Wednesday, November 19, 2014

Judge Offers Unique Perspective on "Innocent" Guilty Pleas

As anyone wrapped up in Serial can attest, criminal trials involving potentially innocent defendants make for great theatre. Even in audio-only format, the mystery is compelling, though—or perhaps precisely because—the outcome may be tragic.

But, as federal judge Jed Rakoff explains in the November 20 issue of The New York Review of Books, this kind of mystery doesnt always play out in court. Forget potentially innocent defendantsactually innocent ones sometimes plead guilty. (“Why Innocent People Plead Guilty.”)

We’ve previously discussed false confessions in this space. Though at first befuddling, the concept of someone wrongly admitting guilt soon after arrest begins to make sense. The tremendous psychological ploys known to law enforcement can get all kinds of information out of suspects. And sometimes that information isn’t reliable.

But that’s in the context of the interrogation room. Outside of that intimidating setting, one might think that an innocent defendant would know not to admit culpability. The opportunity to confer with a lawyer, and to reflect on the matter for days or weeks would seem to inevitably prevent a “false positive.”  

As Judge Rakoff details, though, sentencing laws give prosecutors all the power. Particularly in federal court, government attorneys can shape sentences with their charging decisions, have vastly more information than the defense in the early stages of a case, and often have no one to answer to. This positions them quite nicely, where they can offer take-it-or-leave-it deals with quick return dates. Leave it, and if you can later get any kind of deal at all, it’ll probably be much worse. Or you can go to trial.


Indeed, in 2012, the average sentence for federal narcotics defendants who entered into any kind of plea bargain was five years and four months, while the average sentence for defendants who went to trial was sixteen years.

Given those numbers, it’s not hard to see why a defendant might decide to play it safe. 

Many factors contribute to the false-guilty-plea problem. Rakoff explains them quite well, provides numbers, and even offers a solution (though admittedly not a cure-all). His perspective—formed by combined experience as a prosecutor, defense attorney, and judge—is certainly worth the read.

Tuesday, November 11, 2014

FBI’s Impersonation of Journalist Stirs Familiar Sort of Debate

Doomsday scenarios provide for the trickiest ethical debates. We’ve all seen the following challenge: “Well, would you oppose torture even if the police were trying to force the location of a ticking bomb out of someone who knew it?” One who denounces “enhanced interrogation” might refuse the premise, contending that the hypothetical has and will never come to pass. Or the opponent might argue that we’ve no reason to believe torture produces reliable information. Regardless of the words said, though, there’s little the opposer can do to convince the supporter. And vice versa.

But what if the issue weren’t torture, and instead law-enforcement members impersonating journalists? Perfectly fine in the name of safety? Absolutely reprehensible in all circumstances?

This is the debate playing out after the recent revelation that, in 2007, an FBI agent posed as an Associated Press reporter in order to nab a suspect. With apparent success.

“Here’s the Plan”

Timberline High School in Lacey, Washington had received several anonymous bomb threats. Local police sought out the FBI for help. The FBI knew just what to do: Play on the culprit’s vanity.

Agents didn’t devise the plan on a whim. Instead, as The New York Times reports, they consulted behavioral scientists working for the FBI. The scientists suspected narcissism; thus came the plot to engage with—and thereby obtain the location of—the person making those threats.

The agents gathered a search warrant allowing them to send an email with a link. That link, when clicked on, would reveal the threat-maker’s location. An AP-posing agent then engaged the anonymous suspect by email, ultimately sending him the link, to a fake article: “Technology savvy student holds Timberline High School hostage.” A click later and the agents had their man—or boy. A 10th-grader.

Demanding Circumstances

News agencies reacted to this story with outrage. The Times ran an editorial criticizing the FBI’s behavior. The Associated Press struck a similar tone, even seeking from Attorney General Eric Holder “immediate assurance that the Department [of Justice] will never again misrepresent itself as the AP.” On Monday, the AP went a bit further, demanding to hear that the FBI will “never again impersonate a member of the news media.”

FBI Director James B. Comey has called the news-reporter technique “unusual” and rarely appropriate. He also indicated there would be more exacting inner-agency review before agents could employ such a method today. But he stood by it.

“It’s Different”

Officers have always staged all kinds of ruses to catch suspects. An undercover cop tries to buy drugs from an apparent street seller. Or poses as a prostitute. The possibilities border on endless.

But everyone seems to agree—at least to some extent—that posturing as a journalist is different. A Reuters opinion piece nicely frames the anti-impersonation position. Though there may be other concerns (including safety for real reporters believed to be fakes), it seems the ultimate issue is a potentially chilling effect on speech. News sources who wonder whether reporters are government agents won’t talk. Without talking sources, journalists can’t do what they do so well—that is, expose closely guarded truth.

Of course, that position runs smack into the ticking-time-bomb challenge. And, if the Timberline High School incident is any indication, at least one counterargument is out the window. No one can say that impersonating journalists is inherently ineffective.

Monday, November 10, 2014

California’s Prop 47 Signals Serious Attitude Change

The “Safe Neighborhoods and Schools Act.” You might think that would be the title of a law-and-order initiative designed to stamp out a perceived criminal-favoring shortcoming in the justice system.

Would you ever be wrong.

The law is California’s Proposition 47, which passed by a convincing 58-42% margin in last week’s election. It represents a rebuke of the pro-incarceration movement, which has been going strong in the Golden State at least since the days of Proposition 184.

A Different Law

Prop 184 was the momentous “Three Strikes” initiative, approved by 72% of California voters in 1994. That law—with an even more commanding title: “Career Criminal Punishment Act”—led in part to some really big sentences for some seemingly small offenses. In 2003, for example, the U.S. Supreme Court upheld the sentence of a man who, pursuant to the CCPA, got 25 years to life in prison for stealing three golf clubs. (Ewing v. California, 538 U.S. 11 (2003); also see Lockyer v. Andrade, 538 U.S. 63 (2003) and “The Meaning of ‘Cruel and Unusual Punishment.’”)

Prop 47 couldn’t be more different. It makes several nonviolent crimes misdemeanors—except in cases where the defendant has a prior conviction for a “serious” or “violent” offense, or a past conviction that carries sex-offender registration. For many offenders already convicted of these rebranded misdemeanors, resentencing and criminal-record reclassification are available.

The measure is supposed to save buckets of money by reducing jail and prison populations. Those savings are to go to treatment and diversion programs, public schools, and centers that help victims of crime.

Thumbs Up?

As the California Budget Project reports, Prop 47 applies to seven categories of crimes, including check fraud, petty theft, receiving stolen property, and drug possession. It generally reduces these offenses from “wobblers” (crimes that can be charged as misdemeanors or felonies) to misdemeanors.

As is true whenever 42% of any group gives something the thumbs-down, you don’t have to look far for criticism. Some believe the measure errs too far on the side of the carrot, at the expense of the stick. For example, as the LA Times reports, “District attorneys who used to threaten drug offenders with felony convictions to force them into rehabilitation programs no longer have that as an option.” And lack of treatment obviously tends to increase recidivism.

The California Legislative Analyst’s Office estimates that Prop 47 will mean misdemeanor rather than felony convictions for 40,000 defendants per year. The Office also predicts that the measure could result in savings “in the low hundreds of millions of dollars annually.” The idea is for those savings to be reinvested in a way that keeps many from re-offending, and prevents others from ever crossing the justice-system threshold.

Such are the aspirations of supporters of the Safe Neighborhoods and Schools Act. But, even if the initiative falls short of its promise, its passage signals a serious change in attitude. Such a change, in fact, that people ranging from Jay-Z to Newt Gingrich now find themselves on the same side of the criminal-justice coin.

Tuesday, November 4, 2014

Texas Jury Acquits ‘Cop Watcher’ Who Filmed Police

Wikipedia describes Antonio Buehler as “an American activist known for his work on police accountability and his defense of the constitutional right to photograph, film and document the police.” That activism was on display during, if not driven by, a 2012 New Year’s confrontation with the authorities. The incident led to a grand jury indictment and a four-day trial ending in last Wednesday’s acquittal.

Going to the Tape

In the early morning of New Year’s Day 2012 in Austin, Texas, Buehler was on designated-driver duty. The war veteran had pulled over at a gas station to fill up. He and his passenger noticed nearby police officers in the midst of a DUI stop. To Buehler, the officers were being unnecessarily rough with the passenger.

Video footage shows the officers pulling the high-heeled apparent partygoer from the vehicle to the ground, then holding her arms above her head, behind her back. In the course of this display, Buehler apparently began to document the incident with his cellphone. He also challenged the arresting officers. After approaching, one of them seemingly tried to get Buehler’s hands behind his back, then took him, too, to the ground.

The officer who arrested Buehler claimed that the alleged interloper had spat in his face. Local prosecutors even convened a grand jury to consider the defiant encounter.

But, as will occasionally happen, the grand jury declined to indict on any felonies. Most notably, it rejected the spitting charge, a third-degree felony called “Harassment of Public Servant.” (Tex. Penal Code Ann. § 22.11(a)(2).) The grand jury instead indicted Buehler on four counts of misdemeanor failure to obey a lawful order, which carries only a fine that caps out at $500. Only one of the counts had to do with the New Year’s incident; the three others related to distinct events apparently also involving “cop watching.”

The failure-to-obey charges come from an ordinance requiring that one “comply with an order of a peace officer” and not obstruct or interfere “with an officer engaged in his official duties.” (Travis County District Attorney press release.) In that regard, the January 1, 2012 case seemed to boil down to whether the arresting officer’s order that Buehler place his hands behind his back was “lawful”—that is, justified by Buehler’s behavior. (“Buehler acquitted of failing to comply with officer’s order.”)

Day(s) in Court

Late last month, the 2012 New Year’s confrontation finally went to trial. After a four-day proceeding in which an Austin police officer surprisingly served as a witness for the defense, a jury acquitted Buehler. In the course of testifying for the prosecution, the arresting officer admitted that the infamous “spit” was actually “spittle,” a byproduct of Buehler talking.

Despite the acquittal, Buehler’s legal travails persist. As he is quick to remind, he still faces three other charges. And he has a pending civil suit against the Austin Police Department and other officials.

In July, a federal magistrate judge considered a motion to dismiss the civil suit. He tossed Buehler’s excessive force and malicious prosecution claims. But, in allowing other parts of the suit to proceed, Judge Mark Lane specifically observed that citizens “have the right to record officers in public places as they perform their official duties … .” (“Federal judge upholds activist Antonio Buehler’s right to film officers.”)

As even the most reluctant police officials will acknowledge, filming the police is typically legal. What’s not legal, however, is to interfere with them. And identifying the precise point at which filming and associated behavior become sanctionable interference isn’t always easy.

If anyone is bound to pinpoint it, though, it’s Antonio Buehler.

Friday, October 31, 2014

Maine Nurse Raises Questions About Legality of Ebola Quarantines

Update: On Friday, a Maine judge found that Kaci Hickox did not display Ebola symptoms and was not infectious. The judge held that the government could no longer confine Hickox to her home, though he required  that she submit to monitoring for symptoms, coordinate travel with health officials, and report any symptoms that arise. The order leaves broader questions about governmental authority to quarantine unanswered.

On Thursday morning in Maine, a 33-year-old nurse and her boyfriend went for a bike ride. Many looked on in horror.

Kaci Hickox had recently returned from Sierra Leone, where she spent a month treating Ebola patients with Doctors Without Borders. On Friday, October 24, screeners at Newark’s Liberty International Airport reportedly determined that she had a fever. Hickox was then whisked away to a local hospital and kept in isolation, before being freed to return home on Monday.

Reports emerged late on Thursday that negotiations between Hickox and state officials about the RN’s liberty had broken down. The compromise would have prevented her from mixing it up with the public but allowed her to get outdoors for a bit of fresh air and exercise. After the breakdown, Governor Paul LePage announced that he would “exercise the full extent of his authority allowable by law,” which begs the perfectly reasonable question: What is the extent of that authority?

The Quarantine Power

Earlier this month, a column by law professor Michael C. Dorf examined the extent of federal and state power to quarantine potential disease carriers. (“Containing Ebola: Quarantine and the Constitution,” Justia.) The article, which deserves a read for its discussion of the constitutional nuances at play, indicates that the states and the federal government have the power to implement quarantines. How they may implement them, though, is the issue of the day.

Dorf discusses the difficulty in choosing a standard by which governments must prove that someone should be quarantined. The ultimate criminal-law standard, for example, falls flat in this context. No one would argue that the government ought to have to establish beyond a reasonable doubt that each and every person to be quarantined actually has the capacity to infect others with Ebola. 

Even if the standard were much lower—say, a preponderance of the evidence—how could officials effectively head off the spread of disease? Dorf:

If even one in a thousand people is likely to pose a risk of infecting the general public with a highly contagious deadly disease, then the government should be able to quarantine all one thousand, even though the probability that any one of them is infected is far below even a preponderance ... .

Fear of the Downside

With the breakdown of talks between Kaci Hickox and health officials, it looks like contemporary courts may have the chance to hash out the issue of power to quarantine.

Hickox would point to her lack of symptoms and the fact that Ebola-infected patients cannot transmit the disease unless they display signs of illness. The state of Maine would counter that she had a fever upon her return from West Africa (Hickox disputes that). It would also stress that you cannot rule out Ebola in the first 21 days after the point of exposure.

What the courts would decide is anyone’s guess. But remember that judges notoriously fear that defendants they release on bail will commit violent crimes. That fear shapes many pretrial release decisions. A similar one may determine the scope of government power to enforce Ebola quarantines.

Tuesday, October 28, 2014

‘Materially False’: Third Friend in Marathon Bombing Investigation Convicted

As Dzhokhar Tsarnaev awaits his January 5 trial, a third young man charged with impeding the investigation into the Boston Marathon bombing stands convicted. In July, a federal jury convicted Azamat Tazhayakov of obstruction of justice and conspiracy. In August, Dias Kadyrbayev pleaded guilty to obstruction and conspiracy. And on Tuesday, jurors found Robel Phillipos guilty of two counts of providing false statements to federal agents over the course of two interviews.

Federal prosecutors convinced a jury that Phillipos, at the time 19, lied to the FBI about his presence in Tsarnaev’s dorm room three days after the April 2013 attack. He reportedly told agents he wasn’t there when Tazhayakov and Kadyrbayev removed potential evidence, but later acknowledged that he had been in the room with them. (“Bombing suspect’s friend convicted.”)

Though not accused of setting out to impede the investigation, Phillipos now faces—at least theoretically—up to 16 years in prison. The relevant statute, 18 U.S.C. § 1001, applies where one “makes any materially false, fictitious, or fraudulent statement or representation” in a matter concerning the federal government. (The defense plans to appeal on the basis that Phillipos’s statements weren’t “material” to the investigation.) The felony carries a fine and, where involving “international or domestic terrorism,” up to eight years in prison. Two convictions make for a 16-year maximum.

Phillipos’s lawyers argued that the young man had been so high on marijuana on the night in question that he couldn’t clearly remember it. And the jury acquitted him of several of the lies that prosecutors alleged. But it ultimately found enough dishonesty to substantiate two counts. 

Phillipos, for now on house arrest and subject to electronic monitoring, is due for sentencing on January 29.

Thursday, October 23, 2014

The Quadriplegic Defendant Who Wasn’t

Social media is (or was) abuzz over the quadriplegic bloke who wasn’t. And why not? Accounts of defendants indefinitely postponing criminal proceedings through feigned physical disability aren’t everyday stuff.

The story comes out of Wales, where a man appears to have taken a page out of the Buster Bluth handbook. The underlying allegation against Alan Knight was that he swindled an elderly neighbor out of something close to $65,000. Prosecutors accused him of claiming to be a caregiver for the man, who suffered from dementia, but really draining the fellow’s savings over the course of three years.

Caught on Tape

Once faced with charges for the alleged theft, Knight reportedly perpetuated a much more impressive fraud. The defendant and his wife asserted that, when pulling down a garage door, he fell backwards and broke his neck. The accident, their story went, left him quadriplegic and at times comatose. Knight even admitted himself to the hospital on two or more occasions when he otherwise would have been in court.

You might assume that the plan fell apart when, you know, doctors determined that the guy wasn’t actually quadriplegic or comatose. But the accused malingerer’s ultimate downfall may have come from—above all else—food shopping.

The authorities acquired what they say is surveillance footage of Knight travelling by car and strolling around in a chain of grocery stores. And, in case he were tempted to mount a “That isn’t me!” defense, they said they had a corresponding record of use of his Tesco Club Card at the stores in question.

Stiff Sentence?

News reports don’t make clear whether Knight incurred additional charges because of the alleged medical act. But they do indicate that he recently pleaded guilty to 19 counts of theft, fraud, and forgery, and that Judge Paul Thomas isn’t leaning toward leniency.

Thomas, exhibiting what might be a bit of United Kingdom tact, observed that “[a]ttempts to make progress have been thwarted by Mr. Knight pretending to be ill.” Thomas went on to remark, “Although a very accomplished and determined actor, he is nothing like in the condition he claims to be, and the conditions he claims to be suffering from are simply non-existent.”