Tag Archive for 'police'

Simple Blunder Puts Up to 1,000 California DUI Convictions at Risk

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Driving under the influence of alcohol (DUI) is one of the most commonly-committed crimes in the U.S.

DUI trials are so common that they’re usually the first trials that new prosecutors and defense attorneys are assigned to, because the procedure is usually pretty much the same. In almost every case, a key piece of evidence that the driver on trial was, in fact, drunk is their blood alcohol content (BAC) at the time of their arrest. This is most often determined through the use of a device that can test a person’s BAC in the field, usually a Breathalyzer or similar device.

However, there have always been questions about how accurate and reliable these testing devices are, especially if they are improperly used or maintained. For that reason, police departments have strict rules in place regarding how these devices are stored, maintained, and used. Of course, that doesn’t mean that these rules and procedures are always followed to the letter.

Case in point: hundreds of DUI convictions in San Francisco may have to be thrown out because some officers of the San Francisco Police Department may have improperly tested and maintained the equipment that’s used to conduct BAC tests.

Without going into the details of how the technology behind these devices works (because I don’t fully understand it, either), I’ll provide a basic overview: most devices that measure BAC via a person’s breath need to be calibrated every week or so. Otherwise, they become increasingly inaccurate as time passes. This calibration is done by using canisters of air that contain a known amount of alcohol vapor, which is applied to the testing device. By doing this, you can gauge how accurate the tester’s readings are, and then make any necessary adjustments.

There’s now concern that the police department did not conduct these accuracy checks properly, which means that hundreds of people may have gotten DUI convictions based on bad evidence.

This is a very serious issue, and it’s a bit like the fiasco of the San Francisco crime lab a few years ago. In that case, the drug lab of the SFPD found out that an employee had stolen drugs for their own personal use, and the subsequent investigation revealed widespread evidence tampering.

In this present case, the calibration logs on the BAC detectors showed that they gave perfectly-accurate readings every time they were tested for re-calibration. Given that their accuracy naturally deteriorates over time without regular adjustment, it’s impossible for them to give perfect readings in these regular tests. This indicates that the tests weren’t being done, and the people responsible for testing them simply falsified their logs.

So, everyone who was tested with an inaccurate device was convicted, at least in part, based on bad evidence.

Unfortunately, this is going to be a huge headache for the court system. As many as 1,000 cases, dating back to 2006, will have to be re-opened and investigated all over again.  That’s a problem, since you can’t exactly go back in time and re-test a defendant’s BAC at the time they were arrested.

Many people will probably look at these facts and claim that many convicted criminals are getting off on “technicalities.” And in some way, they may be correct. I would bet that, in the majority of the cases that have to be reviewed, the defendant was actually guilty of driving with a BAC above the legal limit when they were arrested. But if the tests were inaccurate, there’s an excellent chance that a significant percentage of them, even if it’s not a majority, were innocent. Of course, it will largely be impossible to tell which is which. And this is the exact reason why all cases in which the irregularities in the testing devices create reasonable doubt as to a suspect’s guilt should be overturned.

There’s one thing that it’s essential to remember in cases like this: in all criminal cases, even “minor” ones like DUI, the burden of proof rests entirely with the prosecution. The defense attorney could sit at the defense table without saying a word, introducing a single piece of evidence, or calling a single witness. And if the jury found that the prosecution failed to provide enough evidence to convince them beyond a reasonable doubt that the defendant is guilty, the jury has no choice but to find the defendant “not guilty.” It doesn’t matter if they believe that the defendant is “probably guilty,” if they can still entertain reasonable doubt as to that fact.

In most DUI cases, a malfunctioning BAC tester, even if it’s only off by a little bit, could introduce reasonable doubt as to the defendant’s guilt, even if it’s not the only piece of evidence that led to their conviction. In those cases, the only appropriate course of action is to overturn the defendant’s conviction.

And if this means that some people convicted of DUI will escape the consequences of their crime, so be it. That may sound harsh, but the principle that everyone is presumed innocent until proven guilty is one of the basic cornerstones of our legal system. If we abandon this principle, absolutely nothing good can come of it.

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Police Violence Makes A Comeback In The Occupy Protest, ’90s Pleased To Be Remembered

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So . . . that Occupy Wall Street Protest has been progressing nicely, huh?  I’m sure their message of . . . getting rid of injustice and corruption and greed, and, uh, stuff has been coming across well.  Alright, so maybe that part isn’t all that clear, but hey, at least they can turn a few lucky cops in Berkeley into YouTube stars.

Just kidding, I know the protest’s message is a clear one: get rid of corporate influence over the government, start prosecuting the corporate irresponsibility that helped lead us into this global economic crisis, and shorten the wealth gap between the rich and the remaining 99 percent of America.  The problem of course is that like many civil disobedience protest, the message starts to get muddled when it turns into a venue for hipsters to launch another Woodstock.

But I digress.  Back to the point in my intro paragraph, unprovoked and uncalled-for police brutality is the latest icing on the cake to plague protesters.  Other than being a “cheery” throwback to the ‘90s, this latest incident from the protests in Berkeley has got the nation talking about police violence again.  A recent video on YouTube shows student protesters making a stand on the University of California Berkeley campus against campus police (in case you missed them, they’re the ones donning the riot gear and nightsticks).  The protest is going along without a single punch or bottle thrown when all of the sudden the cops turn violent and start beating on the protesters.  And while I think it may be safe to assume that the protester were probably throwing tons of profanity laden criticism at the boys in blue, beating on someone because of mere words is never a justification.  This isn’t the Old West, we have laws.

However, the best part of the video is that it was taken in front of the campus’s law school building BY LAW STUDENTS.  I would think that if you were a cop and planning to crack some heads, the worst place to do it would be in front of a freaking law school full of overzealous law students.

So far though, there haven’t been any cries of lawsuit, but the real shocker is that the UC Berkeley administration seemed to have been aware ahead of time that such police violence would have gone down.  An email was sent out by administrators beforehand that campus police were going to be checking student IDs and possibly forcibly removing protestors from the area.  The email claims the administration has no control over the actions of campus police, so I guess the point of the email was more of a heads up, you might be getting your head smash down.

Now, while I’m not a fan of the mucky spectacle the Occupy Protest has become, no cop has a right to use violence when there is no provocation.  It’s not only wrong on both a moral and ethical level, it’s also illegal.  With that said, you would probably think that this would be a slam dunk lawsuit for any up and coming Atticus Finch to take on.  Well, you’d be surprised.

You see, in most jurisdictions, the laws detailing when police can and cannot use violent are written very broadly, almost vaguely some would say.  They generally state something along the line of police are entitled to use force whenever it is necessary to protect themselves, fellow officers, or the public from imminent harm or danger.  The definitions of what is consider “imminent” and what is “danger” are usually equally broad.  The reason being from a policy standpoint is that the government doesn’t want the police, who are tasked to protect the public, from having to second guess themselves too much in times of crisis.  I guess, this philosophy can be described as the shoot or, in UC Berkeley’s case, beat first and sort it out later rule of policing.

The bigger problem with this type of policy-making of course is that it generally gives a lot of leeway to cops to do whatever they want to control a situation that has the potential of escalating into something worst, like a riot á la 1992 Los Angeles, for instance.  Of course, that one happened, initially at least, because of outrage against an overly lenient verdict for the brutalizing cops, but you get the point.  In any case, the reality of the situation is that despite what some would describe as obvious unprovoked police violence in that YouTube video, many courts and defense attorneys could easily construe as an increasingly loud and unpredictable crowd of protestors ready to tear the school apart.

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Police Lineups Acknowledging Reality: Our Eyes Can Lie

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If you’ve ever seen a crime/police movie, you’re probably familiar with the basic procedure involved in a police lineup. The victim of a crime gives a description of their assailant. Based on this, and other evidence, the police track down a prime suspect. They have the prime suspect stand against a wall, along with several other people with a similar physical description.

The witness hems and haws for a few minutes, before finally pointing out the prime suspect, and the cops have their man.

In real life, however, things work a little differently. People don’t have perfect memories. And while police lineups can be a valuable investigative tool, the human memory is far from perfect. An article in the New York Times points out that courts are finally acknowledging a fact that researchers have known for years: eyewitness accounts are not very reliable at all.

There have been several documented cases of innocent people going to prison based on a witness at a police lineup misidentifying them.

Over the past decades, the process of police lineups has improved significantly. The method was (and sometimes still is) often used haphazardly, with few or no controls to correct for the basic nature of human psychology. Typically, the police would assemble a lineup already having a prime suspect in mind. They would then make it very clear to the witness who this suspect is.

Being in a stressful situation, the witness would probably be highly vulnerable to suggestion. This is on top of the fact that most people are naturally pretty susceptible to suggestion, anyway. Detectives, over time, got very good a “subtly” suggesting to the witness who they liked as a suspect, which usually led to the witness identifying the person the police want them to identify, whether or not they actually remember enough to make such an identification.

In recent decades, however, the process has improved significantly. The Supreme Court has ruled that suspects called to appear in a police lineup have a right to have their attorney present. The attorney can help ensure that the proper procedures (designed to avoid undue suggestion) are followed.

Some large police departments have taken elaborate measures to eliminate suggestion in police lineups. For example, some police departments have employees whose primary job is to oversee police lineups. They are the only people who interact with the witness. They are not told who in the lineup, if anyone, the primary suspect is. In theory this should prevent them from doing anything to influence the witness’s identification. After all, if an officer who’s directly involved in the investigation knows who the primary suspect is, they might subconsciously influence the witness, even if they’re making a conscious effort to avoid doing so.

Another method involves dispensing with “lineups” altogether, and showing the witness a collection of photographs. After all, if a group of suspects are physically present, the officer giving them instructions might speak to the prime suspect in a different manner from the other suspects. Using photographs is a good way to avoid this.

However, according to the Times article, many police departments have not made the necessary reforms, and still rely on outdated lineup procedures.

Part of this is probably due to a lack of funds, and the fact that many smaller police departments probably don’t have to conduct lineups very often, so the benefits of reforming lineup procedures don’t seem to be worth the cost of implementing the necessary reforms.

However, the article points out that most police departments, once they reformed lineup procedure, found that their detectives reacted positively to the changes, despite initial resistance. After all, a process that leads to more accurate witness identifications should make any detective happy.

Hopefully, all police departments will institute commonsense reforms to their police lineup procedure. Besides protecting innocent people being wrongfully convicted (which is, of course, the primary reason why these reforms are needed), they should also benefit police departments and prosecutors, who will have more confidence that they’ve charged the right person based on a witness identification. This should lead to fewer convictions being overturned on appeal, which everyone involved in law enforcement should like.

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West Memphis 3 Release Should Lead to Judicial Reform

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One of the most drawn-out and controversial criminal cases in recent American history may have finally come to a close. By the time this post goes live, the West Memphis 3 will have been released from prison, after serving nearly 2 decades in prison for the murders of 3 boys in West Memphis, Arkansas.

During their trial, the prosecution alleged that the killings were part of a satanic ritual. Throughout the 1980s and 1990s, the United States was gripped by a moral panic over rumors of so-called “Satanic ritual abuse,” claiming that satanic cults were kidnapping and torturing/killing innocent victims, usually children.

Of course, since then, absolutely no real evidence has surfaced pointing to the existence of such cults. Officials from the FBI have confirmed that they have never seen any evidence that satanic ritual abuse has taken place anywhere in the U.S., or that such cults exist, or have ever existed.

In fact, the hysteria over such abuse started because some therapists who engaged in “memory recovery” – a practice resting on the premise that memories can be repressed by traumatic events, and recovered by hypnosis – which has since been completely discredited, and is regarded by all reputable psychologists as pseudoscience.

Meanwhile, back in the world of reality, actual investigators were hard at work on the case of the West Memphis 3. Major advances in forensic science allowed biological samples from the crime scene to be tested for DNA, determining who they came from. As it turned out, there was no DNA from any of the defendants at the crime scene. However, they did find DNA from the stepfather of one of the victims.

Upon the revelation of this evidence, the 3 defendants went to a court asking to be released. The court allowed each of them to enter an “Alford plea,” which allows them to assert their innocence, while acknowledging that the prosecution nonetheless has enough evidence to convict them. They were sentenced to 10 years in prison, but the sentences were suspended, allowing them to go free.

In the intervening years, the case became a rallying point for many different causes, including prison reform, death penalty abolition, and sentencing reform. Because of the apparent high likelihood that the three defendants are innocent, and the seeming intransigence of the justice system in considering new evidence that pointed to their innocence, controversy surrounding the case continued to simmer for the last 18 years.

Personally, I think that the defendants are probably innocent. And even if they’re not, it doesn’t look like the prosecution had nearly enough evidence to prove their guilt beyond a reasonable doubt.

More importantly, however, I think this case has laid bare some serious flaws in our criminal justice system. I should make clear that I believe our justice system is, overall, very good. However, it’s not perfect, and we should constantly strive to identify and mitigate these imperfections.

For example, there is little standardization in how crime scenes are investigated at the local level. In this case, there was immediate and strong criticism directed at the local authorities’ handling of the crime scene, including allegations that a good deal of evidence was lost because the local police didn’t follow fairly basic forensic procedures. This was probably not due to malice. The small local police force simply had no experience dealing with crimes of this magnitude, and probably didn’t even know where to begin their investigation, and even if they did, they lacked most of the necessary resources.

While it might be costly at first, the federal government could play a role in assisting local police forces on this front. They could provide funding to local police departments, specifically for the purpose of improving their forensic science capabilities, in the form of training and equipment. This funding could then be conditioned on local police forces adhering to some minimum standards of competence, enforced via random audits.

Also, we could probably do with some moderate reforms to the jury system. The trial of the West Memphis Three showed that jurors are sometimes susceptible to prosecutorial arguments based on emotion, as well as sensational allegations (such as satanic cults) relating to their cases. Because the constitution guarantees criminal defendants a right to trial by jury, these reforms will necessarily be moderate.

However, I don’t think they need to be radical in order to make the jury system far more effective. While I don’t pretend to have a perfect solution, I think that a few simple reforms, such as placing an emphasis on intelligence and education in jury selection, as opposed to focusing on creating a demographic cross-section of the community, would go a long way.

Some people have proposed using panels of “professional jurors” in complex or high-profile cases. Supposedly, they would have more knowledge about how criminal investigations are conducted, and it would be far more difficult to sway their decisions by appealing to their emotions. While I think that this idea has potential, it also has its share of problems, including a greater possibility for corruption.

In the end, I’m glad that the West Memphis Three are free. Based on the evidence, it seems very likely that they are innocent. However, it’s a shame that it took our judicial system so long to acknowledge that fact. Hopefully, this case still has the potential to serve as a catalyst for reform.

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Legislatures Grapple With New Police Technologies

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My colleague wrote last month about the need for clear guidelines for using “new police technologies,” including GPS tracking darts and x-ray vans. He is not alone. Federal and state legislatures have been taking up this issue, even while courts are in the process of defining the limits of citizens’ Fourth Amendment right to privacy.

As Mr. Rivera noted, tracking devices have been very useful tools for law enforcement. At the same time the tools are invasive and used surreptitiously, raising significant privacy concerns. Still, no one is seriously considering banning any of these devices. The question legislatures are grappling with is whether or not law enforcement should be required to seek a warrant before employing invasive tracking technologies.

Requiring a warrant would be a safeguard rather than an outright prohibition. In order to obtain a warrant, law enforcement officials have to petition an impartial judge (usually magistrate), demonstrating probable cause and limited scope. This process is designed to protect against law enforcement abusing their power. And it increases accountability and oversight.

Despite differences between the various tracking privacy bills being considered, there are some aspects that remain consistent. For example, the bills at the state and federal levels carve out exemptions for emergency situations where, for example, someone is in imminent danger.

One major difference between the bills is whether they allow evidence from unwarranted tracking to be admitted in criminal proceedings. The Geolocation Privacy and Surveillance Act (“GPS Act”), for example, is a bipartisan federal bill that would, in general, make information obtained through unwarranted tracking inadmissible evidence in court. Whereas California’s SB914, designed to limit unwarranted access to cellphone data, would still allow evidence obtained in violation of the bill to be admitted in criminal proceedings.

The difference in how such evidence is handled is not necessarily due to the intent of the bills’ sponsors, however. Rather it is the result of differences in the federal and state evidence codes. As such,  without taking evidence codes into account, we are likely to end up with a patchwork approach to these new technologies, despite the efforts of courts and legislatures try to clarify what are acceptable uses of  new tracking devices.

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