There's been a lot of discussion lately on the militarization of the police force. Randy Balko got everyone interested with Rise of the Warrior Cop, including the mighty ABA which let him write a pretty good summary in their monthly magazine.
Of course, plenty of folks have been concerned about this for a long time.
What's curious for me is how the warrior cop has become acceptable in the court. Example: Officers go to investigate a domestic, find someone injured and intoxicated, rather than clearing him from the area before engaging in a search with a warrant, they just go around looking at his things, despite the fact that it obviously upsets him. And next thing you know cops are fighting with a badly injured drunk. When asked about it, the officers say, "I'm just trying to protect myself and the other officers." Ok. That's not really an answer to anything. But the judge nods sagely.
Or you have cops visit a home at 3 AM, barge inside and harass the naked occupants. Excuse: "They could be dangerous, I don't know what's going on in that house." Ok. So don't go in. "Well, but they could come out and attack me." Riiiiiight. Did you have any reason to think they were dangerous. "Every day I'm in danger." Fuck.
Judge: Yup. Scary out there.
No. No it isn't. Well, yes, but not all the time. There is no reason to take the guns blazing approach to EVERY FUCKING SITUATION.
So recently Police State USA posted this: http://www.policestateusa.com/2013/police-taser-man-to-get-him-off-a-roof-choke-drag-him-face-down-across-a-staircase-killing-him/
Which was, upsetting.
Then in Idaho, we get our own: http://www.spokesman.com/stories/2013/aug/26/man-shot-killed-cda-police-identified/
I can't get over the calm. These folks are upset, but it's like they feel they have to make a logical argument. Like there's a discussion to be had here. "Well, you see, when a man has a knife to his own throat, there's no reason to shoot him to death."
Yes. That is true. Assuming that's the case, you don't need to explain. The scenario explains itself.
Hell, I don't even know why they'd need to shoot a guy holding a knife. They have tasers. Why use the gun? Who was in danger of gross bodily injury or death? The guy himself? So you kill him?
None of this is new. Cops have been killing blacks, poor whites, and whatever other undesirable minority for as long as they have been around. But now we have it on video. And the response remains: shrug.
Thug cops are being replaced by warrior cops and the end result is: nothing changes. And the few good cops that believe what they do is about protecting everyone, even the law breakers, remain an endangered minority.
It would be cheaper for everyone if police were properly trained so that we could avoid things that lead to massive lawsuits.
There, I made the argument everyone can agree with. Money matters. The current situation is bad for money. Do it for the money.
The dead poor will sort themselves out.
Wednesday, August 28, 2013
Thursday, August 22, 2013
Intoxilyzer 8000 a Worthless Piece of Junk
First, a caveat.
A really, really depressing caveat. Bad news first.
1987, Supreme Court of Nebraska declares results of Intoxilyzer 4011AS inadmissible because they rely on blood/breath ratio of 2100:1.
1990, Colorado Department of Health and the New Hampshire Division of Human Services send separate letters, unrelated to each other, to CMI telling them that the Intoxilyzer 5000 has lost credibility with the law enforcement community and has a ton of problems. No one seems to care.
2000, Nebraska backtracks.
2004, Indiana Court of Appeals throws out a result because of a tongue ring.
2005, Indiana Supremes say, forget that!
There are other such cases (particularly an amazing battle between trial judges in New Jersey and their seriously fucked up Supreme Court).
The landscape of DUI law is postapocalyptic, with massive, steel towers draped in a twisted version of the American flag. Nothing good lives here. Even in Ohio, where State v. Homan
89 Ohio St.3d 421, 732 N.E.2d 952 (2000) remained good law right up until it was overruled by the legislature.
But Good News arrives once again from the armpit state:
Retired Municipal Judge Teresa Liston (may she live forever) found in the Marrietta Municipal Courthouse (Ohio) that the Intoxilyzer 8000 is based on science too unreliable to be used in a court of law.
OH YEAH BABY
Articles are here and here
First person to get a copy of that order wins.
A really, really depressing caveat. Bad news first.
1987, Supreme Court of Nebraska declares results of Intoxilyzer 4011AS inadmissible because they rely on blood/breath ratio of 2100:1.
1990, Colorado Department of Health and the New Hampshire Division of Human Services send separate letters, unrelated to each other, to CMI telling them that the Intoxilyzer 5000 has lost credibility with the law enforcement community and has a ton of problems. No one seems to care.
2000, Nebraska backtracks.
2004, Indiana Court of Appeals throws out a result because of a tongue ring.
2005, Indiana Supremes say, forget that!
There are other such cases (particularly an amazing battle between trial judges in New Jersey and their seriously fucked up Supreme Court).
The landscape of DUI law is postapocalyptic, with massive, steel towers draped in a twisted version of the American flag. Nothing good lives here. Even in Ohio, where State v. Homan
89 Ohio St.3d 421, 732 N.E.2d 952 (2000) remained good law right up until it was overruled by the legislature.
But Good News arrives once again from the armpit state:
Retired Municipal Judge Teresa Liston (may she live forever) found in the Marrietta Municipal Courthouse (Ohio) that the Intoxilyzer 8000 is based on science too unreliable to be used in a court of law.
OH YEAH BABY
Articles are here and here
First person to get a copy of that order wins.
Tuesday, August 20, 2013
Technicalities
A public defender, like an ambulance chaser, hunts for technicalities in cases.
"Technicalities" is American for constitutional rights having been infringed.
You may recall a film starring the great Clint Eastwood in which he railed against the injustice of his prey being released on technicalities. Dirty Harry, who I had assumed was no rookie, apparently had no idea that he had to follow the law.
The great state of Idaho is famous for technicalities. It spent its first 20 years without criminal laws, only discovered when an enterprising attorney pointed out they had forgotten to take the territory's laws and get them passed as a state.
Recently, the state had to vote in a change to its Constitution to allow the counties to control misdemeanor supervised probation, because well, our Constitution said they couldn't. I'm too lazy to find something showing it passed, but here was the issue: http://www.nlada.net/jseri/blog/idahos-misdemeanor-probation-systems-may-violate-state-constitution
As you might imagine, there are a lot more easter eggs in Idaho law.
Idaho does NOT provide an attorney at one's first appearance before a neutral magistrate, the only time one's bond must be reviewed (at all other hearings, you have to get it on the docket, and you need to give seven days notice).
Ah! You say. But no one ever said the 6th gives you an attorney at that hearing
You mean that SCOTUS never did, because they're nuts. I've literally heard a judge ask a woman to provide reasons to lower her bond covered by Idaho Criminal Rule 46. She started to cry.
Idaho's Supreme Court has declared a right to appointed counsel in all probation cases under.. well they said that the 6th requires that you be allowed retained counsel (?) and Idaho has a statute giving counsel and so... ?? Counsel. Bam. Does the 6th actually apply to the work the appointed attorney does meaning that counsel has to do a good job? Unknown. (state v. young, look it up).
So we have counsel, kind of. But we don't have him when we're placed in the jail. The first time we will see a judge again, unless a hearing is scheduled, will be one to two months out. Yup.
Then it gets really tricky. You see, judges don't get to just operate in a vacuum. For crimes, judges get complaints and issues warrants. For probation violations at the misdemeanor level---judges get motions for warrants ex parte and act on them.
Oh yes.
There is no law allowing for this procedure. District Court judges don't do it, they hold the hearing and if you don't show you'll get the warrant.
Best of all, in supervised probation cases, the PO goes to the prosecutor, gets a form motion, and takes it to the judge. Did you know filing pleadings is something only a lawyer can do? No? Apparently, neither does misdemeanor probation.
So this is where we get back to technicalities. I get a case and see all of these issues. I file the appropriate motions and get a hearing. The state says, huh, how about your guy do X. And X is perfectly reasonable considering the client did in fact violate his probation. And because frankly, the remedy for all of the above is unknown, and may very well be totally useless.
That to me is a technicality. The huge issues which, when you realize you'll have to ask for a remedy and that you'll never get the court to agree to simply dismiss, they stop seeming all that useful if you can get the state to be reasonable.
But it's just a matter of time before some pissant prosecutor blows off the argument. And things can finally get interesting.
"Technicalities" is American for constitutional rights having been infringed.
You may recall a film starring the great Clint Eastwood in which he railed against the injustice of his prey being released on technicalities. Dirty Harry, who I had assumed was no rookie, apparently had no idea that he had to follow the law.
The great state of Idaho is famous for technicalities. It spent its first 20 years without criminal laws, only discovered when an enterprising attorney pointed out they had forgotten to take the territory's laws and get them passed as a state.
Recently, the state had to vote in a change to its Constitution to allow the counties to control misdemeanor supervised probation, because well, our Constitution said they couldn't. I'm too lazy to find something showing it passed, but here was the issue: http://www.nlada.net/jseri/blog/idahos-misdemeanor-probation-systems-may-violate-state-constitution
As you might imagine, there are a lot more easter eggs in Idaho law.
Idaho does NOT provide an attorney at one's first appearance before a neutral magistrate, the only time one's bond must be reviewed (at all other hearings, you have to get it on the docket, and you need to give seven days notice).
Ah! You say. But no one ever said the 6th gives you an attorney at that hearing
You mean that SCOTUS never did, because they're nuts. I've literally heard a judge ask a woman to provide reasons to lower her bond covered by Idaho Criminal Rule 46. She started to cry.
Idaho's Supreme Court has declared a right to appointed counsel in all probation cases under.. well they said that the 6th requires that you be allowed retained counsel (?) and Idaho has a statute giving counsel and so... ?? Counsel. Bam. Does the 6th actually apply to the work the appointed attorney does meaning that counsel has to do a good job? Unknown. (state v. young, look it up).
So we have counsel, kind of. But we don't have him when we're placed in the jail. The first time we will see a judge again, unless a hearing is scheduled, will be one to two months out. Yup.
Then it gets really tricky. You see, judges don't get to just operate in a vacuum. For crimes, judges get complaints and issues warrants. For probation violations at the misdemeanor level---judges get motions for warrants ex parte and act on them.
Oh yes.
There is no law allowing for this procedure. District Court judges don't do it, they hold the hearing and if you don't show you'll get the warrant.
Best of all, in supervised probation cases, the PO goes to the prosecutor, gets a form motion, and takes it to the judge. Did you know filing pleadings is something only a lawyer can do? No? Apparently, neither does misdemeanor probation.
So this is where we get back to technicalities. I get a case and see all of these issues. I file the appropriate motions and get a hearing. The state says, huh, how about your guy do X. And X is perfectly reasonable considering the client did in fact violate his probation. And because frankly, the remedy for all of the above is unknown, and may very well be totally useless.
That to me is a technicality. The huge issues which, when you realize you'll have to ask for a remedy and that you'll never get the court to agree to simply dismiss, they stop seeming all that useful if you can get the state to be reasonable.
But it's just a matter of time before some pissant prosecutor blows off the argument. And things can finally get interesting.
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