If you have a notion to take something from a store without paying, don't do it! Even if you feel that the big box, corporate store would not feel it, you will. For starters, they are watching. They have hidden cameras, security personnel dressed like shoppers, and detection devices at the doors..
And once you are caught, not only will you be prosecuted, but the store can sue you for damages under RCW 4.24.230. That provides: " An adult or emancipated minor who . . . [steals]is liable in addition to actual damages, for a penalty to the owner or seller in the amount of the retail value thereof not to exceed two thousand eight hundred fifty dollars, plus an additional penalty of not less than one hundred dollars nor more than six hundred fifty dollars, plus all reasonable attorney's fees and court costs expended by the owner or seller.."
This liability is in addition to potential criminal proscution. Frequently, people get notices after being caught by security from distant lawyers practicing in states like Florida. The letter demands anywhere from $100 to $650 for the petty cases. The letter must contain this notice: "IMPORTANT NOTICE: The payment of any penalty demanded of you does not prevent criminal prosecution under a related criminal provision." If you receive such a notice, don't just pay right away. It may be worth consulting a lawyer..
One way to mitigate the inevitable criminal prosecution is to try to work out a 'compromise of the misdemeanor.' This compromise is described in another Washington law, RCW 10.22.010. It grants a court discretion to dismiss an eligible charge (where the charge was not committed upon an officer, or done “riotously,” or with intent to commit a felony or involve domestic violence.) The key requirement is that the injured party must “acknowledge in writing that he or she has received satisfaction for the injury.” So if you want to pay the civil fine, it may be worth negotiating with the victim of the theft to get them to agree to sign off on a compromise of the misdemeanor..
One irony for shoplifters: the big corporate chains--Sears, KMART, Fry's Electronics, etc. are the most likely to catch you, the most likely to make a civil demand, and the least likely to agree to a compromise of the misdemeanor when you are charged with a crime. "It's against corporate policy" or some such rubbish is their reasoning. They want your purchases but they don't really care about you: the no mercy rule. In contrast, the poorer, solo shopowners who can't afford the fancy security are more likely to sign off on a compromise. One more reason to stay away from chain stores..
These rules apply to juveniles as well. That is, the custodial parent can be sued on the civil side. Of course that may give the parent a right to collect that debt from their young loved one.
For example there is a case where the juvenile shoplifted a $20 shirt and his father paid a civil penalty of $175 to the store, the court required the son to pay his father $100 back in restitution. State v. T.A.D., 122 Wn. App. 290, (2004)..
So caveat emptor: buyer and shoplifter, beware..!
Wednesday, July 21, 2010
Friday, July 2, 2010
How Could the Jury Let That Cop Off?
King County deputy sheriff punches and kicks a juvenile on videotape, lies on his reports, gets fired, and yet two juries have failed to convict him for a misdemeanor assault on the 15 year old girl! Even stranger--the first jury votes 11-1 to convict and the second 11-1 to acquit, a total reversal.. What is going on?
To begin with, when a case is re-tried to a new set of 12 jurors, it is a fresh start even if the evidence comes out exactly the same. People can view the evidence in different ways, depending on their background and other characteristics. Here, the first case was tried in downtown Seattle and the second case was tried in Kent--the two locales for King County Superior Court. The Kent site jurors are from south King County. In the same manner, downtown Seattle cases draw only city residents and north enders. It is well known that north King County residents (including Seattle) are richer and better educated on average than south end residents. So it is likely the two jury panels had different socio-economic averages, which explains one difference in how they act as jurors and perceived the case..
Another difference is that the evidence usually does not come out exactly the same in the second trial. So it is like a fresh shake of the dice if the evidence differs enough. And certain subtleties such as impeachment with prior testimony from the first trial can effect the perceptions in the second trial. Another strong possibility is the arrogance of the prosecutor. Since he won the first 11-1, he probably did nothing to improve his hand and just replayed what he did the first time. I question whether he vigorously cross-examined the defendant, especially using the lies he told about the incident..
In fact, a big factor in the second trial, according to some jurors, is that the prosecutor "didn't prove if the force was unlawful or lawful." That is, the jury was no doubt instructed on lawful force, which sets out the law on 'self defense.' That instruction defines what is lawful force and specifically requires the prosecutor to prove beyond a reasonable doubt that the defendant was not employing reasonable force. This is a high hurdle for the prosecutor. To begin with, jurors are going to give police officers a lot of leeway in employing force on their jobs. To be sure, if the officer had simply grabbed the girl and forcibly cuffed her after she kicked the shoe at him, he wouldn't even have been charged. So he could legally use force to restrain her. It also probably helped the defense that young people (recent jaywalking incident) may be perceived as not respecting police. That is a subject a creative defense lawyer might have used in jury selection or closing argument..
And yet, the officer seemed to punch and kick her unnecessarily. So the issue was really whether his use of force was "excessive." The standard jury instruction uses the phrase: "when the force is not more than is necessary." That phrase is further explained to the jury this way: "The person using or attempting the force may employ such force and means as a reasonably prudent person would use under the same or similar conditions as they appeared to the person, taking into consideration all of the facts and circumstances known to the person at the time of and prior to the incident." So the officer's training, experience and background with similar offenders is relevant. And the jury noted this when one remarked: "It was a very strong show of force, but the fact she was not injured during the process shows he followed the techniques he was trained to use." In other words, they bought the defense argument that the state had not proved that the force was excessive beyond a reasonable doubt. Again, I wonder if the state produced sufficient expert testimony to rebut this claim..
There is no question that the cop's attorney, Peter Offenbecker, did a great job, especially dealing with the negative publicity and the preconceptions a jury would harbor. In contrast, the prosecutor should question his trial skills. Results like this always baffle anyone who did not sit throughout the entire trial and hear all of the testimony and arguments. At this point, this is a case that the state should not and probably will not re-try. And I doubt the federal prosecutor will take the case. The only 'justice' is that the County did settle a civil suit by the 15 year old girl. Except. . . we, the taxpayers, footed that bill..
To begin with, when a case is re-tried to a new set of 12 jurors, it is a fresh start even if the evidence comes out exactly the same. People can view the evidence in different ways, depending on their background and other characteristics. Here, the first case was tried in downtown Seattle and the second case was tried in Kent--the two locales for King County Superior Court. The Kent site jurors are from south King County. In the same manner, downtown Seattle cases draw only city residents and north enders. It is well known that north King County residents (including Seattle) are richer and better educated on average than south end residents. So it is likely the two jury panels had different socio-economic averages, which explains one difference in how they act as jurors and perceived the case..
Another difference is that the evidence usually does not come out exactly the same in the second trial. So it is like a fresh shake of the dice if the evidence differs enough. And certain subtleties such as impeachment with prior testimony from the first trial can effect the perceptions in the second trial. Another strong possibility is the arrogance of the prosecutor. Since he won the first 11-1, he probably did nothing to improve his hand and just replayed what he did the first time. I question whether he vigorously cross-examined the defendant, especially using the lies he told about the incident..
In fact, a big factor in the second trial, according to some jurors, is that the prosecutor "didn't prove if the force was unlawful or lawful." That is, the jury was no doubt instructed on lawful force, which sets out the law on 'self defense.' That instruction defines what is lawful force and specifically requires the prosecutor to prove beyond a reasonable doubt that the defendant was not employing reasonable force. This is a high hurdle for the prosecutor. To begin with, jurors are going to give police officers a lot of leeway in employing force on their jobs. To be sure, if the officer had simply grabbed the girl and forcibly cuffed her after she kicked the shoe at him, he wouldn't even have been charged. So he could legally use force to restrain her. It also probably helped the defense that young people (recent jaywalking incident) may be perceived as not respecting police. That is a subject a creative defense lawyer might have used in jury selection or closing argument..
And yet, the officer seemed to punch and kick her unnecessarily. So the issue was really whether his use of force was "excessive." The standard jury instruction uses the phrase: "when the force is not more than is necessary." That phrase is further explained to the jury this way: "The person using or attempting the force may employ such force and means as a reasonably prudent person would use under the same or similar conditions as they appeared to the person, taking into consideration all of the facts and circumstances known to the person at the time of and prior to the incident." So the officer's training, experience and background with similar offenders is relevant. And the jury noted this when one remarked: "It was a very strong show of force, but the fact she was not injured during the process shows he followed the techniques he was trained to use." In other words, they bought the defense argument that the state had not proved that the force was excessive beyond a reasonable doubt. Again, I wonder if the state produced sufficient expert testimony to rebut this claim..
There is no question that the cop's attorney, Peter Offenbecker, did a great job, especially dealing with the negative publicity and the preconceptions a jury would harbor. In contrast, the prosecutor should question his trial skills. Results like this always baffle anyone who did not sit throughout the entire trial and hear all of the testimony and arguments. At this point, this is a case that the state should not and probably will not re-try. And I doubt the federal prosecutor will take the case. The only 'justice' is that the County did settle a civil suit by the 15 year old girl. Except. . . we, the taxpayers, footed that bill..
Thursday, June 24, 2010
Sign a petition and stand by your position.
Today the U.S. Supreme Court ruled that Washington's Public Disclosure Law does not violate the First Amendment rights of people who sign petitions to change the law. Doe v. Reed involved the referendum to repeal the law giving same-sex couples some of the same rights and benefits heterosexual couples get. That referendum was later rejected by 53% of the voters; i.e., the same-sex couples law was upheld..
Before that election when the referendum supporters had enough signatures to get the issue on the ballot, opponents of the referendum filed for disclosure of the names of the referendum signers. Under state law, the signers' names and addresses on successful petitions are considered state documents and subject to public disclosure. The signers objected, arguing their right to freedom of expression would be chilled by the potential for harassment for their position. A federal district judge in Tacoma agreed and issued an injunction barring release of the names. In an 8-1 decision the court reversed, and Chief Justice Roberts wrote: "disclosure requirements may burden the ability to speak, but they do not prevent anyone from speaking .."
Justice Sotomayor concurred with that reasoning: "for persons with the "civic courage" to participate in this process, the State’s decision to make accessible what they voluntarily place in the public sphere should not deter them from engaging in the expressive act of petition signing." Although the Court threw out the First Amendment challenge, it left open the possibility that the referendum signers might still prevent disclosure if they could qualify for an exemption under the Public Disclosure Law. As Justice Stevens in his concurring opinion noted: "there would have to be a significant threat of harassment directed at those who sign the petition that cannot be mitigated by law enforcement measures" for disclosure to be granted..
The referendum signers wanted to remain anonymous because they 'feared' harassment from the other side. I'm not sure that's what was really going on. I think they wanted to hide their biases and prejudices against same-sex couples from ridicule. Because their attempt to 'protect marriage' is narrow minded and stupid. The fact that some adults wish to spend their domestic, private lives with the same sex has no effect upon others who choose to spend their private lives with the opposite sex. The argument that a marriage's only purpose is to sanctify the procreation and raising of children is to miss the point of love and marriage. Just because only opposite sex marriages can result in biologicial children, it does not mean others should not enjoy marriage and have an equal right to the benefits the law confers. And in any event, I know many same sex couples who are much better parents than opposite sex couples..
Of greater concern is this notion of anonymity. In the era of the internet it is much easier to express opinions anonymously behind some username. That permits the most extreme, irresponsible positions, arguing nonsense such as death panels. The notion that anonymity is sacred is wrong. Even the supposed right to a secret ballot is not that old. As Justice Scalia pointed out: "Voting was public until 1888 when the States began to adopt the Australian secret ballot. . . We have acknowledged the existence of a First Amendment interest in voting, but we have never said that it includes the right to vote anonymously." Opinions about the public policy must be openly discussed. On this I agree with Justice Scalia when he writes: "For my part, I do not look forward to a society which campaigns anonymously and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.."
If you don't have the courage to stand by your convictions, then you shouldn't sign petitions or take positions that others can hear or read in any medium. Having to withstand criticism and defending your position is part of the process. Otherwise, there is no marketplace of ideas, but just a jeering crowd of anonymous hecklers and bigots..
Before that election when the referendum supporters had enough signatures to get the issue on the ballot, opponents of the referendum filed for disclosure of the names of the referendum signers. Under state law, the signers' names and addresses on successful petitions are considered state documents and subject to public disclosure. The signers objected, arguing their right to freedom of expression would be chilled by the potential for harassment for their position. A federal district judge in Tacoma agreed and issued an injunction barring release of the names. In an 8-1 decision the court reversed, and Chief Justice Roberts wrote: "disclosure requirements may burden the ability to speak, but they do not prevent anyone from speaking .."
Justice Sotomayor concurred with that reasoning: "for persons with the "civic courage" to participate in this process, the State’s decision to make accessible what they voluntarily place in the public sphere should not deter them from engaging in the expressive act of petition signing." Although the Court threw out the First Amendment challenge, it left open the possibility that the referendum signers might still prevent disclosure if they could qualify for an exemption under the Public Disclosure Law. As Justice Stevens in his concurring opinion noted: "there would have to be a significant threat of harassment directed at those who sign the petition that cannot be mitigated by law enforcement measures" for disclosure to be granted..
The referendum signers wanted to remain anonymous because they 'feared' harassment from the other side. I'm not sure that's what was really going on. I think they wanted to hide their biases and prejudices against same-sex couples from ridicule. Because their attempt to 'protect marriage' is narrow minded and stupid. The fact that some adults wish to spend their domestic, private lives with the same sex has no effect upon others who choose to spend their private lives with the opposite sex. The argument that a marriage's only purpose is to sanctify the procreation and raising of children is to miss the point of love and marriage. Just because only opposite sex marriages can result in biologicial children, it does not mean others should not enjoy marriage and have an equal right to the benefits the law confers. And in any event, I know many same sex couples who are much better parents than opposite sex couples..
Of greater concern is this notion of anonymity. In the era of the internet it is much easier to express opinions anonymously behind some username. That permits the most extreme, irresponsible positions, arguing nonsense such as death panels. The notion that anonymity is sacred is wrong. Even the supposed right to a secret ballot is not that old. As Justice Scalia pointed out: "Voting was public until 1888 when the States began to adopt the Australian secret ballot. . . We have acknowledged the existence of a First Amendment interest in voting, but we have never said that it includes the right to vote anonymously." Opinions about the public policy must be openly discussed. On this I agree with Justice Scalia when he writes: "For my part, I do not look forward to a society which campaigns anonymously and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.."
If you don't have the courage to stand by your convictions, then you shouldn't sign petitions or take positions that others can hear or read in any medium. Having to withstand criticism and defending your position is part of the process. Otherwise, there is no marketplace of ideas, but just a jeering crowd of anonymous hecklers and bigots..
Wednesday, June 16, 2010
Are the Police Getting More Violent?
The recent posting of the video of a police officer punching a 17 year old girl in the face revives this question. In that particular case, the officer was trying to control or handcuff another woman who allegedly jaywalked. The 17 year old intervened (even though you can see a male trying to pull her away from the confrontation) and began preventing the arrest of the other female. She was tussling with the officer when he punched her once in the face, which backed her off and allowed him to try to regain control of the person he wanted to arrest..
The first questions that come to my mind are: why was this patrol officer making a jaywalking arrest and couldn't he have used less force to gain control of the situation? Jaywalking is one of those offenses that officers can use to harass people or to see if they have warrants. On the other hand, this officer may always stop jaywalkers because it is an infraction. The fact is people should not openly break the law--even jaywalking--in front of police officers as it may challenge their authority. As to the force used, there may have been better ways to gain control of the situation, but most police officers do not tolerate disrepect or any disobedience. They will react to situtations that appear threatening to them, especially in light of all the violence directed toward the police lately..
Several other recent videos show police conduct that is far more violent and lawless. One was where the arrested man was cuffed and face down on the street and the police kicked and stomped him. He appeared helpless and the officer's insulting words involving Mexicans seemed to indicate an unlawful motive. The most egregious was the 15 year old girl who was beaten by an officer after she ostensibly disrespected him by lightly kicking her shoe at him. In these two cases the police clearly went over the line. Of course, years ago the Rodney King beating remains the most famous example of police violence. Do these instances reflect greater violence, or is it that more video cameras are just capturing what has always gone on? It's hard to say, but I have had plenty of clients tell me over the years about police violence..
Prosecutors have charged police with crimes in recent years for their excessive or unlawful use of force. In Everett, a police officer was tried for murder when a DUI suspect allegedly tried to leave the scene or run him over, depending on whose version was believed. The officer raised self defense and the jury acquitted him. Notably, the jury did not award him costs because they did not find by a preponderance of the evidence that he was using lawful force. Here in Seattle, the office who beat the 15 year old was tried for assault and also raised self defense. The first jury to hear that case hung. Reportedly, one juror held out against 11 others who voted to convict. That case will be re-tried. However, even where the video seems to prove the officer lost it and beat the girl, there are jurors who won't convict. But the mere fact that there have been several prosecutions lately makes me think that police violence could be on the uptick..
So returning to our 17 year old who was punched in the face, even if the officer used excessive force, what is to be done? To begin with, it will probably not be a defense to her potential charges of assault on the officer or for obstructing the arrest of the other woman. Generally, a person may use force to aid another in resisting an arrest by a police officer only if the person being arrested is in actual and imminent danger of serious injury from an officer's use of excessive force. The video does not show that the officer was using much force on the woman he was first trying to arrest. Similarly, a person being arrested has no right to resist even an unlawful arrest. They can only resist when there is actual and imminent danger of serious injury..
If a person is subject to an unlawful arrest, then the remedy is to sue the officer, not to resist the arrest. The 17 year old who was punched in the video may have a civil suit, although I doubt it will have much merit given that she had no right to intervene. On the other hand, the 15 year old who was beaten and the man face down on the street may have very good civil cases to pursue..
The first questions that come to my mind are: why was this patrol officer making a jaywalking arrest and couldn't he have used less force to gain control of the situation? Jaywalking is one of those offenses that officers can use to harass people or to see if they have warrants. On the other hand, this officer may always stop jaywalkers because it is an infraction. The fact is people should not openly break the law--even jaywalking--in front of police officers as it may challenge their authority. As to the force used, there may have been better ways to gain control of the situation, but most police officers do not tolerate disrepect or any disobedience. They will react to situtations that appear threatening to them, especially in light of all the violence directed toward the police lately..
Several other recent videos show police conduct that is far more violent and lawless. One was where the arrested man was cuffed and face down on the street and the police kicked and stomped him. He appeared helpless and the officer's insulting words involving Mexicans seemed to indicate an unlawful motive. The most egregious was the 15 year old girl who was beaten by an officer after she ostensibly disrespected him by lightly kicking her shoe at him. In these two cases the police clearly went over the line. Of course, years ago the Rodney King beating remains the most famous example of police violence. Do these instances reflect greater violence, or is it that more video cameras are just capturing what has always gone on? It's hard to say, but I have had plenty of clients tell me over the years about police violence..
Prosecutors have charged police with crimes in recent years for their excessive or unlawful use of force. In Everett, a police officer was tried for murder when a DUI suspect allegedly tried to leave the scene or run him over, depending on whose version was believed. The officer raised self defense and the jury acquitted him. Notably, the jury did not award him costs because they did not find by a preponderance of the evidence that he was using lawful force. Here in Seattle, the office who beat the 15 year old was tried for assault and also raised self defense. The first jury to hear that case hung. Reportedly, one juror held out against 11 others who voted to convict. That case will be re-tried. However, even where the video seems to prove the officer lost it and beat the girl, there are jurors who won't convict. But the mere fact that there have been several prosecutions lately makes me think that police violence could be on the uptick..
So returning to our 17 year old who was punched in the face, even if the officer used excessive force, what is to be done? To begin with, it will probably not be a defense to her potential charges of assault on the officer or for obstructing the arrest of the other woman. Generally, a person may use force to aid another in resisting an arrest by a police officer only if the person being arrested is in actual and imminent danger of serious injury from an officer's use of excessive force. The video does not show that the officer was using much force on the woman he was first trying to arrest. Similarly, a person being arrested has no right to resist even an unlawful arrest. They can only resist when there is actual and imminent danger of serious injury..
If a person is subject to an unlawful arrest, then the remedy is to sue the officer, not to resist the arrest. The 17 year old who was punched in the video may have a civil suit, although I doubt it will have much merit given that she had no right to intervene. On the other hand, the 15 year old who was beaten and the man face down on the street may have very good civil cases to pursue..
Thursday, June 10, 2010
KEEP YOUR POLITICS AS FAR FROM JUDICIAL ELECTIONS AS POSSIBLE!
Traditionally American courts have been more independent from politics than the other two branches of government. This is so despite judges having to run for office in many states. Although in all federal courts and in some states judges are appointed, in a number of other states, such as Washington, judges at all levels—municipal on up to the state’s Supreme Court—are elected..
Over the years in Washington state, judges’ elections have become more expensive and a bit more political. Some of our Supreme Court races are shaping up to be more of a left v. right type than previously. On the other hand, voters tend not to be well informed about judges’ politics, so that candidates with common last names, such a Johnson, have been able to exploit that..
But that’s nothing compared to the threat to judicial independence that San Diego County in California went through recently. There, a slate of four Christian lawyers, who vowed to be God’s ambassadors, ran against four sitting and well-respected judges. This slate was backed by a group of pastors, gun enthusiasts, and opponents of abortion and same sex marriage. (Can anyone explain why gun lovers and devout Christians band together? Does the NRA contribute to churches?) Luckily, the voters of San Diego County saw through this assault on the judiciary and voted to keep their independent judges in office just this week..
This may not be the last we see of such electoral politics. Such tactics might succeed better in more rural counties or even in Spokane County, where such interest groups might see this as a way of electing judges more inclined to their way of thinking. And that’s what is most disturbing. I am avowed liberal, but I would oppose the ACLU putting together a slate of judges. As a lawyer, I don’t want to be in any judge’s court who appealed to any interest group’s ‘way of thinking..’
To be effective, fair and impartial, judges have to be open minded and not beholden to a special interest’s ‘way of thinking.’ Now that the U.S. Supreme Court has thrown out laws limiting how much corporations can give to political candidates, another threat is for a corporate slates of judges to emerge. What if Boeing or Microsoft put together such a slate? Their 'way of thinking' is mostly governed by dollars and cents. Imagine trying to get a fair trial if you sue them!
The only ‘way of thinking’ a judge must follow is to uphold the Constitution and to interpret the laws passed by the legislature and enforced by the executive. Perhaps I am being a bit unrealistic to think that judge's decisions are apolitical. Yet, if some other ‘way of thinking’ intruded, any decision by that judge would be suspect, and certainly not better..
Over the years in Washington state, judges’ elections have become more expensive and a bit more political. Some of our Supreme Court races are shaping up to be more of a left v. right type than previously. On the other hand, voters tend not to be well informed about judges’ politics, so that candidates with common last names, such a Johnson, have been able to exploit that..
But that’s nothing compared to the threat to judicial independence that San Diego County in California went through recently. There, a slate of four Christian lawyers, who vowed to be God’s ambassadors, ran against four sitting and well-respected judges. This slate was backed by a group of pastors, gun enthusiasts, and opponents of abortion and same sex marriage. (Can anyone explain why gun lovers and devout Christians band together? Does the NRA contribute to churches?) Luckily, the voters of San Diego County saw through this assault on the judiciary and voted to keep their independent judges in office just this week..
This may not be the last we see of such electoral politics. Such tactics might succeed better in more rural counties or even in Spokane County, where such interest groups might see this as a way of electing judges more inclined to their way of thinking. And that’s what is most disturbing. I am avowed liberal, but I would oppose the ACLU putting together a slate of judges. As a lawyer, I don’t want to be in any judge’s court who appealed to any interest group’s ‘way of thinking..’
To be effective, fair and impartial, judges have to be open minded and not beholden to a special interest’s ‘way of thinking.’ Now that the U.S. Supreme Court has thrown out laws limiting how much corporations can give to political candidates, another threat is for a corporate slates of judges to emerge. What if Boeing or Microsoft put together such a slate? Their 'way of thinking' is mostly governed by dollars and cents. Imagine trying to get a fair trial if you sue them!
The only ‘way of thinking’ a judge must follow is to uphold the Constitution and to interpret the laws passed by the legislature and enforced by the executive. Perhaps I am being a bit unrealistic to think that judge's decisions are apolitical. Yet, if some other ‘way of thinking’ intruded, any decision by that judge would be suspect, and certainly not better..
Wednesday, June 2, 2010
Do You Have the Right to Remain Silent?
For many years in nearly all TV cop shows, the police read the Miranda warnings to the people they arrest. Despite the warnings, they talk. After all, it wouldn't make for very good TV if the suspects asserted their rights much. So usually they talk or provide absurd alibis or excuses that lead to the next scene. But in real life, after the police read the Miranda warnings ("You have the right to remain silent. Anything you say can be used against you . .") what does a person need to do to assert his or her rights? If they just remain silent, is that enough? Recently the U.S. Supreme Court ruled that refusing to talk is not a sufficient assertion of the right to remain silent..
It seems absurd. For what must a person do to exercise his right to remain silent beyond actually remaining silent? But lets look at the facts of the case--Berghuis v. Thompkins. The defendant, Van Thompkins, was arrested for murder at 1:30 p.m., taken to an 8x10 interrogation room and properly read all his Miranda rights. During the next three hours, Thompkins was mostly silent in the face of police questioning, answering some questions 'yes' or 'no' or nodding his head. At no time did he request a lawyer or say anything such as 'I wish to remain silent.' In the last 15 minutes, the police asked him: Do you believe in God?” He said “Yes,” as his eyes “welled up with tears.” Eventually he was asked, “Do you pray to God to forgive you for shooting that boy down?” He answered, "Yes." Which was all the prosecution needed..
Before the U.S. Supremes accepted this case, a federal Court of Appeals ruled that: “persistent silence for nearly three hours in response to questioning and repeated invitations to tell his side of the story offered a clear and unequivocal message to the officers" that he did not wish to waive his rights. Moreover, the police never asked for an express waiver of the Miranda rights. In a close 5-4 decision, the Supremes reversed, holding that: "Thompkins did not say that he wanted to remain silent or that he did not want to talk with the police. Had he made either of these simple, unambiguous statements, he would have invoked his ‘right to cut off questioning.’ Here he did neither, so he did not invoke his right to remain silent." The clear message is that an arrested person must say something such as, "I don't want to talk," or "I wish to remain silent." After such an assertion, then the law protects a person from repeated interrogation or other attempts to get around his constitutional rights..
Requesting a lawyer provides even more protection of the arrested person's rights. Unless and until the police get an attorney to the scene of the interrogation, they cannot resume questioning. Yet, with the Court's latest decision, the door to police persistence is further opened. The newest Justice--Sotomayor--writing the dissenting opinion, notes that the majority decision: "invites police to question a suspect at length—notwithstanding his persistent refusal to answer questions—in the hope of eventually obtaining a single inculpatory response." Silence alone, then, does not prevent the police from trying every interrogation trick in the book, from appealing to religion (as with Thompkins), or to motherhood, or perhaps using a ruse or a lie such as your pal says 'you did it..'
Our constitutional rights not to incriminate ourselves (5th Amendment) and to counsel (6th Amendment) are precious, but they do not protect us when they lie dormant. If you wish to assert your rights, you must say it. And you must say it loudly and in no uncertain terms. If you ask a question like "Do I need a lawyer?" it will not necessarily be answered by the police because they don't have to. If you are in doubt, you probably do need a lawyer, so make your demand loud and clear..
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It seems absurd. For what must a person do to exercise his right to remain silent beyond actually remaining silent? But lets look at the facts of the case--Berghuis v. Thompkins. The defendant, Van Thompkins, was arrested for murder at 1:30 p.m., taken to an 8x10 interrogation room and properly read all his Miranda rights. During the next three hours, Thompkins was mostly silent in the face of police questioning, answering some questions 'yes' or 'no' or nodding his head. At no time did he request a lawyer or say anything such as 'I wish to remain silent.' In the last 15 minutes, the police asked him: Do you believe in God?” He said “Yes,” as his eyes “welled up with tears.” Eventually he was asked, “Do you pray to God to forgive you for shooting that boy down?” He answered, "Yes." Which was all the prosecution needed..
Before the U.S. Supremes accepted this case, a federal Court of Appeals ruled that: “persistent silence for nearly three hours in response to questioning and repeated invitations to tell his side of the story offered a clear and unequivocal message to the officers" that he did not wish to waive his rights. Moreover, the police never asked for an express waiver of the Miranda rights. In a close 5-4 decision, the Supremes reversed, holding that: "Thompkins did not say that he wanted to remain silent or that he did not want to talk with the police. Had he made either of these simple, unambiguous statements, he would have invoked his ‘right to cut off questioning.’ Here he did neither, so he did not invoke his right to remain silent." The clear message is that an arrested person must say something such as, "I don't want to talk," or "I wish to remain silent." After such an assertion, then the law protects a person from repeated interrogation or other attempts to get around his constitutional rights..
Requesting a lawyer provides even more protection of the arrested person's rights. Unless and until the police get an attorney to the scene of the interrogation, they cannot resume questioning. Yet, with the Court's latest decision, the door to police persistence is further opened. The newest Justice--Sotomayor--writing the dissenting opinion, notes that the majority decision: "invites police to question a suspect at length—notwithstanding his persistent refusal to answer questions—in the hope of eventually obtaining a single inculpatory response." Silence alone, then, does not prevent the police from trying every interrogation trick in the book, from appealing to religion (as with Thompkins), or to motherhood, or perhaps using a ruse or a lie such as your pal says 'you did it..'
Our constitutional rights not to incriminate ourselves (5th Amendment) and to counsel (6th Amendment) are precious, but they do not protect us when they lie dormant. If you wish to assert your rights, you must say it. And you must say it loudly and in no uncertain terms. If you ask a question like "Do I need a lawyer?" it will not necessarily be answered by the police because they don't have to. If you are in doubt, you probably do need a lawyer, so make your demand loud and clear..
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Monday, May 24, 2010
What causes crime rates to go up or down?
Crime statistics show that both violent and property crimes dropped from 2008 to 2009, despite higher unemployment and a sinking economy. http://www.nytimes.com/2010/05/25/us/25crime.html?hp This is contrary to what many people believe. In the last year or so, friends and acquaintances would constantly ask me if my business was picking up due to the recession. The short answer is no..
Obviously with crime rates dropping, 'business' would be slower. But even more so, prosecution rates are dropping not only due to the dip in crime but also because state and local governments are cutting back on police, prosecutor and court budgets. My 'business' is far more dependent on prosecution rates than on crime rates. With the cuts in state and local budgets, another effect is felt: more lawyers without work. And when more lawyers are not employed by others, that means there are more of them competing to defend the shrinking pie of cases prosecuted..
But the bigger question is why are crime rates dropping in a recession? You'd think more unemployed people would mean more theft, robbery and other economic crimes plus more frustration, and perhaps more violent crime as well. Yet crime statistics from the 20th century show that the Prohibition era of the 1920's was far more violent than the Depression in the 30's. Experts do not have many well accepted theories on what causes crime rates to rise and fall. Some scholars have suggested such theories as: greater numbers of immigrants, who tend to keep a low profile; as opposed to this, others assert more illegal immigration increases crime rates; public housing policy dispersing the poor may decrease rates; legalized abortion (so fewer unwanted children are born) may decrease; the crack epidemic in the 1980's was thought to increase crime ; and changes in age distribution--e.g., the baby boom in the late 60's and 70's and the boomlet in the late 80's and 90's effect rates of crime..
The age distribution theory is probably the one most accepted. That is, crime rates tend to flow with the number of young males at a given time; the higher the proportion of young men in the population, the higher the crime rates since young men are by and large the biggest group of offenders. In fact, there is no strong statistical correlation between stricter law enforcement and longer sentences and the rise and fall of crime rates. See: http://www.psychologytoday.com/blog/the-scientific-fundamentalist/200808/when-crime-rates-go-down-recidivism-rates-go This just serves to show that politicians who emphasize 'law and order' as an issue may be just blowing smoke..
One interesting theory on why crimes rates might decline during a recession is it pulls families together, and this cohesion inhibits crime. More young people may move back home and are less influenced by their impulsive peers as well. There is also less economic activity in a recession so there is less interaction and opportunity for crime. Ironically, crime rates went up during the prosperity of the 1960's and one theory is that with rising wealth, the havenots and the people left out are more bitter and turn to crime. In contrast, when everyone's boat is sinking with the economic tide, there is more empathy, less jealousy and hence less crime. Of course none of this has been proven..
Finally, there are theories that smarter, better policing may reduce crime rates. For example, declining crime rates in New York City and Los Angeles are often ascribed to increases in the number of police on the streets, better computers for tracking crime, making precinct commanders accountable for managing crime in their districts, and an aggressive policy of searching people on the streets for guns. To be sure, the latter policy may deter crime, but makes it harder to obtain convictions if the Fourth Amendment is violated. Like many other factors, these claims of improved policing are unproven. Another possibility is that the increased use of very long 3 strikes sentences and federal mandatory sentences have cut back on the recdivist population. But that would not necessarily explain the drop from 2008-2009..
At this point, there is no final answer on what causes crime rates to go up or down..
Obviously with crime rates dropping, 'business' would be slower. But even more so, prosecution rates are dropping not only due to the dip in crime but also because state and local governments are cutting back on police, prosecutor and court budgets. My 'business' is far more dependent on prosecution rates than on crime rates. With the cuts in state and local budgets, another effect is felt: more lawyers without work. And when more lawyers are not employed by others, that means there are more of them competing to defend the shrinking pie of cases prosecuted..
But the bigger question is why are crime rates dropping in a recession? You'd think more unemployed people would mean more theft, robbery and other economic crimes plus more frustration, and perhaps more violent crime as well. Yet crime statistics from the 20th century show that the Prohibition era of the 1920's was far more violent than the Depression in the 30's. Experts do not have many well accepted theories on what causes crime rates to rise and fall. Some scholars have suggested such theories as: greater numbers of immigrants, who tend to keep a low profile; as opposed to this, others assert more illegal immigration increases crime rates; public housing policy dispersing the poor may decrease rates; legalized abortion (so fewer unwanted children are born) may decrease; the crack epidemic in the 1980's was thought to increase crime ; and changes in age distribution--e.g., the baby boom in the late 60's and 70's and the boomlet in the late 80's and 90's effect rates of crime..
The age distribution theory is probably the one most accepted. That is, crime rates tend to flow with the number of young males at a given time; the higher the proportion of young men in the population, the higher the crime rates since young men are by and large the biggest group of offenders. In fact, there is no strong statistical correlation between stricter law enforcement and longer sentences and the rise and fall of crime rates. See: http://www.psychologytoday.com/blog/the-scientific-fundamentalist/200808/when-crime-rates-go-down-recidivism-rates-go This just serves to show that politicians who emphasize 'law and order' as an issue may be just blowing smoke..
One interesting theory on why crimes rates might decline during a recession is it pulls families together, and this cohesion inhibits crime. More young people may move back home and are less influenced by their impulsive peers as well. There is also less economic activity in a recession so there is less interaction and opportunity for crime. Ironically, crime rates went up during the prosperity of the 1960's and one theory is that with rising wealth, the havenots and the people left out are more bitter and turn to crime. In contrast, when everyone's boat is sinking with the economic tide, there is more empathy, less jealousy and hence less crime. Of course none of this has been proven..
Finally, there are theories that smarter, better policing may reduce crime rates. For example, declining crime rates in New York City and Los Angeles are often ascribed to increases in the number of police on the streets, better computers for tracking crime, making precinct commanders accountable for managing crime in their districts, and an aggressive policy of searching people on the streets for guns. To be sure, the latter policy may deter crime, but makes it harder to obtain convictions if the Fourth Amendment is violated. Like many other factors, these claims of improved policing are unproven. Another possibility is that the increased use of very long 3 strikes sentences and federal mandatory sentences have cut back on the recdivist population. But that would not necessarily explain the drop from 2008-2009..
At this point, there is no final answer on what causes crime rates to go up or down..
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