Law Blog

After an argument with his family, Paul Amelio got in his car and sped off. His daughter called the police and said he was drunk. She gave them her name, her address, and her phone number.  Police responded, saw a car matching the daughter’s description of Mr. Amelio’s, and immediately pulled him over. He was arrested for DUI.

Why is this news? In California and many other states where an anonymous tip is enough to pull someone over for a DUI, it wouldn’t be. This would be more than enough to convict Mr. Amelio. In New Jersey, however, they apparently have a fairly more enlightened understanding of 4^th amendment law; even a non-anonymous tip warranted an explanation from the state’s highest court for why the government’s interests won out here.

This is because an anonymous tip, without anything else, usually doesn’t provide the reasonable suspicion necessary to detain someone.  According to many state courts, however, DUIs are so dangerous that your freedom from unreasonable search and seizure goes out the window if anyone suspects you of driving drunk. My apprehension of driving on a road with you trumps your 4^th amendment rights, essentially.

This is wrong. There should be nothing precluding an officer from being able to at least corroborate the anonymous tipster’s evidence that the driver was intoxicated by watching his or her driving. If the tipster can see the guy driving erratically, shouldn’t an officer trained in detecting signs of intoxication be able to confirm these allegations? Does this extra 15 seconds of allowing the suspect to drive needlessly put other lives at risk? Well, if the driver is driving so erratically that such a length of time would actually be dangerous, wouldn’t that be apparent rather quickly?

Every fact pattern is different and it is difficult to make blanket rules that cover every potential issue involving 4^th amendment rights. What is troubling is the gradual chipping away of our personal liberties in the interests of public safety. A truly liberal country-and I am not using the term “liberal” in the political left/right sense-errs on the side of personal liberty over government intrusion. I detest the slippery slope argument as much as anyone else, but where do we draw the line between the government ensuring the safety of others and our own personal freedom? How much power are we willing to put in the hands of police to protect public safety?

Pulling someone over for suspicion of DUI is not an ordinary traffic stop- you are under the suspicion of committing a serious offense. You will be investigated. You will probably be ordered out of the car and possibly patted down. You may be “asked” to let the officer search your car. I don’t think that requiring identification or some kind of corroboration-even the most trivial-is asking for very much here. No one wants to be driving on a road with drunk drivers; then again, no one wants to be detained and searched on the capricious whim of anyone with a grudge. Which one is more dangerous?

Recently, the U.S. Supreme Court refused to weigh in on what kinds of “victim impact” evidence is admissible in trials where jurors are deciding whether to impose the death penalty. The High Court refused to hear two appeals challenging the use of videos documenting victims’ lives and how their deaths have affected loved ones.  For example, in one case at issue, the victim’s mother narrated a 20-minute video set to the music of Enya, which included dozens of photos and video clips depicting the victim’s life. 

The Court hasn’t opined on this subject since the 1991 case of Payne v. Tennessee, in which it held that testimony showing a crime’s impact on the victim’s relatives and other survivors was admissible in the sentencing phase of capital cases.  In Payne, the Court set forth vague guidelines, stating:  “in the event that evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief.”  The California Supreme Court has issued this advice:  trial judges should be “very cautious” when allowing such evidence, and “irrelevant background music” should not be used. 

Some argue that video impact statements merely even the playing field for victims.  They claim that such evidence merely humanizes victims, and gives a voice to survivors who are uncomfortable testifying at trial in front of the defendant and others. 

While victim impact videos definitely have the potential to elicit sympathy from jurors, they can also be unfairly prejudicial to defendants; further, they often serve no legitimate purpose.  Should the decision to impose the death penalty be based on reason rather than emotion?  If yes, do victim impact statements aid that purpose?

Justice Stevens warned that “when victim impact evidence is enhanced with music, photographs, or video footage, the risk of unfair prejudice quickly becomes overwhelming. While the video tributes at issue in these cases contained moving portrayals of the lives of the victims, their primary, if not sole, effect was to rouse jurors’ sympathy for the victims and increase jurors’ antipathy for the capital defendants.”  And as Justice Breyer stated:  “The videos added nothing relevant to the jury’s deliberations and invited a verdict based on sentiment, rather than reasoned judgment.”

Every state that imposes the death penalty allows victim impact evidence to be presented during the sentencing phase of murder trials; however, without uniform standards, courts across the nation will inevitably impose different standards — some allowing highly emotional videos set to music,and produced by Steven Spielberg; others permitting only bare-bones testimony.  A defendant’s punishment should not depend upon how likable the victim was or how skilled the filmmaker is.  The High Court should set clear standards so victims and defendants across the nation get an equal shot at justice.

The easiest blog title ever, because that’s actually the name of the show. Yes, Fox has sunk to even deeper depths of the bottomless sink hole known as reality TV. According to Fox executives, the show treats the audience to a reverse “Punk’d”:

“Instead of the worst day of your life and then a joke at the end, this is the reverse. This is the best day of your life, and then we arrest you.”

Excellent! The Austin Criminal Defense Lawyer sarcastically points out that Fox will only target non violent offenders for these “hilarious” sting operations. I agree with his skepticism. What is a non-violent offender? A guy that missed jury duty? A jaywalker? Someone with one too many parking tickets?

Fox executives are good at one thing, and that is sensationalism. I doubt their focus on non-violent offenders has anything to do with thinking they deserve it more than others; instead, they probably want to avoid the danger inherent in prank-arresting someone with a violent felony history or problems with aggression.

To add insult to injury, (or if you are a Fox executive, to make the show even better) Fox has tapped Maricopa County Sheriff Joe Arpaio as the show’s host.

For those of you who are not familiar with Joe the Sheriff, let me introduce you. Sheriff Arpaio’s accomplishments in Maricopa County, Arizona include making inmates march in pink underwear, creating a tent city jail in Arizona’s 110 degree heat to deal with overcrowding, creating juvenile chain gangs to bury the dead of local indigents, being sued over 2,000 times in federal court, and costing the state of Arizona over $40 million in legal fees over the course of his tenure.

Yes, that Joe Arpaio.

This show joins the already extremely pro-police and pro-prosecution culture of victimization and fear instilled on television viewers by shows such as Cops. This authoritarian mindset is exactly the kind of culture that allows people like Sheriff Joe Arpaio to not only get away with rampant prisoner abuse, but become wildly popular because of it. Everyone suspected of a crime is a bad person and deserves everything coming to them, due process (and human rights) be damned. Unfortunately, very few are able to see anything wrong with this until they wind up on the wrong end of the law.

In early November, Vincent Romero and his roommate Timothy Romans were found shot to death in Romero’s Arizona home.  Police have charged Romero’s eight-year-old son with two counts of first-degree murder, and are relying heavily on a videotape in which the boy confessed to the homicides without his mother or lawyer present.  The boy’s attorney argues that the confession was coaxed, and a number of child psychology experts have questioned its reliability as well. 

The interview shows the boy changing stories, and talking calmly to investigators about the incident.  About forty-five minutes into the hour-long interview, he claims that an unidentified assailant shot both men, and that he later shot them in order to end their suffering.  

Child trauma experts have long-asserted that children are often unreliable witnesses: they may make up elaborate stories, confess to crimes they did not commit, or deny committing crimes when they are in fact guilty.  Children exhibit this behavior because their brains haven’t fully developed, they cannot make complete sense of questions, and they often feel pressured to answer in a way that they believe will please the adult interrogator.  When children are not accompanied by a parent or guardian, they are especially likely to give unreliable answers as they feel more vulnerable and less confident.

Under Arizona law, children are generally considered to lack the competency needed to be charged with homicide.  In this case, however, police are charging the boy with double homicide due to the exceptional facts and circumstances. 

In addition, it’s unclear whether the boy is legally competent to stand trial.  In order to be deemed competent, a child must be able to comprehend his rights and the consequences of his decisions; in addition, he must be able to participate meaningfully in his defense.  Given these criteria, are eight-year-olds ever competent to stand trial?

If a court-appointed psychologist finds that the boy is not competent, and he cannot be rehabilitated within nine months, Arizona law mandates that the charges must be dismissed.  The state would then have the option of seeking to have the boy committed in civil proceedings.

In this case, the prosecutor is attempting to put one of the homicide charges on hold until boy turns 15 and can be tried as an adult.  If this tactic works, instead of facing juvenile detention until age 18, the boy will face life in prison without the chance for parole. 

Given the severe consequences this boy may face, along with the unreliability of his confession and questionable ability to stand trial, the state should definitely be required to present more concrete evidence that he is indeed guilty.

A professor and a law student at the University of Michigan were recently arrested for prostitution, according to Above the Law. The professor discovered the law student’s services online via Craigslist, and in his own words, “was interested in experimenting sexually.” Apparently the Professor’s ideas of experimentation involved slapping people in the face, because this is what the law student/sex worker reported to police after their brief hotel encounter.

When the law student complained to the police of the attack and the subsequent vision problems she had because of it, she was arrested. The professor was also arrested, and both ended up pleading to the lesser offense of using a computer to commit a crime. What is troubling here is not only the possible chilling effect that arresting a sex worker complaining of abuse may cause in the future, but the comment by an Ann Arbor detective about the case:

“Perhaps she should have cracked a legal textbook before coming in to the police station to talk about this,” Ann Arbor Detective Sgt. Richard Kinsey said. 

Wow. Really? What conclusion should she have come to? That what she did was illegal, and therefore the fact that she was the victim of a battery is irrelevant? I guess that according to Sgt. Kinsey, if you are the victim of a crime, don’t bother coming to the police if you are also a prostitute.

Sex workers are not only routinely abused, they are often the victims of much more serious crimes like human trafficking and slavery. When sex workers are arrested and publicly ridiculed for coming forward about crimes perpetrated upon them, law enforcement makes it much easier for these far more serious crimes to continue unimpeded. Then again, leave it up to a naïve law student to think that the police are there to actually protect you, or uphold the law in any way.

Predictably, commenters on ATL (at least the ones who appear to be more than 3 years old) focused on the actions of the law student here. This brings up another issue: the criminal justice system’s general preoccupation with the sex worker and not the client in prostitution cases. Indeed, according to FBI national statistics for prostitution, almost 70% of prostitution arrests were of females. (The FBI definition includes solicitation). Why are so many more Janes getting arrested than Johns? Are they easier to arrest? Is this just old fashioned sexism? Maybe if more people were “cracking legal textbooks,” we wouldn’t have so many prostitution crimes, right Sergeant?