”—never even comes up anymore because advocates understand that there are at least five votes on the current Court, perhaps more, to sustain capital punishment.

Justice Brennan infamously used to trade dissents with Justice Marshall in Death Penalty cases after it was revived in Gregg v. Georgia.  In his dissent to Gregg, Brennan wrote:

The fatal constitutional infirmity in the punishment of death is that it treats “members of the human race as nonhumans, as objects to be toyed with and discarded. (It is) thus inconsistent with the fundamental premise of the Clause that even the vilest criminal remains a human being possessed of common human dignity.” … As such it is a penalty that “subjects the individual to a fate forbidden by the principle of civilized treatment guaranteed by the [Eighth Amendment].” I therefore would hold, on that ground alone, that death is today a cruel and unusual punishment prohibited by the Clause. “Justice of this kind is obviously no less shocking than the crime itself, and the new ‘official’ murder, far from offering redress for the offense committed against society, adds instead a second defilement to the first.

In one of his dissents from a denial of certiorari, Brennan described the process of death by electric chair:

Th[e] evidence suggests that death by electrical current is extremely violent and inflicts pain and indignities far beyond the “mere extinguishment of life.” Witnesses routinely report that, when the switch is thrown, the condemned prisoner “cringes,” “leaps,” and “fights the straps with amazing strength.” “The hands turn red, then white, and the cords of the neck stand out like steel bands.” The prisoner’s limbs, fingers, toes, and face are severely contorted. The force of the electrical current is so powerful that the prisoner’s eyeballs sometimes pop out and “rest on [his] cheeks.” The prisoner often defecates, urinates, and vomits blood and drool.

But surely we have solved this issue with the advent of lethal injection: it puts the person to sleep, and then stops their heart.  Boom.  No pain, no struggle, it’s a peaceful ride into dreamland.  This would seem to alleviate some of Brennan’s concerns.

Unfortunately, it’s not that simple.  There is plenty of evidence that Lethal Injection is not the straight-forward joyride it’s been made out to be.  First, not all Lethal Injections are created alike.   Montana’s highest court recently struck down their Lethal Injection law as Cruel & Unusual, pointing to problems in its regulation and execution.

Second, Lethal Injection has been bungled in the past.  In 2009, Ohio authorities tried to execute a man named Romell Broom for two hours.  There was no physical harm done, but imagine the psychological torture of those two hours; incompetent executioners fumbling with a needle that, in Broom’s case, will suffocate him in his sleep.

Third, studies have been done showing a non-trivial likelihood that some victims of Lethal Injection were quite aware of their circumstances when they were killed.  To borrow from Wikipedia:

In 2005, University of Miami researchers, in cooperation with an attorney representing death row inmates, published a research letter in the medical journal The Lancet. The article presented protocol information from Texas and Virginia which showed that executioners had no anesthesia training, drugs were administered remotely with no monitoring for anesthesia, data were not recorded and no peer-review was done. Their analysis of toxicology reports from Arizona, Georgia, North Carolina, and South Carolina showed that post-mortem concentrations of thiopental in the blood were lower than that required for surgery in 43 of 49 executed inmates(88%); 21 (43%) inmates had concentrations consistent with awareness.[4] This led the authors to conclude that there was a substantial probability that some of the inmates were aware and suffered extreme pain and distress during execution.

But even if we ignore all of this information, Justice Blackmun’s objection still remains unaddressed.  We know with a statistically significant degree of certainty that innocent people are executed.  In order to support the Death Penalty, you must support the killing of innocent people.  If that makes you uncomfortable, you should probably stop supporting the Death Penalty.

This may seem to be an oversimplification of the issue.  But it’s really not.  It may comfort you emotionally to think about an “evil” person getting what they deserve.  But we know we are going to get it wrong at least some of the time due to human error.  According to Professor Risinger at the link above, wrongful convictions occur in 3-5% of the Capital cases he’s studied.  So we’re not talking about 1 in a million.  More like 1 in 20.  In other words, it’s not matter of if innocent people get executed.  It’s a matter of when.  If you support the Death Penalty, you have to be willing to argue that killing a handful of innocent people from time to time is worth it to ensure that bad people can still be executed.  I personally find that view reprehensible.  But, you know, different strokes.

Given these realities, it comes as no surprise that the longer Supreme Court Justices deal with Death Penalty cases, the more likely they are to believe that it is Constitutionally infirm.  All of this information is out there.  Supreme Court Justices are just uniquely predisposed to encountering it since they deal with Death Penalty cases regularly.  Given how much information is out there, it does not surprise me in the least that the longer Supreme Court Justices deal with Death Penalty cases, the less likely they are to support it.

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About That New Police Professionalism

In 2006, The Supreme Court issued a decision, Hudson v. Michigan, striking down the Exclusionary Rule for common law knock-and-announce violations by police.  The Court’s decision assumed that evidence obtained subsequent to a knock-and-announce violation didn’t need to be suppressed, because there were other more “tolerable” ways to deter unlawful police conduct than excluding evidence at a suppression hearing.

One of the alternatives to exclusion, according to Justice Scalia, was internal police discipline, which was bolstered by the increasing professionalism of police departments:

Another development over the past half-century that deters civil-rights violations is the increasing professionalism of police forces, including a new emphasis on internal police discipline. Even as long ago as 1980 we felt it proper to “assume” that unlawful police behavior would “be dealt with appropriately” by the authorities, [citing United States v. Payner], but we now have increasing evidence that police forces across the United States take the constitutional rights of citizens seriously. There have been “wide-ranging reforms in the education, training, and supervision of police officers.” [citing Samuel Walker's books]. Numerous sources are now available to teach officers and their supervisors what is required of them under this Court’s cases, how to respect constitutional guarantees in various situations, and how to craft an effective regime for internal discipline. [citing various works]. Failure to teach and enforce constitutional requirements exposes municipalities to financial liability. [citing Canton v. Harris].

Nothing that crazy so far.  But here’s the money quote:

Moreover, modern police forces are staffed with professionals; it is not credible to assert that internal discipline, which can limit successful careers, will not have a deterrent effect. 

Based on this, one would think that police are becoming less irritable and more judicious in the execution of their duties.  One might think that the culture of law enforcement has changed for the better over the past few decades.

When the decision came out, journalist Radley Balko immediately provided some examples of “Scalia’s New Police Professionalism” in action.  Samuel Walker, an expert on accountability measures in law enforcement institutions whom Scalia cited in his opinion, even called the Hudson decision a violation of his intellectual integrity.  Woops.

Against this backdrop, we get this gem today from Reason:

Eric Crinnian, a lawyer,  heard a loud banging at his door Monday night, he was instantly alarmed since a neighbor’s house was robbed a few weeks ago, so he grabbed a crow-bar.

Crinnian said three police officers were outside his house.

“I open the door a little bit wider and he sees that I have something in my hand, so he pulls his gun, tells me to put down whatever I’ve got and then come out with my hands up, so I do,” Crinnian said.

They wanted to know where two guys were, and Crinnian later found out police believed they violated parole.

“I said, ‘I have no idea who you’re talking about I’ve never heard of these people before,’” he said.

To prove it, he said police asked to search his house, Crinnian refused multiple times.  He said they needed a warrant.

Then he said one police officer started threatening him saying, “If we have to get a warrant, we’re going to come back when you’re not expecting it, we’re going to park in front of your house, where all your neighbors can see, we’re gonna bust in your door with a battering ram, we’re gonna shoot and kill your dogs, who are my family, and then we’re going to ransack your house looking for these people.”

So despite evidence of increasing professionalism in America’s police forces, we still have police behaving like bullies with badges, using inappropriate threats to scare private citizens so that the police don’t have to take on the burden of filling out paperwork—which in the case of a warrant application, is a Constitutional requirement.  Yet these officers appear to be offended by the fact that they might have to comply with the Constitution when performing their official duties.  Is this the professionalism that we are supposedly awash in after Hudson?

Make no mistake: the point being made here is not that all police officers behave this way.  The point is that this behavior, when it does happen, tends to go unchecked.  Scalia’s “New Police Professionalism” thesis is about accountability.  It posits that internal discipline places a meaningful check on this sort of behavior when it happens.  Yet there will probably not be any consequences for these officers if history is to be our guide.  They clearly behaved inappropriately, but it’s doubtful they will get anything more than  a slap on the wrist, despite making violent threats that would likely constitute criminal harassment if uttered by a private citizen.

Furthermore, systemic problems are also not being rooted out.  Professionalism implies a tireless commitment to increasing standards and improving performance.  Yet we have the NYPD stopping countless thousands with a 12% success rate—meaning that 88% of the people they stop are innocent (or at least appear to be).  As Judge Scheindlin noted not too long ago, how can you call it “reasonable suspicion” if you’re wrong 88% of the time?

The truth is that police have a tough job.  And one of the side effects of having a tough job is that one does not brook criticism from outside quarters easily.  This creates a culture wherein many police feel that their actions are justified, regardless of how inappropriate or excessive they may be.  For example, consider the case of Glenn Broadnax, an emotionally disturbed man who was apprehended by the NYPD:

The man, Glenn Broadnax, 35, of Brooklyn, created a disturbance on Sept. 14, wading into traffic at 42nd Street and Eighth Avenue and throwing himself into the path of oncoming cars.

A curious crowd grew. Police officers arrived and tried to corral Mr. Broadnax, a 250-pound man. When he reached into his pants pocket, two officers, who, the police said, thought he was pulling a gun, opened fire, missing Mr. Broadnax, but hitting two nearby women. Finally, a police sergeant knocked Mr. Broadnax down with a Taser. …

So two bystanders got shot.  Fair enough.  Accidents happen.  Police should not be expected to have a 100% accuracy rate.  But this case takes an interesting turn:

Initially Mr. Broadnax was arrested on misdemeanor charges of menacing, drug possession and resisting arrest. But the Manhattan district attorney’s office persuaded a grand jury to charge Mr. Broadnax with assault, a felony carrying a maximum sentence of 25 years. Specifically, the nine-count indictment unsealed on Wednesday said Mr. Broadnax “recklessly engaged in conduct which created a grave risk of death.”

“The defendant is the one that created the situation that injured innocent bystanders,” said an assistant district attorney, Shannon Lucey.

So basically, despite the fact that Broadnax was unarmed, and the police are the ones who mistakenly shot two people, they are charging Broadnax as if he is the one who shot them.

This may seem reasonable on its face.  After all, Broadnax is the one who created the situation.  But imagine this case didn’t involve police.  Imagine instead it was two conscientious bystanders with concealed-carry permits that were trying to stop Broadnax from continuing his disruptive behavior.  They see Broadnax reach into his pants.  Fearful that he is drawing a gun, the conscientious bystanders fire, and accidentally hit two bystanders.  Would we have the same result?

I’m not so sure that we would.  There’s a clear case for self-defense, but that’s an affirmative defense that comes into play only after the conscientious citizens get indicted.  Maybe the prosecutor decides that the conscientious citizens were too quick to pull their weapons.  Maybe the prosecutor decides that they shouldn’t have pulled their guns in a crowded street.  Maybe the prosecutor decides that charges are warranted, because despite the good motives of the conscientious citizens, their behavior of reckless enough to warrant a criminal charge.

This type of analysis doesn’t happen when the shooter is wearing a badge.  There is a clear double standard here, one that gets applied with regular frequency.  And it’s one of the many reasons why internal police discipline doesn’t work—because police supervisors are often using the same double standards to determine whether their subordinates did anything wrong.

Sometimes the problem gets so bad that the entire chain of law enforcement—from the police precinct to the D.A.’s office—is incapable of policing itself.  That’s what happened in Maricopa County, where misconduct by a rogue police officer from the Phoenix Police Department was not only ignored, but tolerated by both police supervisors and prosecutors alike.  Judge Kozinski of the Ninth Circuit was not kind in his assessment:

The Phoenix Police Department and [Detective] Saldate’s supervisors there should be ashamed of having given free rein to a lawless cop to misbehave again and again, undermining the integrity of the system of justice they were sworn to uphold. As should the Maricopa County Attorney’s Office, which continued to prosecute Saldate’s cases without bothering to disclose his pattern of misconduct.

And so we are left wondering when Scalia’s New Police Professionalism will rear its head.  It is 2013 and accountability in law enforcement institutions is still an issue.  Systemic failures still exist.  and the New Police Professionalism is still nowhere in sight.

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