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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The Prosecutorial Mindset

In the Fall 2012 issue of the Washburn Law Journal, Monroe H. Freedman and Charles E. MacLean, academics both, had a battle royal on the topic of prosecutorial misconduct.

In Freedman’s article, he makes a vigorous case that Prosecutorial misconduct is both widespread and unaddressed.  He drops this withering salvo on page 2:

One of the two greatest scandals in lawyers’ ethics is the general failure of disciplinary authorities and courts to take appropriate remedial action against prosecutors who violate both the constitutional rights of criminal defendants and the prosecutors’ own ethical obligations. For example, a computerized review has shown that there have been only 100 reported cases of professional discipline of federal and state prosecutors in the previous century—an average of only one disciplinary case per year. Moreover, these cases are not limited to violations of the rights of criminal defendants but include cases of bribery, extortion, conversion, and embezzlement of government funds. As one federal judge observed, “When faced with motions that allege governmental misconduct, most district judges are reluctant to find that the prosecutors’ actions were flagrant, willful or in bad faith.” And Professor Bennett Gershman, the leading authority on prosecutorial misconduct, has concluded that discipline of prosecutors is “so rare as to make its use virtually a nullity.

Ouch.  MacLean isn’t having it though.  He finds fault with Freedman’s anecdotes, such as United States v. Aguilar, wherein the prosecutors:

engaged in a series of improper and/or unethical behavior, including (1) falsifying entries in search warrants and, on at least six warrant applications, conducting searches of premises not enumerated in issued warrants, (2) proffering false and misleading grand jury testimony by a named FBI special agent, (3) failing to produce and withholding grand jury testimony and related discoverable evidence, (4) wrongfully obtaining certain privileged marital communications, and (5) exceeding the court’s relevance rulings by eliciting irrelevant testimony.

I will return to the bolded text in a moment.  While Freedman cites the court’s mere dismissal of the case as evidence of reluctance to hold prosecutors accountable, MacLean dismisses Freedman’s concerns:

That is a woeful record, to be sure. However, the trial court in Aguilar acted wisely and decisively when it suppressed the tainted evidence during the trial and eventually dismissed the indictment without leave to re-file.  As the court noted in conclusion, the government team “should not be permitted to escape the consequences of [its mis-]conduct. By not allowing [the government] to benefit from a ‘do-over,’ the Court hopes that this ruling will have a valuable prophylactic effect . . . . For the foregoing reasons, the convictions . . . are vacated and the . . . Indictment is dismissed.”

Well, sure the court acted wisely.  It was the right decision.  There was blatant misrepresentations and misconduct by the prosecutor, including six instances of purgery on warrant applications.  This is the sort of stuff that gets attorneys in private practice disbarred.  But apparently, simply dismissing a case is enough for MacLean:

Aguilar does not stand for the proposition that judges are reluctant to hold prosecutors to task for misconduct. On the contrary, it stands for quite the opposite. There is no denying that the court’s findings disclose a consistent series of various types of misconduct by the prosecutors and other government agents. Some prosecutors push the envelope too far; sanctions alone will not put an end to that. But good prosecutors learn from other prosecutors’ mistakes, as well as from court decisions, whether the courts suppress evidence, dismiss the charge or case, enforce the double jeopardy bar, or impose sanctions against the prosecutor’s attorney license.

There are two points to make here.  First, the idea that judges will impose sanctions against prosecutors’ attorney licenses is not supported by any evidence to date.  The 2010 Ridolfi-Possley study, for example, showed that less than 1% of reported cases of misconduct resulted in professional discipline for the prosecutors in California.  As Freedman suggests in his article, virtually every scholar who studies the topic inevitably discovers a shocking dearth of instances of ethical discipline for wayward prosecutors.  It is rare enough to be negligible.

Second, MacLean’s discussion of “good prosecutors” learning from bad prosecutors’ mistakes is irrelevant.  Good prosecutors are not the ones we are concerned about.  Good prosecutors care about the Constitutional rights of Defendants.  Good prosecutors attend CLE’s and re-read Brady to make sure they are complying with their legal and ethical obligations.  Good prosecutors care less about getting “scumbags off the street,” and more about making sure they do an honest job, disclose evidence to defendants, and uphold the Constitution.

Good prosecutors already do all of this—even when that means they have to let the bad guy go free, because they know that Constitutional rights are bigger than any one case.  They know that making exceptions for bad people creates case law that inevitably reaches “not-so-bad” people.  As Thomas Paine wrote nearly three centuries ago:

An avidity to punish is always dangerous to liberty. It leads men to stretch, to misinterpret, and to misapply even the best of laws. He that would make his own liberty secure, must guard even his enemy from oppression; for if he violates this duty, he establishes a precedent that will reach to himself.

So the issue at hand is not about making good prosecutors better.  It is about what happens when malicious or incompetent prosecutors make repeated or big mistakes.

I want to drive home how absurd MacLean’s argument is here.  The prosecutors in Aguilar committed perjury on six warrant applications.  Perjury is generally considered a felony offense in most jurisdictions.  That is six felony-level offenses.  Perjury also involves making a knowing misrepresentation to the Court, in addition to engaging in deceitful conduct.  This is the kind of stuff that State Bars regularly deny applicants admission for.  But a prosecutor does it, and a mere dismissal is viewed as appropriate medicine?

This is a good example of why prosecutors’ offices are institutional incompetent to be judges of their own ethical obligations.  Just as prosecutors regularly interpret Brady to mean that they don’t have to disclose relevant evidence to the Defendant’s lawyer, they also convince themselves that a light slap on the wrist (e.g. getting one of your cases dismissed) is an appropriate sanction for committing serial perjury.  How any honest prosecutor good make MacLean’s argument with a straight face is beyond me.  Particularly when the misconduct at hand is criminal in nature.

Obviously there are plenty of honest prosecutors.  Indeed, I’m sure that the majority of prosecutors are honest and genuinely want to uphold the law and respect defendants’ constitutional rights.  But when it comes to holding bad prosecutors accountable, the system does not work, and it has not worked for some time.  Aguilar demonstrates, rather than undermines that proposition.

With all that being said, it’s probably true that professor Freedman over-used anecdotal evidence to make his point.  But MacLean’s attempt to undermine Freedmans’ Aguilar anecdote only demonstrates the point that Freedman was trying to make in the first place: prosecutors are rarely punished in accordance with the wrongs—both legal and ethical—they commit.  When a prosecutor can commit six instances of perjury by falsifying statements on a warrant application and escape without even a mark on their professional license, something is wrong.  And it’s not with Freedman’s anecdotes.

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Another Gem From Judge Smith

From his State v. Floyd Y. concurrence, on the admissibility of hearsay:

[I]t is a mistake to suggest that, because a hearsay statement seems to be reliable, its “probative value” outweighs its “prejudicial effect.” The policy underlying the rule is that, in general, hearsay is without probative value as to the truth of the matter stated by the out-of-court declarant. And the more likely the jury is to accept the statement for its truth i.e., the more reliable the statement appears to be the greater the prejudice.

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A Quote For The Day

“I understand that no one wants to subject … victims to inconvenience or unpleasantness. But that is what usually happens when the State wants to incarcerate someone.”

— Matter of State of New York v Floyd Y., 2013 N.Y. LEXIS 3181, at 41 (N.Y. Nov. 19, 2013) (Smith, J., concurring).

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The Excited Police Officer Exception

Yesterday I commented on Scott Greenfield’s post regarding a new policy in Dallas, where police are now entitled to “remain silent” for 72 hours after they are involved in a shooting.  One of the “experts” involved in the policy change claimed that police need time to rest before they can accurately recall stressful events:

Alexis Artwohl, a nationally known behavior consultant for law enforcement agencies, said studies show officers need rest before they can accurately recount traumatic events.

This is bonkers, as I noted in my response:

This statement stands in direct contradiction to the logical foundation on which both federal and state laws of evidence rest. The Excited Utterance exception to the Hearsay rule, for example, is based on the idea that, under the stress of a traumatic or shocking event, a declarant is more likely to make a reliably truthful statement about the things they saw—precisely because they *don’t* have time to think about it and possibly alter their account to remove unflattering details.

The tomfoolery at work here is mindblowing. If this “expert’s” opinion is true, then what does that say about FRE 803(2) and state analogs? Should there now [be] a “police officer” exception to the Excited Utterance Exception?

Keep in mind that this is based on the work of a “nationally known behavior consultant for law enforcement agencies.”  So I’m going to assume she knows police pretty darn well.

If we assume that Alexis Artwohl is correct—that police really do need up to 72 hours to rest before they can accurately recall stressful events—then one of two things is true: (a) the minds of police work differently than the minds of every other human being on the planet, and they are thus entitled to a public policy exception in their favor, or (b) the logical justification for the Excited Utterance Exception to the Hearsay rule, which has existed for centuries, is a complete farce.  In either case, Alexis Artwohl should be given honorary PhD’s, J.D.’s, fellowships, visiting professorships, publishing offers, and numerous other accolades for revolutionizing not only the civil and criminal justice systems, but the field of human psychology.

Or she’s just wrong.  In which case, nobody should take her suggestions on this topic seriously.  I leave it to my reader to determine which one is the case.  But if you need up to 72 hours to think about it, I’ll understand.

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