Crime & Federalism

Texas Police Run Over Suspect

You read that correctly.  Check out this video.

Skewed View

The law student author of Nuts and Boalts wrote:

Extern 2 and I walk into the building coming back from lunch and we see the security officers asking some WHITE guy to leave. He keeps arguing with them but is generally moving away from the four or five security officers. He's pretty close to the door when one of the officers shoves him to the ground. At some point in all this he makes gestures as if he's about to punch like clenches his fist, etc. One of the officers says, "Don't punch him buddy or you'll go to jail." Anyway, as soon as the guy got up after the first shove, he gets shoved down again. This time he lands outside the building. He gets up and punches the officer in the face. One of the guards says, "Oh now you're going to jail." And the scuffle ensues. Long story short, officer ended up with a broken nose.

Sadly, this extern didn't seem bothered that officers bullied, beat up, and then goaded a citizen into fighting back.  Instead, he interpreted what he saw solely as a crime.  Four or five officers toss you to the ground - twice.  No problem: the law does not cover government misconduct.  Just another day of government work.

Protecting Their Own

Sometimes prosecutors and trial judges forget that they are not their locale's fiduciary.  After Kevin Roghneen broke a cancer survivor's arm in three places, he was sued.  Of course, the prosecutor did not dismiss the criminal case (even though the prosecutor's duty is to do justice, and not to insulate the city from liability).  The judge also refused to dismiss the case.  His reason:

I think the fact that there is a ten million dollar lawsuit really means that the court should not be dismissing this criminal case.

Wow.  You can read about the case here.

(Hat tip: CrimLaw.)

Deputies Taser Inmate to Death

A video of the murder "terrible incident" is available here.  Criminal charges are forthcoming.

UPDATE: Oops, my bad.

"A Gwinnett County grand jury had decided not to pursue charges in the Taser gun-related death of an inmate at the county jail." 

Sorry for the mistake.  I figured that since most prosecutors can indict a ham sandwich, District Attorney Danny Porter could make a case for, at least, negligent homicide.  But hey, what do I know?

District Attorney Danny Porter provided details of the investigations to a grand jury and that grand jury decided not to pursue an investigation of their own. They, however, chose not to view the videotape taken at the jail.

“They were aware of the tape and the disturbing aspects of it, but chose not to view it,” Porter said. “They chose not to see it and chose not to go any farther."

“For all intents and purposes, this ends my case,” he said.

Judge Noonan Calls Out Lying Police Officer

Judge John T. Noonan is a textbook example of a social conservative who duly applies and interprets the law.  In a decision today, he calls out a police officer for lying.  Scroll down to the emboldened text for the exact wording.

On September 16, 1998, so the affidavit continues, [Jeff Potter of Placer County's marijuana eradication team] searched the trash at Baldwin’s home address. He found “marijuana leaves and stems recently cut from a mature marijuana plant. The marijuana was fresh green and still moist.” He also, he said, had found “marijuana seeds and a hydroponic grow rock. There were also two black 1/2 gallon planting pots commonly used in indoor marijuana grows and four packages of ‘rain drop’ irrigation equipment commonly used in indoor marijuana grows.” He concluded on the basis of his specific training in the investigation of narcotics and his ten years of experience in approximately three hundred narcotics cases that “[t]he items found in the trash inspection reveal an ongoing criminal activity to grow marijuana indoors.” He also concluded that “it is common for persons involved in the cultivation of marijuana to also be involved in the sale of marijuana.” Potter sought a warrant listing the documents and property he expected to find; he did not mention guns. On September 23, 1998, a state court judge issued the search warrant that Potter sought.

According to the plaintiffs’ evidence, the only marijuana in their trash searched by Potter were blackened bits of marijuana wrapped in a paper towel, the remnants of smoked marijuana. They bolster their claim of falsity in Potter’s affidavit by thirteen declarations from other individuals whose trash was searched by MET. In each instance MET officers swore they found “marijuana leaves and stems recently cut from a mature marijuana plant” and that “the marijuana was fresh green and still moist.” In each instance, these thirteen individuals swore they placed no marijuana or products of marijuana in their trash.

The Baldwins’ further evidence is that the “rain drop” irrigation equipment was only for outdoor landscaping and that this fact should have been obvious to a trained narcotics investigator. The equipment included a sprinkler spraying water up to 14 feet, a soaker hose, and 6² heavy duty support stakes; none of these items are used in an indoor grow. The two black gardening pots pointed to no illegal activity. The “grow rock” in Potter’s affidavit was, the plaintiffs also state, a lava rock with no implication of criminal activity.

***

First, when Potter’s lies are taken out, what is left is an unidentified citizen at an unidentified date telling a sheriff’s deputy of marijuana growing at an unidentified time; also the presence of a rock and two pots, the uses of which are ambiguous. No magistrate could have authorized a search on this basis, essentially amounting to an informant’s tentative tip.

***
Plainly, Potter’s lies were substantial in moving the magistrate [to issue a search warrant].

I suggest that those fearful of Evil Conservative Judges spend some time with Judge Noonan's opinions and articles.

Testilying Part II

Don't miss this important update.

Testilying

At a criminal trial of a protestor, a police officer testifed under oath that

[The defendant] put up such a fight at a political protest last summer, the arresting officer recalled, it took four police officers to haul him down the steps of the New York Public Library and across Fifth Avenue.

"We picked him up and we carried him while he squirmed and screamed," the officer, Matthew Wohl, testified in December. "I had one of his legs because he was kicking and refusing to walk on his own."

One problem.  During a recess, the defense lawyer obtained a videotape that contradicted Officer Wohl's sworn testimony.

A videotape shot by a documentary filmmaker showed Mr. Kyne agitated but plainly walking under his own power down the library steps, contradicting the vivid account of Officer Wohl, who was nowhere to be seen in the pictures. Nor was the officer seen taking part in the arrests of four other people at the library against whom he signed complaints.

Will Officer Wohl be prosecuted for committing perjury?  Will the Department of Justice file a criminal complaint against Wohl, whose lies likely led to the defendant's unjust prosecution?  Section 1983 has a criminal analog (18 U.S.C. Sec. 242), though DOJ somehow forgot how to use it.

According to the story, not only are police officers lying, but government lab technicians are destroying evidence.

Last week, [a different defendant] discovered that there were two versions of the same police tape: the one that was to be used as evidence in his trial had been edited at two spots, removing images that showed Mr. Dunlop behaving peacefully. When a volunteer film archivist found a more complete version of the tape and gave it to Mr. Dunlop's lawyer, prosecutors immediately dropped the charges and said that a technician had cut the material by mistake.

So it was a mistake, 'eh?  Anyhow, please read the full story for more "mistakes."

Many thanks to Objective Justice for bringing this story to my attention.

A Few Online Sources About Police Lies

Riley v. City of Montgomery, Ala., 104 F.3d 1247 (11th Cir. 1997) (citing magistrate judge's report, which concluded that a lead "[police detective] routinely falsified records and may well have lied about the existence of a confidential informant").

Morgan Cloud, "The Dirty Little Secret," 43 Emory L.J. 1311 (Fall 1994) (collecting examples of police perjury).

Robert Bauman, "Good Faith Breeds Bad Cops," Reason (May '95) ("A 1988 investigation of the Boston police Drug Control Unit revealed that its members routinely fabricated the existence of informants and lied to obtain warrants from judges.") [I can't find the report online, but a search of Lexis-Nexus of periodicals from 1988 should turn up some reliable citations.  The investigation was conducted after a police shooting.]

Curt Brown, "Attorneys Pore over Past Cases," South Coast Daily (Aug. 17, 2001).  A judge found that a police detective made false statements in an affidavit.  Because of the police officer's perjury, the judge demanded that the detective produce a confidential informant the detective had allegedly relied upon in previous warrant applications.  Rather than produce the informant, prosecutors dismissed a pending criminal case. 

Maro Robbins, "Undercover cop put on night shift," San Antonio Express-News (Feb. 18, 2001) ("Federal prosecutors have dismissed two cocaine cases and scaled back a third because an undercover police officer lied about his information source in a sworn statement requesting search warrants.")  [The SA Express-News requires a payment of $2.95 for the full article, though a summary of the article is available here.]

Publicity Costs

It's common for law enforcement officers to hold a press conference after making an arrest.  If, for example, the police and prosecutors hold a press conference to show the public that a serial killer has been arrested, a press conference is valuable.  It allows people to breath a little easier.

These days press conferences are held many police officers and prosecutors hungry for the limelight.  Sadly, law enforcement often invite members of the media to videotape a "perp walk."   This serves no legitimate law enforcement interest and permanently harms the defendant's reputation.

Because I find publicity-hungry police officers sickening, I was pleased to learn that a publicity stunt backfired on the police - a 4.5mm backfire.

A jury on Thursday awarded $4.5 million to a high school girls basketball coach who was arrested by the San Marino Police Department and accused of molesting a girl, although he was never charged with a crime.

Patrick Gillan filed a lawsuit against the department in May 2002, claiming defamation and intentional infliction of emotional distress arising from false arrest.

***

He was arrested in December 2001 for investigation of sexually assaulting a female student who alleged she was molested several times when she was 17.

Soon after, police held a news conference and showed Gillan's mug shot, which was then broadcast on several TV stations and published in a few newspapers. Gillan was released after being booked, but court documents said that he had only been "detained."

Superior Court Judge Robert O'Brien ruled Thursday that there was no probable cause for the arrest.

***

During the civil trial, attorneys for the police department argued that officers were doing their job to investigate the girl's claims and weren't liable for damages.

But Gillan's attorney John Burton said some people still see his client as a threat and the negative publicity has done damage to his reputation. Burton said the accusations were fueled by the girl's family who wanted the girl to become a Division I college basketball star.

The girl, Taylor Bouchard, who is 21 and testified at the trial, ended up at a Division III college and told her coach she had been molested by Gillan while in high school.

"It was an excuse she had made up to get her out of a situation with college basketball and her over-domineering parents," Burton told jurors.

Bouchard, who continues to maintain she was molested, and her mother, were named in the lawsuit but were dropped as part of a settlement agreement.

It Pays to Play

CrimProf Blog summarizes a Missouri Supreme Court case holding that there is nothing wrong with allowing a co-defendant who pays the victim's family $230,000 to receive ten years in prison while the other co-defendant receives death.

Just Following the Rules

Apropos my recent post on overcriminalization, comes now the criminalization of arts and supplies:

A 10-year-old girl was placed in handcuffs and taken to a police station because she took a pair of scissors to her elementary school.

School district officials said the fourth-grade student did not threaten anyone with the 8-inch shears, but violated a rule that considers scissors to be potential weapons.

Administrators said they were following state law when they called police Thursday, and police said they were following department rules when they handcuffed Porsche Brown and took her away in a patrol wagon.

(Via CrimProf Blog).

Cato Book Forum

Today the Cato Institute held a book forum discussing Go Directly to Jail: The Criminalization of Almost Everything, which you can watch in RealAudio here.

Is American Liberty Imperiled?
BOOK FORUM Tuesday, December 14, 2004 12:00 PM (Luncheon to follow)
Judge Andrew P. Napolitano, Senior Judicial Analyst, Fox News, and Author, Constitutional Chaos: What Happens When the Government Breaks Its Own Laws (Nelson Books, 2004); Gene Healy, Senior Editor, Cato Institute, and Editor, Go Directly to Jail: The Criminalization of Almost Everything (Cato Institute, 2004); and moderated by Tim Lynch, Director, Cato's Project on Criminal Justice

If the price of liberty is eternal vigilance, then it is necessary to take a step back from the transient issues of the day, which so often transfix our capital city, and assess the state of liberty in America. According to two new books, liberty in America has been under a relentless, though often subtle, assault. In Constitutional Chaos, Judge Andrew Napolitano maintains that most Americans take their constitutional rights and liberties for granted and are largely ignorant of how the government breaks its own laws and gets away with it. In Go Directly to Jail, Cato Institute senior editor Gene Healy shows how the government has been criminalizing more and more citizen conduct. With more than 4,000 federal offenses on the statute books and thousands more buried in the Code of Federal Regulations, Healy points out that there are good reasons to be alarmed by the government’s perfectly “legal” restrictions, investigations, and prosecutions.

Please join us for a discussion of these disturbing trends and what might be done about them. Cato book forums and luncheons are free of charge.

Go Directly to Jail

Go Directly to Jail: The Criminalization of Almost Everything

Edited by Gene Healy

  You're an honest businessperson with a strong moral compass. You don't cheat on your taxes, or your spouse. You regularly consult with your attorney to ensure that you're complying with the myriad regulations governing your business. You even go the extra mile, talking with children at "Junior Achievement" programs about how to achieve success. The possibility of a criminal prosecution is the last thing on your mind. "The government only goes after real criminals," you think to yourself.

The latest offering from the Cato Institute says: Think again.

In Go Directly to Jail: The Criminalization of Almost Everything, six essays catalog decent people caught in the indecent web of over 4,000 federal criminal laws. 

In "Overextending the Criminal Law," Professor Eric Luna introduces us to the expanding federal criminal code, which now includes, to the extent that scholars can even count them, over 4,000 crimes. Worse, these crimes have come loose from the common law moorings that punished the evil, and acquitted the good. By eliminating the traditional requirement that a person is guilty only of he commits a guilty act motivated guilty mind, "legislators" are turning traditional "criminal sanctions" into "another tool in their regulatory toolkit." As the book jacket explains, "an unholy alliance of tough-on-crime conservatives and anti-big-business liberals has utterly transformed the criminal law" into a trap for the unwary.

In "The New 'Criminal' Classes: Legal Sanctions and Business Managers" James DeLong discusses the general principles of criminal law that affect all cases, especially the lack of a mens rea requirement in most modern criminal laws. Thus, someone who acts in good faith (even consulting with a lawyer before acting) can end up in prison. Which is what happened to David McNab.

McNab was a seafood importer who shipped undersized lobsters and lobster tails in opaque plastic bags instead of paper bags. These were trivial violations of a Honduran regulation - equivalent to a civil infraction, or at most, a misdemeanor. However, using creative lawyering, a government prosecutor used this misdemeanor offense as the basis for the violation of the Lacey Act, which is a felony. The prosecutor then used the Lacey Act charge as a basis to stack on smuggling and money laundering counts. You got that?

McNab was guilty of smuggling since he shipped lobster tails in bags that you can see through, instead of shipping them through bags that would frustrate visual inspection. He was guilty of money laundering since he paid a crew on his ship to "smuggle the tails." Although it turned out that the Honduran regulation was improperly enacted and thus unenforceable, the government did not relent. A honest businessman lost his property and his freedom: McNab is serving 8-years in prison.

You might be thinking that my summary of the McNab case is fishy. Surely I'm keeping something from you, since no judge would really sentence an honest businessperson so severely. But as Professor Luna details in "Misguided Guidelines: A Critique of Federal Sentencing," prosecutors, not judges, set the terms of sentencing. A judge's hands are tied by the Guidelines. The judge in the McNab case could not weigh McNab's success as a businessperson, his age and family ties and responsibilities, or his lack of any criminal intent. Although McNab was a criminal by accident, not design, the Guidelines required the judge to treat him as a member of La Costra Nostra. Professor Luna ably demonstrates that the Guidelines are not only unconstitutional as a matter of separation of powers, but also as a matter of due process, and more generally, the Guidelines violate any sense of decency.

In "Polluting Our Principles: Environment Prosecutions and the Bill of Rights," Timothy Lynch (Director of the Cato Institute's Criminal Justice Project) talks about the world of environmental enforcement that even Joseph Heller could not have constructed. Lynch shows the irrational world facing a manager whose employee violates an environmental regulation. If an employee violates a law, the manager is liable, his ability to have prevented the illegal act notwithstanding. Yet if the manager does not report the employee (thus subjecting himself to criminal liability), the manager is guilty of a crime. Heads you lose. Tails you lose.

The manager also may not rely on governmental interpretations of the laws as a defense. An environmental enforcement official told one citizen that he could build him home on undeveloped land. One year into the project, the citizen was told that he was breaking the law. You can't rely on those enforcing the law to know the law.

Worst of all is that coming on the wrong side of the flip of an environmental enforcer's whim does not mean you lose a wager. It means you lose your freedom, and your dignity. Environmental laws put people who will be unlikely to defend themselves into prison with the hawks. And even doctors are not immune.

In "HIPAA and the Criminalization of American Medicine," Grace-Marie Turner reports how doctors may find themselves guilty of fraud when their secretaries do nothing more than enter in the wrong billing code out of the tens of thousands of codes to enter. The hundreds of thousands of pages or regulations are literally unknowable, thus subjecting doctors to potential prison sentences. Patients are also hurt, as small-town doctors join larger conglomerates for the additional legal and financial protection. If HIPAA's criminal penalties go unabated, there will be no more Doc. Bakers.

And federal power is growing, as Gene Healy details in "There Goes the Neighborhood: The Bush-Ashcroft Plan to 'Help' Localities Fight Gun Crime." Ignoring principles of federalism and enumerated powers, federal prosecutors, who are always welcome guests at the Federalist Society Annual Convention, are turning even trivial violations of local gun laws into a federal case.

Go Directly to Jail is a must-read for anyone interested in criminal law, as well as doctors and other small business owners, who until recently were more likely to be crime victims rather than criminals. And you don't have to take my word for it. Miguel Estrada (who was filibustered for being too "conservative") endorses the book, writing that "ordinary businesspeople risk being jailed for run-of-the-mill commercial dealings that traditionally have been handled by contract and tort law." Mr. Estrada should know: He represented David McNab.

You can (and dare I say should?) buy Go Directly to Jail here.

The IRS Hires Bounty Hunters

Appalling.

When Reps. Shelley Moore Capito (R-W.Va.) and Chris Van Hollen (D-Md.) teamed up in September to get the House to pass an amendment blocking the use of private companies to collect back taxes from delinquent taxpayers, it seemed the Bush administration plan might be doomed for at least a year.

But in the final hours of drafting a 3,300-page spending bill last month, House and Senate negotiators eliminated Capito's and Van Hollen's handiwork, clearing the way for the Internal Revenue Service to hire commercial debt collectors. These private agents could keep as much as 25 percent of the amounts they recovered.
***
Under the legislation, contractors will ... be given names, addresses, phone numbers and other identifying information about delinquent payers.

You might be wondering, "What's your problem, Mike?  The government here is merely using a more efficient means to collect debt it's legally owed."

My problem with this scheme is that it involves the government using data collected under color of law and then sharing this data with private companies not bound by constitutional procedures.

We do not "share" our private information with the IRS.  The IRS obtains this information on your tax return under threat of law.  If you do not give the IRS personal information that you otherwise might keep private (e.g., your address and telephone number), you risk going to jail.

Here, the IRS is taking this information and giving it to a private company not bound by the Constitution in its treatment of you.  If an IRS agent "crosses the line," you might be able to bring a Bivens action (an implied right of action brought under the Constitution against the federal government) against him or her.  But if a collection agent crosses the line, he or she is probably not liable under Bivens, although I imagine fair debt practices would apply to these agencies conduct.

Moreover, even if the collection agent is liable under a joint-action theory of acts done under color of law, the collection agency most likely would not be.  As Geoffrey Segal notes here, the lack of person who is not judgment proof (i.e., the agency rather than the $8/hr. collection agent) means such suits will not likely be brought.

Thus, I oppose the IRS's new collection scheme because the collection agencies obtain personal information obtained under color of law without being bound by the same rules that woud apply to an IRS agent's collection process.

Do police officers have a license to club?

So asks professional gadfly Andy Thibault  in this column (free registration may be required):

Thirteen years ago, videotape showed a Hartford cop whacking a handcuffed student in the face. Miraculously, the cop was fired. Then, four months later, he was rehired. The kid must have attacked the club with his head.

Just last month, we saw elements of a police riot -- again -- at the University of Hartford.

Before I get too far, though, I must acknowledge that some people like to bait cops, even fight them. This might have been part of the milieu Oct. 31 at the university. Still, this does not excuse clubbing someone who is cuffed, observing or just asking a question.

We have promises now of a full investigation and a report. That's more than most people get, but it's not enough. Is there really any chance that a serious investigation will take place and that people will be held accountable? Perhaps for the former; the odds are bad for the latter.

Connecticut needs a viable system to deal with police brutality complaints. No credible, neutral mechanisms exist.

Ethical Amnesia

From yesterday's Daily Journal (subscription required) comes a story about prosecutors who - surprise, surprise - decided not to follow the law.

For the second time this summer, a federal judge has chastised Los Angeles county prosecutors for keeping a man in custody after the 9th U.S. Circuit Court of Appeals ordered him freed. "It appears that prosecutors acted in the role of persecutors in this case," U.S. District Judge ickran Tevrizian said at a court hearing Monday morning.

Thomas Goldstein was convicted in 1980 for the shooting death of John McGinest in Long Beach. The 9th Circuit, citing prosecutors' reliance on "a notorious jailhouse informant," ordered him freed in December. The decision appeared to vindicate Goldstein's contention that he had spent 24 years in state prison for a murder he didn't commit. However, he remained in custody until April, when prosecutors finally dropped their efforts to retry
him.

Two months ago, Tevrizian condemned county prosecutors for "a cavalier attitude" and "ethical amnesia" in failing to get a judge's approval to keep Goldstein behind bars. The district attorney's office went to court Monday in the hopes of having Tevrizian strike this earlier finding. Instead, Tevrizian not only upheld his ruling but also reiterated his disdain for the final stages of Goldstein prosecution.
                                                             ***
"The Court does not excuse or condone the conduct of the prosecutors in this case," Tevrizian wrote in his order. "Specifically, this Court condemns and censors Los Angeles County Deputy District Attorneys Patrick Connolly and Anne Ingalls in this case for their cavalier attitude, ethical amnesia, and questionable conduct in issuing a detainer that did not comply with California Penal Code [Section] 4755 in that it was not a warrant for arrest." The judge continued, "Said conduct employed by the prosecutors extended Mr. Goldstein's incarceration for as long as possible and then some."

Never Allow Law to Stand in Your Way

Having just read DOJ’s memo on Blakely, I am appalled by the lack of substantive legal analysis.  Here is how the memo begins:

“The position of the United States is that the rule announced in Blakely does not apply to the Federal Sentencing Guidelines, and that the Guidelines may continue to be constitutionally applied in their intended fashion, i.e., through factfinding by a judge, under the preponderance of the evidence standard, at sentencing.”  Memo at 1.

No one suspected otherwise.  Indeed, I noted (based on highly reliable intelligence) that this is what DOJ would be arguing.  But where it the law?  The DOJ tells us that its “legal argument, which will be developed more fully in a model brief that the Criminal Division will distribute, is that the lower federal courts are not free to invalidate the Guidelines given the prior Supreme Court decisions upholding their constitutionality, and that, on the merits, the Guidelines are distinguishable from the system invalidated in Blakely.”  Id.

Shouldn’t the DOJ refrain from issuing policy directives until after it has fully analyzed the legal issues?  As an Executive Branch, the DOJ deals with law – its enforcement and prosecution.  That the DOJ does not have a memo ready for distribution indicates that it has not fully analyzed the case.  This, if true, is a dereliction of its constitutional duty.

Further, “All federal prosecutors should [ ] argue in favor of the continued constitutional validity of the Sentencing Guidelines as a system requiring the imposition of sentences by judges.”  Id. at 2.  However, DOJ offers no legal reasons for doing so.  Instead, AUSAs should simply “argue.”  Article II does not empower the Executive to merely make arguments.  Rather, the Executive Branch “shall take Care that the Laws be faithfully executed.”  Art. II, sec. 3.  And lest the government forget: The Constitution is the supreme law of the land.  Art. VI, cl. 2.  How can the laws be faithfully executed if they are not first fully analyzed?  How can the government forget that it has a duty to ensure that a criminal defendant's rights not be violated?

The remainder of the memo consists of how-to advice.  Namely, how to argue against the application of Blakely; how to get a defendant to waive his rights under Blakely; and how to charge new crimes while avoiding the potential problems of Blakely.  Though, again, no legal analysis is offered.  The memo does not parse the Blakely opinion.  There is no comparison and contrast between the Washington and Federal Guidelines.  This lack of analysis is startling because in its amicus brief the United States asserted a "substantial interest in the outcome [of Blakely]" because "a decision invalidating judicial departure authority here could call into question the constitutionality of the federal Guidelines."  Brief at 1.

If a lawyer had his clients make decisions based on this memo, he would be liable for malpractice.  If a law student submitted this memo as a legal writing project, he would get an “F.”  If I submitted this memo to my boss, he would fire me.  But this memo – laden with nothing but unsupported arguments – is what the United States deems good enough to rely upon when depriving a man of his liberty.  That, my friends, is appalling.

UPDATE:  Marty Lederman blogs about DOJ's Blakely memo: It will be interesting to learn the Department's view as to which SCOTUS case "directly controls" the question whether the Sentencing Guidelines violate the Sixth Amendment per Apprendi and Blakely..  I read every Lederman post regardless of the topic - the dude is on fire.

UPDATE: CrimLaw analyses DOJ's arguments.

UPDATE:  Sentencing Law & Policy has connections.  Click here for DOJ memos defending the Guidelines despite Blakely.

Guess Who Wins

This story begins:

Aboard a crowded Brooklyn-bound B train last Wednesday, one of those nasty little spats broke out over who was in whose space. Leaning against the center pole was a diminutive young woman in a skirt. Towering over her was a heavyset man in a suit, with long dreadlocks. The big guy accused the woman of hoarding the pole. The woman told the man to move his hand. He told her to stop taking up so much room. She shot back that he should do the same and go on a diet. Ouch.

***

Black said the big guy pulled her off the train, banging her hard against a pillar on the platform. When she was able to yank her bag away, the man said he was going to call the police. "I started walking, and he kept following me. I walked out into the street; I just wanted to find someone to help get this guy away from me."

The girl was 23-years old and 5'2". The 37-year old man was a strongly built 5'7". When police enter the scene, whom do you think they arrest? Would you change your guess if I told you that the man was an assistant district attorney? I sure hope so.

Outside, Black said, Nottage was on the phone loudly telling someone he was with the district attorney. Within minutes, five squad cars were on the scene, she said. A female officer apologetically told Black she would have to handcuff her and take her to the precinct. "She told me not to worry, that he [Nottage] was raising a big stink, but there was no way I would be arrested." The worst-case scenario, Black was told, was that she would get a ticket and have to show up later in court.

At the station, Black was held in a cell. As the hours ticked on, sympathetic officers told her they were trying to file a cross-complaint against Nottage for taking her bag. Nottage, however, had gone to the precinct's top commanders, she was told, who were worried about bucking the D.A. "They told me they had to work with the district attorney's office, so they really couldn't go up against him," she said.

One cop told the Voice that everyone in the precinct was angry at the way the incident was handled.

"My heart went out to her; so did everyone's in the precinct. This guy [Nottage] was about twice her size," said the officer, who asked not to be named, citing Nottage's apparent clout. "Did he throw his name around as to who he was? Absolutely. The worst that would usually happen would be that she would get a D.A.T. [desk appearance ticket]. Instead he insisted she be put through the system."

Black was kept in the precinct holding pen through the night and the next day. Black said she suffers from hypoglycemia and became dizzy and ill twice, having to be transported to the hospital, then back to the precinct.

Please read the full story.

LAPD Beats Up Another Guy

The video showing this conduct is available here.

I have lived in Los Angeles for too long when this conduct does not surprise me.  The LAPD beating someone up - why would this shock me?  My only surprise comes from the fact that the brutality has been videotaped.