Wednesday, July 30, 2014

San Antonio Police Beat Up the Wrong Guy

Excessive force. A euphemism for what goes on in this country far too often: Police beating the crud out of, if not killing, people they encounter in the line of duty. (See NYPD Chokehold Death: What’s Reasonable?)
Statistics are out there, like those provided by the CATO Institute, but it’s essentially impossible to know the scope of unjustified police violence. A recent case in San Antonio underscores this point.

Mistaken Identity

Normally, police officers injuring someone suspected of leading them on a high-speed chase isn’t too noteworthy. Heck, the Supreme Court recently gave pursuing officers virtually free reign to shoot away, at least when they can fashion an argument that the suspect was endangering the public. (See Supreme Court: Don’t Stop Shooting.)

But the whooping experienced by Roger Carlos on May 20 in San Antonio is different. For one, the car chase was over by the time officers caught up to the man; he was on foot. For another, he wasn’t the guy they had been chasing, a man with an outstanding felony warrant named Josue Gonzalez.

On the afternoon in question, Carlos was taking photos of a building set to house his wife’s medical practice. That happened to be in the general area where Gonzalez had 
reportedly abandoned the vehicle he had just used to flee from the police.

As usual, we don’t know exactly what happened between Carlos and law enforcement. He says three officers, one a member of an undercover drug task force and the other two SWAT members, approached him and simply began to beat him silly. He says that he complied with their instructions; they say he didn’t. All that’s clear is that the officers mistook Carlos for Gonzalez, and that they busted him up pretty good. He suffered a big gash above his eye, a broken tooth, and severe head swelling. (You can see some photos, and an account of the incident at

No Problem?

The San Antonio Police Department is apparently investigating the incident, because, you know, it takes a really long time to determine whether officers did something wrong in brutalizing an innocent person minding his own business. For his part, SAPD Police Chief William McManus says, “From the report that I've read, from the photo that I saw and from [a reporter’s] description, I've not seen anything at this point that would indicate to me that anything out of order happened.”

What do they say on Twitter? Good job, good effort?

Of course, the racial component to this case is impossible to ignore. But, naively putting that aside, it’s worth asking whether it would have been okay for these bellicose officers to treat Gonzalez similarly to Carlos. If they had actually gotten their man, would it have been okay for them to beat him up before taking him in?

Many of us say no. The problem, though, is that we never would have heard about it had it happened.

Thursday, July 24, 2014

Arizona Case Offers the Latest in Execution Ethics

Those who are interested have long known that the American state governments who still execute people don’t care about the efficacy of the death penalty as a deterrent. We can now—once and for all—strip away another layer in the death-penalty debate: The assurance that governments will employ humane execution processes. 

(Speaking of “humane” execution, count The Onion among those who appreciate the oxymoron: Ohio Replaces Lethal Injection With Humane New Head-Ripping-Off Machine.)

Ohio and Oklahoma have already flubbed executions this year, one lasting 26 minutes and the other 43 and culminating in a heart attack. Another Oklahoma execution resulted in these last words from Michael Lee Wilson: “I feel my whole body burning.” Then, there was Tennessee’s reinstitution of the electric chair. And on Wednesday night, Arizona oversaw a killing that took two hours.

Yes, Joseph Wood died an hour and 57 minutes after the government injected him with what were supposed to be lethal substances. So much time passed that Wood’s lawyers had the opportunity to file an emergency appeal decrying the proceeding and asking the courts to stop it. The pleading read in part, “He has been gasping and snorting for more than an hour. He is still alive.” Of course, the Department of Corrections version is that Wood was merely experiencing “sonorous respiration, or snoring.” (“Two-hour Arizona execution sparks calls for rethink on death penalty.”)

This gasping for air was curiously similar to what Dennis McGuire, the man Ohio executed on January 16, experienced. Actually, the similarity ceases to be quite so curious when one learns that Arizona saw fit to use the same injection substances (midazolam and hydromorphone) that worked so well for the Buckeye State.

For her part, Governor Jan Brewer is ordering a full review of Arizona’s process for executing prisoners. She has assured the public that Wood “died in a lawful manner” and that “he did not suffer.” (“Jan Brewer Orders Full Review Of Drawn-Out Execution.”) But, for some strange reason, she seems intent on appearing to want to make the state’s execution methods at least moderately less horrific.

Maybe we should applaud Brewer’s token efforts. Execute first, ask questions later. Isn’t that the American way?

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.