Monday, July 21, 2014

Friend of Alleged Marathon Bomber Convicted of Obstruction, Conspiracy

Evidence photo, FBI
Almost a year ago, a federal grand jury indicted two friends of Boston Marathon bombing defendant Dzhokhar Tsarnaev. The charges related to their alleged attempt to dispose of evidence incriminating their chum. (See New Charges in the Boston Marathon Bombing Case.) The verdict for one of the two young men, Azamat Tazhayakov, is in: guilty of obstruction of justice and conspiracy.

Covering Up

Under the prosecution’s theory, another friend, Dias Kadyrbayev, texted Dzhokhar Tsarnaev three days after the tragedy, on April 18, 2013. Kadyrbayev wrote that the person depicted in a recently released police photo resembled Tsarnaev. Tsarnaev responded with “Better not text me my friend” and “LOL.” (“Text messages show marathon bombing suspect . . . .”) Prosecutors also claim that Tsarnaev wrote, “If yu want yu can go to my room and take what’s thereJ but ight bro Salam aleikum.” They say that Kadyrbayev showed this message to Tazhayakov.

According to the prosecution, the two young men then went to their friend’s University of Massachusetts-Dartmouth dorm room. There they removed several items, including a laptop and a backpack that contained fireworks, a jar of Vaseline, and other items. Kadyrbayev subsequently threw the backpack in a dumpster. (Federal agents eventually found the pack in a landfill.)

Inactive Participant?

The official story holds that Kadyrbayev was more active than Tazhayakov in the post-bombing course of events. Tazhayakovdefense, which didn’t call any witnesses, argued that it was Kadyrbayev who disposed of the evidence. 

But under the law, it was enough for Tazhayakov to agree to and go along with the plan without being the primary actor. (See Conspiracy: Laws and Penalties and What is criminal obstruction?) Federal jurors apparently didn’t accept the defense’s version, that Tazhayakov did nothing more than sit idly, watching a movie with another friend in Tsarnaev’s room while Kadyrbayev took the backpack. The jury did, however, acquit Tazhayakov in relation to the removed laptop. (“Azamat Tazhayakov . . . guilty of impeding probe.”)

Tazhayakov, 19 at the time of his alleged crimes, faces a maximum 20-year prison sentence at his October 16 sentencing. Kadyrbayev is in line for an early September trial date, while Robel Phillipos—the other friend who may have watched that movie with Tazhayakov—is slated for late September. The federal government has charged Phillipos with lying to federal investigators.

Tsarnaev’s trial is scheduled for November. He faces the death penalty.

Friday, July 18, 2014

NYPD Chokehold Death: What’s Reasonable?

Here’s one way of describing what happened to New York African American Eric Garner:

On Thursday, July 17, 2014 at approximately 1648 hours, police observed a 43-year-old male selling untaxed cigarettes in front of 202 Bay Street within the confines of the 120 Precinct. Upon attempting to arrest the suspect for the violation, the suspect went into cardiac arrest and was transported by EMS to Richmond University Medical Center where he was pronounced DOA.

That, with the nice little acronym to indicate a person’s passing, is the New York Police Department’s version. The witness version is that Garner, an approximately 400-pound man who leaves behind a wife and six children, had done nothing other than try to break up a fight. Police officers then choked him, took him to the ground, slammed his head into the sidewalk, and ultimately killed him.

Viewers can fill in some of the gaps in these accounts with a look at the cellphone video of the tragedy. You can see that Garner, who was no stranger to arrest, wanted nothing to do with the police. You can see that he was defiant, but not violent. You can see an officer escalate the confrontation by employing a chokehold on him, and you can hear Garner plea that he can’t breathe. (The NYPD Patrol Guide explicitly prohibits chokeholds.)

Of course, the mayor and district attorney are saying all the right things at this point. But whatever remedial action comes down, the point is that incidents like these keep happening in this country.

How much force police officers can use to make an arrest depends on what’s reasonable under the circumstances. But what’s reasonable is a construct of the courts, not a matter of practical experience. Judges throughout the country—not to mention those sitting on the highest court—seemingly can’t bring themselves to set their own standards. As the Supreme Court showed in this year’s submissive ruling on car chases, each and every benefit of every single doubt goes to the cops.

Relying on the courts for justice—much less policy change—is a dicey proposition. So, people should continue to let organizations like #myNYPD know what they think. Let’s hope that more than a few isolated politicians take note.

Wednesday, July 16, 2014

Child Endangerment or a Nice Day at the Park? Something in Between?

Mainstream news is a friendly place where morbid curiosity and sanctimony can pose as legitimate social concern, particularly when the subject is child welfare. Thus, we get headlines like: “Father exchanged nude photos online as 22-month-old son died in hot car.”

Purveyors of such sensationalism may try to defend themselves by appeal to deterrence. But there’s probably about as much evidence that the death penalty discourages violence as there is that pumping stories of child-care tragedies makes kids safer. In fact, if anything, this kind of stuff may produce more harm than good.

Playing in the Park

Take the story of Debra Harrell, whom police arrested a couple weeks ago for leaving her daughter unattended at a public park in South Carolina. Harrell worked at a North Augusta McDonald’s; she didn’t have money for summer day care, so she would bring her nine-year-old to work. There, her daughter would spend the day playing on a laptop with the available wireless access. (“Mom Jailed Because She Let Her 9-Year-Old Daughter Play in the Park Unsupervised.”)

But, according to coverage, someone robbed or burgled the Harrell home. With the laptop now gone, Daughter reportedly asked Mother whether she could play at the park rather than twiddle her thumbs in a fast-food restaurant. So, on two occasions, Harrell left the girl at a nice public park, with a cellphone. (You can experience both the park and the righteousness in this news clip.) Sure enough, someone caught wind that the girl was unattended and called the cops.

Unreasonable Risk?

Harrell may not have made the soundest parenting decision, though someone in her personal situation is probably better suited to evaluate the viability of the child-care options. But even if she was negligent, the question is whether she’s worthy of a felony conviction that carries up to ten years in prison. Actually, the more pressing question may be whether her daughter is better off in the custody of the Department of Social Services, because, while her mother was in jail, that’s where she was. (It’s where she may still be.)

The charge Harrell faces is unlawful conduct toward a child. In relevant part, the offense applies to any parent who “wilfully abandon[s] the child” or “place[s] the child at unreasonable risk of harm affecting the child's life, physical or mental health, or safety.” (S.C. Code Ann. § 63-5-70; see Child Endangerment Laws.) So, at issue is whether Harrell legitimately abandoned her daughter, and whether she created a risk that’s significantly more offensive than, say, letting one’s child play in the front yard.

Looking Inward

An odd brand of hypervigilance about crime-and-punishment issues—child safety among them—can lead to nasty results like Debra Harrell’s incarceration. Outrage makes for terrible policy, whereby throwing the book takes priority over introspection, and perhaps even the ultimate good of children. Wouldn’t a more productive conversation center on the availability of public child care for indigent parents? And wouldn’t it be better for everyone if kids weren’t wrenched from parents who made isolated mistakes?

Apart from leaving her daughter at a park so that she could financially support her, Debra Harrell better be a pretty terrible mother. Otherwise, it would be hard to believe that there’s any kind of justice going on here.

Friday, July 11, 2014

Teen-Sexting Prosecution: Police Get Warrant to Photograph Minor’s Erect Penis

The State of Virginia wants—or wanted to—photograph a 17-year-old’s phallus. Manassas City police officers obtained a warrant authorizing them to take pictures of Trey Sims’s erect penis  so they could match it to images the boy allegedly sent his girlfriend.[1] Sims’s lawyers report that officers threatened to inject him with a chemical substance in order to induce the requisite arousal.

Before cameras started flashing, however, someone apparently injected a modicum of reason into the controversial case: The police department decided not to execute the warrant and to let it expire. But what hasn’t expired is the case against Sims, which could leave him with a felony record and force him to register as a sex offender. (“Police Drop Plan to Take Graphic Photos…”)

Sextual Interpretation

“Sexting” is the transmission of sexually explicit photographs or video by cellphone. In typical cases, the images people send are of themselves. Considering that it’s perhaps not the most prudent move to create and publish an intimate photograph of oneself in this digital age, it’s no surprise that sexting is prevalent among teens. (To be fair, plenty of adults get in on the act, including public figures.)  

In states with an appreciation for what it is to be an adolescent, there are laws dedicated to teen sexting. In others like Virginia, though, the possession and distribution of nude photographs involving pre-adult teenagers falls under the child-pornography rubric. That means that prosecutors with iffy moral compasses are free to treat hormonal if not insecure minors the way they would legitimate child predators. Although teen sexters under 18 generally get the benefit of the juvenile court process, they may nevertheless be left with stern punishment and lasting stigma.

Disease vs. Cure

Media accounts of the Sims case don’t provide much reliable detail, but they indicate that the boys then-15-year-old girlfriend sexted him, and that he responded in kind. The girl’s mother discovered the exchange and contacted the police. Prosecutors then charged Sims with—yes—manufacturing and distributing child pornography. They did not charge the girl. (“Va. Teen Could Be Jailed for ‘Sexting’ Girlfriend.”)

Sims’s aunt and legal guardian discloses that the juvenile defendant rejected a probation offer that would have kept him away from any cellphone and off the Internet for a year. (To the average teen, this may be a fate worse than prison.) Sims is due back in court next month, at which point a judge could set the matter for trial.

Whatever happens with the case, its absurd but unfulfilled warrant brings worthy attention back to the teen-sexting problem—or, the teen-sexting problems. As much as the exchange of such compromising material may in some sense endanger these youngsters, the adults who would embarrass, imprison, and ostracize them are the ones truly deserving of scorn.

[1] Though Sims is a juvenile, his name is part of the public record and he and his guardian have voluntarily appeared on camera.

Wednesday, July 9, 2014

Bieber: Misdemeanor Vandalism for Egg-Throwing

Photo: Kevin Aranibar, Kerosene Photography
Allegations of egg-throwing have never caused such consternation.

On Wednesday, the Los Angeles County District Attorney’s Office revealed that it had charged pop singer and alleged dabbler-in-crime Justin Bieber with misdemeanor vandalism for a January incident. Later in the day, reports emerged that Bieber would plead no contest to the charge in exchange for no jail time, two years of probation, and community service.

Apparently, it took six months of investigation and negotiation to get to this result. Though the damage to the neighbor’s house supposedly exceeded $15,000, Bieber was able to settle the case for a charge that doesn’t even require the defendant to appear in court for arraignment.

In the underlying January 9 incident, Bieber allegedly “launched an all out egg assault” on his neighbor’s house. Yolks and epithets were reportedly flying as the call went into the police. If the photos and video are any indication, the no-contest plea is a good result for the cheeky deponent.

Misdemeanor vandalism in California applies to someone who “maliciously” damages another’s property. The maximum punishment is a year in jail and a fine. (Cal. Penal Code § 594(b)(2).) The crime becomes a potential felony when the amount of the damage reaches $400. So, you can bet that part of what appears to be a favorable deal is Bieber paying the literal price for his transgression.

Update: According to CNN, as a result of the plea deal, an L.A. judge sentenced Bieber to two years' probation, 12 weeks of anger management, five days of community labor, and $80,900 in restitution. Bieber also has to stay 100 yards or more away from the now former neighbor's family.

Thursday, July 3, 2014

Fighting Judge Back on the Bench

Remember that Florida judge who challenged a public defender to a fight? The one who bellowed from the bench, “If you wanna fight, let's go out back and I'll just beat your ass!”?

For those who forgot or missed the story, Judge John Murphy of Brevard County directed these words at public defender Andrew Weinstock, who had defiantly refused to waive his client’s right to a speedy trial. Murphy then accompanied Weinstock out of the courtroom and into the hallway, where he tried to make good on the ass-beating promise. (Watch here.)

Before the skirmish, Murphy had ordered Weinstock to “sit down” and thereby abandon his client; after, the judge continued the hearing that was in progress even though there was no lawyer to represent the defendant.

Less than a month after the disgraceful—if not criminal—conduct, Judge Murphy was back at work. He’s now handling civil rather than criminal cases. Apparently, a few weeks’ paid leave, some anger-management treatment, and a public apology set everything right. No need to bother beyond that.

Wednesday, July 2, 2014

Another Swing for Barry Bonds

U.S. Marshall Service
Much in the way that he never officially retired from baseball, Barry Bonds refuses to quit his fight against federal prosecutors.  In September of 2013, a three-judge panel from the Ninth Circuit Court of Appeals affirmed his 2011 conviction for obstruction of justice for statements he made in 2003. Bonds has already served his sentence in the case (30 days’ home confinement), but he hasn’t given up on getting the felony conviction overturned. The latest development is the Ninth Circuit’s decision to reconsider the case, this time with a committee of 11 judges.

At issue is whether his long-winded ramble of a response to a prosecutor’s question was a crime. More precisely, the issue is whether it can be a criminal offense for a witness who is under oath to respond indirectly to a question, but to ultimately answer it. Whether Bonds committed perjury isn’t on the table, because the prosecution couldn’t convince the jury to convict on that basis. (The jurors hung on the perjury charges against the former slugger.)

Here’s the first part of the testimony in question:

Question: Did Greg ever give you anything that required a syringe to inject yourself with?

Answer: I’ve only had one doctor touch me. And that’s my only personal doctor. Greg, like I said, we don’t get into each others’ personal lives. We’re friends, but I don’t—we don’t sit around and talk baseball, because he knows I don’t want—don’t come to my house talking baseball. If you want to come to my house and talk about fishing, some other stuff, we’ll be good friends, you come around talking about baseball, you go on. I don’t talk about his business. You know what I mean?

Question: Right.

Answer: That’s what keeps our friendship. You know, I am sorry, but that—you know, that—I was a celebrity child, not just in baseball by my own instincts. I became a celebrity child with a famous father. I just don’t get into other people’s business because of my father’s situation, you see.

And the second:

Question: And, again, I guess we’ve covered this, but—did [Anderson] ever give you anything that he told you had to be taken with a needle or syringe?

Answer: Greg wouldn’t do that. He knows I’m against that stuff. So, he would never come up to me—he would never jeopardize our friendship like that.

Question: Okay. So, just so I’m clear, the answer is no to that, he never gave you anything like that?
Answer: Right.

The decision to reconsider the case comes by way of a majority vote by the Ninth Circuit’s 29 judges. In September of this year, 11 of those judges will hear argument from the prosecution and defense. A loss would be quite embarrassing for the federal government, who had spent an estimated $6 million on the case as of three years ago.