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  • How do you define “reasonable suspicion” and “probable cause”?

    It’s not easy. Trust me. And I was cop, have a PhD, and teach criminal justice. United States v. Humphries, (4th Cir. 2004):

    The Supreme Court has repeatedly admonished that the standard for probable cause is not “finely tuned” or capable of “precise definition or quantification into percentages.”

    Well that’s not helpful. But yeah, it’s a bit unfair to overly fault cops for not meeting a definition you can’t define.

    But, uh, what is probable cause. I’m telling you there’s no answer. But a working definition I’ve used and cops will know (“reason to believe…”) is actually not that good because “reason to believe” implies more than 50/50 chance. It’s less than that! Dig this, from US v. Humphries (4th Cir. 2004):

    Similarly, we have stated (United States v. Jones, 1994) that the probable-cause standard does not require that the officer’s belief be more likely true than false.

    Well, damn. That was sort of news to me. (Which is why I’m posting this.)

    So less than 50 percent is clear. And “reasonable suspicion” is clearly (though only partially) defined as “less than probable cause.” So we’re talking a pretty low bar here. But I mention in terms of the low “hit rate” cited in the DOJ Report. What’s good enough? 10 percent? 25 percent? It depends. But if the hit rate gets anything close to this level, you can’t argue there’s prima fascia evidence of unconstitutional policing.

    And the argument that arrests are bad because charges are dropped? It’s absurd. Along with bureaucratic BS (prosecutors march to a much different drummer than cops), the standard for conviction is “beyond a reasonable doubt.” The standard for arrest is “probable cause” (which isn’t even “more likely true than false.” So of course good legal arrests will be dropped.

    On top of that, most low-level offenses are abated by arrest. You don’t actually prosecute people for loitering and trespassing on a stoop. A loitering arrest isn’t bad because it’s not prosecuted. It’s never prosecuted. And for such minor offenses, officer have pretty low motivation to write a good report, since it really just doesn’t matter.

    [In my intro classes, I just want students to know that “reasonable suspicion,” based on Terry, is the legal standard to justify a stop and/or frisk; probable cause, based on the 4th Amendment, is the legal standard needed for a search or arrest. And even this is a tough sell.]

    [Thanks to somebody else for all the research and some of the writing here]

  • Shooting at a moving vehicle

    Great (and thus rare) legal discussion by Whet Moser in Chicago Magazine: “Why It’s Legal for Police to Shoot at Someone During a Car Chase: CPD officers who shot at Paul O’Neal may have violated procedure, but Supreme Court decisions set a high barrier for legal liability”:

    Perhaps the law could evolve. Police departments are trying to limit high-speed chases, but right now the Supreme Court precedent is pretty clear. That alone doesn’t eliminate the possibility that, as Moskos suggests, that criminal charges could be filed. But as Steve Bogira pointed out after another shooting—in which an officer shot 16 times into the wrong car, nearly killing one of its occupants, leading to IPRA’s first recommendation that an officer be fired—criminal charges are incredibly rare. The case law surrounding deadly force and car chases would seem to make the possibility in this case rarer still.

  • All charges dropped against the Baltimore Six

    Marilyn Mosby said she is dropping all charges against the six Baltimore Police officers in the custody death of Freddie Gray. In the press conference she sounded like a petulant child who was caught out doing bad, and so blames everybody else instead. “Systemic issues,” she said. I think a voice of humility, noble humility, might have served her better. But then she’s not trying to get my vote.

    Former commissioner Batts, who lost his job over all this, was against criminal prosecution (or so went the rumor, now confirmed by Batts), hit back strongly against Mosby:

    “She’s immature, she’s incompetent, she’s vindictive and that’s not how the justice system is supposed to work.”

    Come on Anthony, tell us what you really think.

    “The justice system is supposed to be without bias for police officers, for African Americans, for everyone…. Don’t create more flaws in that broken system,” he said. “And you don’t do it on the back of innocent people just to prove that point.”

    OK. Remember, this is coming from a black chief who basically once called the entirety of Baltimore’s black police officers a bunch of Uncle Toms.

    And Batts continued:

    “There was no question that Freddie Gray should have gone home after that interaction. But sometimes when people are doing the job of police work, bad things happen sometimes.”

    …

    “My heart bled for these officers as they went through these steps. I think Marilyn Mosby is in over her head… I didn’t see any malice in the heart of those police officers. I don’t think those officers involved are those you would put in the class of bad or malicious or evil police officers.”

    Batts said Mosby cannot make police her scapegoat by saying officers obstructed her investigation to protect their colleagues. “There was no obstruction,” Batts said. “I would have taken off anyone’s head if I knew they were obstructionist. … The judge said it: (The case) didn’t have merit and you can’t put that on anyone else.”

    Here’s my question, what changed in the past few days that led Mosby to her decision. She could have announced this weeks ago. But she did so today. So something changed. Despite her solace in prayer, I don’t think it was God telling her. Does anybody know?

    Two ideas:

    1) Word came from the top, perhaps the top of the Democratic party, perhaps via the mayor, Stephanie Rawlings-Blake, who is secretary of the national Democratic Party. Rawlings-Blake defendedthe judge and said she “certain [does not] agree” with Mosby’s comments disparaging the criminal justice system.

    Now Mosby is an independent elected official. Does she know it’s not normally wise to fight city hall?

    I like this theory more:

    2) Perhaps the new prosecuting team said they didn’t want to move forward. The whole State’s Attorney’s Office is facing lawsuits related to unethical prosecution. And the charges, whether they’re proved or not (I kinda doubt they will be) are not groundless. If you’re a lawyer, perhaps you really do have objections to prosecuting a groundless case. You certainly should. But even if not, why would you want to open yourself up for hassles, lawsuits, and potential disbarment in a losing case?

    Now we’ll see how the internal discipline process works out. I’d love to be a fly on the wall of Commissioner Davis’s office for these discussions.

  • Utah v. Strieff: The not so poisonous tree

    The branches of the poisonous tree got pruned a bit. The Supreme Court says that if a cop makes a kinda illegal stop — “mistaken” is the word the Court uses — and then arrests the person after a warrant check, and then finds drugs in a post-arrest search, the drugs are admissible in court.

    This might seem to go against the “fruit of the poisonous tree” doctrine. Because it does. It would have been so easy for the Court to say the stop wasn’t based on reasonable suspicion — even my intro students understand the “fruit of the poisoned tree” doctrine — and just leave it at that. This decision muddies a simple rule for cops: don’t stop people without reasonable suspicion.

    Before the decision, and after Scalia’s death, some on the Left gleefully predicted :

    The era of conservatives merrily hacking away at Fourth Amendment safeguards appears to be over. And Sotomayor’s aggressiveness on Monday suggests that, in the long run, she believes her side has the winning hand.

    Nope. Not yet. Sotomayor was on the losing side of 5-3 decision. Scalia would have made the vote 6-3.

    The facts are this:

    Based on an anonymous complaint, Officer Fackrell was surveilling a suspected drug house on-and-off for a few hours over a week. He sees different people going in and out quickly, signs of repeated drug transactions. Something is fishy, but he’s seen worse. He stops one guy who leaves the house a block away to “find out what was going on [in] the house” and “what [Strieff] was doing there.” This could have been good legit police work. Except Fackrell did not articulate “reasonable suspicion,” the required (albeit somewhat vague) legal standard needed for stop. Nor did Fackrell ask Streiff. He “stopped” Strieff; Streiff was not free to leave. And for that you need “reasonable suspicion.”

    Reasonable suspicion (Terry v. Ohio) is not a high standard — just more than a hunch — but for whatever reason the court assumed (without deciding, because the state conceded the point) that there was no reasonable suspicion.

    The court found the illegality of the stop borderline. A “mistake” but not any “flagrantly unlawful police misconduct.” Reasonable people can disagree, and I think the Court is wrong here. But I’m thrilled any time the Court acknowledges the gray in policing.

    Maybe there was reasonable suspicion. I strongly suspect I could have articulated reasonable suspicion for this stop. What do I mean? Reasonable suspicion isn’t something that just is or isn’t. It’s a concept police have to articulate in writing. And some cops write better than others.

    Maybe Strieff looked like a tweeker. (Because he was.) Describe why. What did he do that was suspicious. Frackrell didn’t note when Strieff went into the house. So maybe Streiff spend the night as an airbnb guest or something. I doubt it. And Frackrell doubted it. And Officer Frackrell was right, of course. But being right doesn’t make it legal. You have to articulate this and more to build reasonable suspicion. Or maybe there was another legal reason to stop Strieff. Maybe jaywalking. You can make a pretextual pedestrian stop. Apparently Frackrell didn’t. So even if it could have been a legal stop, turns out it wasn’t.

    The Court has been having second thoughts about the “fruit of the poisonous tree” doctrine — evidence obtained illegal can’t be used — for a while now:

    The significant costs of this rule have led us to deem it “applicable only…where its deterrence benefits outweigh its substantial social costs.”

    [I don’t buy the “substantial social costs” argument. Guilty people get away with murder all the time. A few more junkies not pleading guilty to minor drug charges? I can live with that.]

    Here are the legal issues:

    There are four exceptions to the fruit of the poisonous tree doctrine: independent source, inevitable discovery, good faith for search warrants, and the attenuation doctrine. Of course the latter one, the hardest to understand, is the one that matters here.

    The attenuation doctrine. Honestly, I don’t have an opinion on the attenuation doctrine. How could I? I didn’t know it existed until a few hours ago.

    It means:

    Evidence is admissible when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance, so that “the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained.”

    I’d paraphrase that, if I could.

    The court accepts there was no attenuation in space or time (standards from the 1975 Brown v. Illinois). Point to Strieff. But — and I think this is a bit of a stretch — but pay attention because this is the key:

    The outstanding arrest warrantfor Strieff’s arrest is a critical intervening circumstance that is wholly independent of the illegal stop.

    They combine that with the fact that “Officer’s Frackrell’s illegal stop [wasn’t] flagrantly unlawful police misconduct.”

    This is not like if a cop had made an illegal search and then found drugs in that search. That would be no attenuation and thus unconstitutional. This was an almost legal stop, says the Court, and a warrant is a warrant and there’s nothing wrong about search incident to arrest. It may be the wrong conclusion, but it’s not crazy.

    Justice Sotomayor is getting the headlinesfor her passionate dissent. In her over-reaching writing, she seems to be picking up where Scalia left off. But what I fear is that Sotomayor’s passionate dissent — you might say a bit off the deep-end — will actually serve to expand the impact of the decision she doesn’t like. Sotomayor’s interpretation may become a self-fulling prophecy. If this case is remembered, it will probably be for her dissent:

    Do not be soothed by the opinion’s technical language: This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants — even if you are doing nothing wrong.

    That is certainly not what the decision says. That is certainly not what happened in the case in question. But Supreme Court cases are usually remembered in very brief summaries. The details of the case get lost to time. Terry v. Ohio? Reasonable suspicion, stops, & frisks for officers’ safety. Lost over time are the circumstances so well articulated by Detective McFadden.

    Sotomayor’s issues go far beyond this stop and this reasonable suspicion to the very heart of proactive investigatory policing. Yes, people stopped by police get checked for outstanding warrants. Is that bad? Sotomayor thinks so. She continues:

    We must not pretend that the countless people who are routinely targeted by police are “isolated.” They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere.

    Whoa.

    What bothers me about Sotomayor’s dissent is her implication that people with arrest warrants shouldn’t be stopped and arrested by police because so many people are wanted on warrants. Warrants are issued to quickly for bullshit like unpaid fines. But take that up in a separate case. If a judge issues a warrant, the cop’s job is to get that person to the judge. End of story. Probable cause of a crime has already been established by a judge. You’re supposed to arrest people with warrants. That’s why we call them arrest warrants!

    The majority decision, written by Thomas, tries to keep thing narrow:

    Officer Fackrell’s purpose was not to conduct a suspicionless fishing expedition but was to gather information about activity inside a house whose occupants were legitimately suspected of dealing drugs…. This was not a suspicionless fishing expedition ‘in the hope that something would turn up.’

    Sotomayor will have none of this:

    The warrant check, in other words, was not an “intervening circumstance” separating the stop from the search for drugs. It was part and parcel of the officer’s illegal “expedition for evidence in the hope that something might turn up.”

    In this case Sotomayor is wrong. But in general, at least from my experience, she is right. Terry frisks may be needed to find weapons, but they’re used much of the time to find drugs.

    In Strieff, the Court says that drugs are admissible if found incident to arrest, after a warrant check, after a stop (that may have sort of been justified, but…) for which there was not reasonable suspicion. It might be the wrong decision, but it’s not as far reaching as Sotomayor would have you believe. It least I hope not.

    I don’t think the exclusionary rule should be chipped away. But this wasn’t a crazy stop. This wasn’t a malicious stop. This wasn’t an illegal arrest. This probably could have been a legal stop. But, as argued by the state, it wasn’t. That is was the Court should have ruled on. I’d have signed off with the other dissent, written by Kagan and Ginsburg.

    Nobody will remember Streiff as a stretch of the “attenuation doctrine.” Hopefully, Sotomayor’s dissent not withstanding, nobody will remember this case at all.

    [For a more legally knowledgeable (but still very readable) interpretation, see Orin Kerr’s poston Scotusblog.]

  • 10-32. They’re all going to be acquitted.

    I’m calling this trial for the defense. Now I’m only following on twitter, so take this with a grain of salt, but the trial of Goodson — the most culpable of the officers on trial for the death of Freddie Gray — is not going well for the prosecution. Judge Williams told the defensethat they may “truncate their case.” The defense filed a written motion for judgment of acquittal. (Doing so in writing is unusual.) Such a motion is rarely granted, and this case is probably no exception, but think about it: how can you tell the defense to “keep it short” if there’s a chance you’ll decide for other side?

    The prosecution called Neill Franklin, my old police academy commander, co-author, and co-believer in ending the drug war. The prosecution paid Neill to testify as an expert witness regarding “rough rides.” He didn’t know much about them. What cop would?

    Franklin did get busted for not knowing his 10-codes, which I find kind of funny. Now 10-codes are city specific and Franklin, in his defense, was never a street cop in Baltimore and has competing 10-codes to account for. But he was responsible for the department (Education and Training) that taught 10-codes. Franklin was brought in as an expert witness in “general orders, policies and procedures.” Well, in that case you should know your local 10-codes. I still know my 10 codes (admittedly, I’m a bit rusty on ones I probably never knew, like “request animal shelter.”)

    What are 10 codes? Think 10-4. You know what that means. Well there are a few others. Along with the “signal and oral codes,” Baltimore City has 10-6 (wait), 10-9 (repeat), 10-11 (meet me at… which, if used on a call, is a non-emergency call for more officers), 10-14 (wagon), 10-15 (emergency wagon), 10-16 (backup, but means emergency backup, and is less than a balls-to-the-wall “Signal 13”), 10-18 (shift is over!), 10-20 (location), 10-23 (arrived on scene), 10-29 (records check), 10-30 (wanted, but I hope some cops still use “thirty-dash-one” without knowing what it refers to), 10-31 (in progress), 10-32 (enough units on scene, ie: stop contributing to the clusterfuck), 10-33 emergency. And maybe since last year codes like 10-34 (civil disturbance) and 10-90 (looting) entered the Baltimore 10-code lingua franca.

    Now keep in mind these 10-codes are Baltimore City specific. And the fact that there isn’t a standard list of 10-codes (except 10-4, and 10-20 always means location) makes them not only useless but potentially dangeriou, especially when disaster strikes and you need inter-agency communication. There’s a justified movement to move away from 10-codes and go to plain English.

    That said, there is something efficient and clear about 10 codes. That is worth something. Also, they’re kind of fun.

    So Franklin didn’t know 10-15. That doesn’t look good for an expert on Baltimore arrest procedure. But the former major in charge of the police academy would have basically zero dealings with prisoners or prisoner transport; Maryland state police don’t use wagons. He did testify that seatbelting does not ensure an individualis secure and that it’s possible for prisoners to unseatbeltthemselves.

    Now Franklin’s job (yes, expert witnesses are paid) is not to do what the prosecution says or help any side. His job was to come to court, be put on the stand under oath, and answer questions honestly to the best of his abilities. He did that. That he didn’t help the prosecution is not his concern. But it is a problem for the prosecution. A big problem.

    There’s this:

    If Franklin really is the best witness prosecution can call in the least weak case the prosecution has? Well, that’s why I say it’s over.

  • Officer Nero Acquitted on all Charges

    Good. Judge Williams used the law. There was no case. I don’t find this surprising. But then I’ve learned to be surprised by these absurd trials.

    And I was speaking to a friend here in New Orleans who, naturally, assumed the officers are guilty. She hadn’t read my primer and had no idea this trial had nothing (except politics) to do with Freddie’s death.

    Judge Williams ruled that Nero had nothing even to do with Freddie Gray’s arrest.

    Update: I generally discount the “anti-cop mainstream media” hype you hear from a lot of people. But I just received a call from a station out west and told them what I thought about the verdict. I was told, “I totally agree with what you’re saying, but we’re looking for a more ‘agnostic’ guest.” I’m not sure whether “agnostic” mean ignorant or biased. But facts be damned, they won’t be satisfied until they get “both” sides of this story equally represented. It’s how false narratives are built.

  • Make misdemeanors great again!

    Shoplifting has gotten a boost in California. From the AP:

    Shoplifting reports to the Los Angeles Police Department jumped by a quarter in the first year, according to statistics the department compiled for The Associated Press. The ballot measure also lowered penalties for forgery, fraud, petty theft and drug possession.

    …

    The increase in shoplifting reports set up a debate over how much criminals pay attention to penalties, and whether law enforcement is doing enough to adapt to the legal change.

    It’s so rare (but more common than many people admit) to see good direct cause and effect in criminal justice. My general belief is that people don’t give a damn a potential penalty and instead commit crimes when they think they won’t get caught. But I could be wrong.

    I remember a conversation on the street, back when I was a cop. From my notes:

    Had a weird talk with a guy who was suspected of pointing a gun out a car window. No gun was found. The guy said, “I don’t have a gun, I’m a convicted felon!” I asked him for details. He said he did strong armed robbery, no weapon involved other than hands, got four years.

    I said, you didn’t do that in Baltimore, cause you won’t get 4 years for yoking [unarmed robbery] in the city. Turned out it was in the county. He said the max was seven years. He was expecting 2 years for a four year crime: “I wouldn’t have done it if I knew it was seven years.”

    Let me get this right, you’re saying you weighed the severity of the punishment with the how-useful-is-the-crime?

    “I always weighed the punishment…. I was [also] copping for others, but they didn’t send me any commissary money. Fuck that, if they won’t look after me…. So now I’m trying to go straight.”

    Back in California:

    Prosecutors, police and retailers … say the problem is organized retail theft rings whose members are well aware of the reduced penalties.

    “The law didn’t account for that,” said Capt. John Romero, commander of the LAPD’s commercial crimes division. “It did not give an exception for organized retail theft, so we’re seeing these offenders benefiting and the retailers are paying the price.”

    On the other hand:

    Adam Gelb, director of the public safety performance project at The Pew Charitable Trusts, disputes those sorts of anecdotes.

    …

    His organization recently reported finding no effect on property crimes and larceny rates in 23 states that increased the threshold to charge thefts as felonies instead of misdemeanors between 2001 and 2011. California raised its threshold from $400 in 2010.

    “It’s hard to see how raising the level to $950 in California would touch off a property crime wave when raising it to $2,000 in South Carolina six years ago hasn’t registered any impact at all,” Gelb said.

    My first thought is that seems like ideological wishful thinking. It might be hard to want see how… but you can try harder.

    But here’s what I don’t get. Why can’t police investigate serious misdemeanor? (Hell, in Baltimore they’re putting cops on trial for minor misdemeanors.)

    The article concludes:

    For his part, Lutz, the hobby shop owner, has provided police with surveillance videos, and even the license plate, make and model of the getaway vehicles.

    “They go, ‘Perry, our hands are tied because it’s a misdemeanor,’” Lutz said. “It’s not worth pursuing, it’s just a waste of manpower.”

    But why should a legal and semantic redefinition “tie police hands”? Police could investigate; they are choosing not to investigate because the crime — with the same dollar amount as last year — has been redefined a misdemeanor. That’s more a police choice. And maybe it’s not the right one.

    [Though in some states (I don’t know about California) the rules are different and many misdemeanor crimes need to be viewed by a cop for a cop to make an arrest. That said, shoplifting is an exception.]

    Leaving aside the specifics, I think more felonies should be misdemeanors. Misdemeanors are crimes, too. These days almost everything can be a felony, and that’s not right. Felonies are supposed to be life-changing citizen-disqualifying kinds of crime. Not run of the mill drugs or non-violent theft. Maybe sometimes people should get a year for a serious misdemeanor instead of a PB&J (probation before judgement).

    Of course the prosecutor plays a big role, too. If misdemeanors don’t get prosecuted, there’s little point in making an arrest. The problem isn’t that a serious crime is only a misdemeanor; the problem is we don’t take misdemeanor’s seriously.

  • Illinois v. Wardlow (2000), the Good Parts Version

    For all ya’ll too lazy to read Illinois v. Wardlow (2000), here is the key part that relates to the constitutionality of chasing suspects who run from a drug corner. The Freddie Gray scenario is almost exactly similar to Wardlow. (I’ve selectively bolded and also removed the citations, but you can click through for the court cases and such):

    In Terry v. Ohio, we held that an officer may, consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot. While “reasonable suspicion” is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence, the Fourth Amendment requires at least a minimal level of objective justification for making the stop….

    [Officers were] converging on an area known for heavy narcotics trafficking, and the officers anticipated encountering a large number of people in the area, including drug customers and individuals serving as lookouts. It was in this context that Officer Nolan decided to investigate Wardlow after observing him flee. An individual’s presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime. But officers are not required to ignore the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation. Accordingly, we have previously noted the fact that the stop occurred in a “high crime area” among the relevant contextual considerations in a Terry analysis.

    In this case, moreover, it was not merely respondent’s presence in an area of heavy narcotics trafficking that aroused the officers’ suspicion, but his unprovoked flight upon noticing the police. Our cases have also recognized that nervous, evasive behavior is a pertinent factor in determining reasonable suspicion. Headlong flight — wherever it occurs — is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such. … The determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior. We conclude Officer Nolan was justified in suspecting that Wardlow was involved in criminal activity, and, therefore, in investigating further.

    Such a holding is entirely consistent with our decision in Florida v. Royer, where we held that when an officer, without reasonable suspicion or probable cause, approaches an individual, the individual has a right to ignore the police and go about his business. And any “refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure.” But unprovoked flight is simply not a mere refusal to cooperate. Flight, by its very nature, is not “going about one’s business”; in fact, it is just the opposite. Allowing officers confronted with such flight to stop the fugitive and investigate further is quite consistent with the individual’s right to go about his business or to stay put and remain silent in the face of police questioning.

    Respondent and amici also argue that there are innocent reasons for flight from police and that, therefore, flight is not necessarily indicative of ongoing criminal activity. This fact is undoubtedly true, but does not establish a violation of the Fourth Amendment.

    It’s rare that one decision so perfectly mirrors a current case. And this makes it all the more absurd that there’s any question about the police officers’ stop of Freddie Gray.

    Also, it’s worth pointing out, as I did in Cop in the Hood, that Wardlow and Terry are both great examples of how those who live in the high-crime ghettos are granted less constitutional protection than those who live in “nice” neighborhoods.

    Police in a poor black neighborhood can (legally) get away with things that would never fly in a nice part of town. There is is a different constitutional standard based on geography and crime (and hence race). Of course people aren’t running from drug corners — or shooting each other so much — in neighborhoods without public drug dealing. Crime and “commonsense judgements” do matter. But at some level it’s still kind of messed up. It reminds me of Anatole France’s famous line: “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.”

  • “What messy justice looks like: After Peter Liang’s killing of Akai Gurley, DA Ken Thompson does the right thing twice”

    Harry Siegel’s excellent column in the Daily News:

    The progressive prosecutor — elected on a promise to salvage Brooklyn justice from the oxymoronic state his predecessor had reduced it to — did the right thing first in holding the cop to account and convicting him before a jury of his New York City peers, and again in recommending that he be let off the hook of incarceration.

    The whole system failed here: in the screening that let Liang join the force in the first place and the Academy “training” that left him certified in but never actually taught CPR; in the lousy NYCHA buildings where stairwells are blacked out and elevators broken down, where the good people who live there sometimes need police to help keep common areas safe.

    By recommending no jail time for Liang, Thompson made plain that he wouldn’t make one cop the scapegoat for all that, and for a national conversation about killer cops, too. But by prosecuting him, Thompson made plain that what Liang did, letting off a fatal shot in the dark, was a crime, cop or no cop.

    …

    “A lot of people have trouble getting their heads around this case, because they think it’s like other police shootings and it’s not,” explains John Jay Professor Eugene O’Donnell, a former cop and prosecutor in New York City. “The others are shoot-don’t shoot events, about decisions cops make in one second.

    “That is the obstacle to charging the police, those ‘fear of my life’ shootings. The law of self-defense is extremely favorable to the police — to everybody, actually, as we found with George Zimmerman — but especially the police.”

    None of that, he notes, applies to Liang, and — with no legal leg to stand on — he became the rare cop to ask for a jury rather than a bench trial, perhaps in the hopes that at least one juror would overlook the law and cut him a break.

    One bitter irony: Thompson’s choice not to punish Liang for going to trial highlighted how often other defendants are effectively punished for pleading their innocence. A pound of flesh frequently gets taken in sentencing after a guilty verdict, in part to account for the turmoil a trial puts a victim’s family through but mostly to “pay” for the resources trials demand of prosecutors and police.

    Which is outright un-American, but also at the heart of our justice system as it normally functions. …

    Bottom line: In a complex case fraught with racial politics, Thompson did his job as a minister of justice, holding a cop to account for the fatal consequences of his actions, and trying to find the right measure of justice. …

    And that’s how our justice system should work, for everyone.

  • “They pursue not the truth”

    In case you missed it (I did), here’s some good deep legal analysisfrom Page Croyder regarding the trial of the six Baltimore cops:

    They pursue not the truth, but in the words of Mosby, “justice for Freddie Gray.” And they will trample over the law, the evidence, their ethical responsibilities and real justice to get there.

    Croyder doesn’t like Mosby, in case you can’t tell. And for good reason.

    If the published commentsfrom one of the jurors in the first Freddie Gray trial are accurate, then I was right, wrong, and right again.

    Right that the jurors were close to acquitting Officer William Porter on the most serious count, involuntary manslaughter.

    Wrong that they were close to acquitting him on the other charges as well. In fact, they were very close to convicting him for misconduct in office, and leaned towards conviction for reckless endangerment.

    And right that this trial should have been moved. This hung trial makes it all so clear that the six officers cannot get a fair trial in Baltimore city.

    According to the Sun, Judge Barry Williams instructed the jury that to find Porter guilty of misconduct in office, he had to have acted with “evil motive and bad faith,” that he could not have made a “mere error in judgment,” and that he “corruptly failed to do an a act required by his duties.”

    There was zero evidence of evil motive, bad faith or corruption in performing his duties. Porter acted completely consistently with other police officers. Acting in conflict with a general order does not equate to misconduct, either. If one thinks the police, as a department, act unreasonably in how they transport prisoners, that’s what civil suits are for. But not criminal charges.