Saturday Links/Open Thread

Saturday, February 7th, 2009
  • The New York Times reports what I think has been apparent for a while now: the conservatives on the Supreme Court are eying a repeal of the exclusionary rule.
  • Scott Henson asks, “Since the state bar won’t discipline them, there’s no criminal sanction for withholding evidence, and the US Supreme Court has ruled that they carry no civil liability, what should happen to prosecutors who cheat to get a conviction?” Good question.
  • Why we need cynics.
  • Another good question: “Why can’t Playboy think about greed the same way it thinks about lust?”
  • Sigh. They grow up so fast. Why, it seems like only last year that we were lamenting that Google was being put in a position where it had to open up a Washington office, just to play defense. Wait. It was last year. Didn’t take long for them to learn how to play offense, did it?
  • MORE: Apologies to Scott Henson for my brain misfire in calling him Scott Horton.

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    40 Responses to “Saturday Links/Open Thread”

    1. #1 |  Stephen | 

      “what should happen to prosecutors who cheat to get a conviction?”

      Many horrible things should happen to them. Drawn and quartered, keelhauling, boiled in oil, crucifixion upside down, or at the least, tar and feathers.

      But I would settle for permanent removal from any such office for the rest of their lives.

    2. #2 |  Michael Chaney | 

      Our famed BART officer has also been released on bail:

      http://www.cnn.com/2009/CRIME/02/07/bart.officer.bail/index.html

      Here’s why I posted, though:

      Mehserle may have intended to draw and fire his Taser instead of his gun, according to a court filing by his attorney.

      As I said before, it’s still felonious assault, as tasering a bound man who’s being sat on by another officer can have absolutely no other purpose than torture.

    3. #3 |  Dave Krueger | 

      I am willing to compromise. In exchange for abandoning the exclusionary rule, police misconduct in obtaining evidence must be punished with summary execution.

    4. #4 |  Dave Krueger | 

      The BART case is just following the traditional strategy used by government to protect cops.

      1. It’s using time in order to get out from under the public’s short attention span.

      2. Pretending to be thorough and forceful as if to say to the public: “We’re as angry about this as you and you can trust us to see to it that justice is served”, all while trying to do their best to protect the officer from the legal consequences of his act.

      3. Using revisionist propaganda to alter the public’s perception of the event, thereby reducing its significance as a target for public outrage.

      There are probably PR firms out there operating under the radar who specialize in this.

    5. #5 |  ktc2 | 

      Any bets the prosecutor “forgets” to prove jurisdiction like in the Kathryn Johnston case? This apparently only happens with cops who are on trial.

    6. #6 |  Cynical In CA | 

      “Since the state bar won’t discipline them, there’s no criminal sanction for withholding evidence, and the US Supreme Court has ruled that they carry no civil liability, what should happen to prosecutors who cheat to get a conviction?”

      There’s really only one thing left at that point.

      Go ask Jim Bell.

    7. #7 |  Cynical In CA | 

      “Why we need cynics.”

      So I’ve got job security, which is nice.

    8. #8 |  Raidsmith | 

      From the NYT exclusionary rule article:

      “Other nations balance the two interests case by case or rely on other ways to deter police wrongdoing directly, including professional discipline, civil lawsuits and criminal prosecution.”

      If anyone can point to a case where an officer faced any of those consequences, that would be something to consider. But police in this country have so much latitude, that it makes that sentence intellectually dishonest.

      Also, the justices are trying to eliminate the exclusionary rule in situations where the police were “careless”. And how do we determine if an officer is being careless or malicious? I’m sure we’ll just ask them. ‘Oh, that was an accident? Good enough for me.’

      They say they need to do this to keep from having “dangerous criminals” set free. But I think everyone knows what sort of “dangerous criminals” will be searched in ways that “carelessly” violates their rights. Because what we really need is more potheads in jail.

    9. #9 |  Cynical In CA | 

      From the blog on Playboy, the blogger quotes the article:

      “’Government’s role should be to focus on economic activities, not personal ones,’ says Mohr.”

      Dios mio. Some people are just so stupid.

      All economic activities are personal. Get this man to an Austrian quick.

    10. #10 |  O. Troll | 

      I think it’s great that the exclusionary rule is about to get repealed. This will result in a safer society where more criminals are convicted. Also no other countries have it, so why should the US? Plus, why should anyone care about the rights of criminals? They are the bad guys. Police are the good guys.

    11. #11 |  Marty | 

      this is like my favorite pol sci professor coming back to haunt me- his rants about Reagan’s scotus appointees ‘gutting the constitution’ (along with the spread of random drug testing), and how govts discredit opposition (the cynics article).

      this is like compounding interest of stupidity…

    12. #12 |  Chris in AL | 

      “what should happen to prosecutors who cheat to get a conviction?”

      What should happen? They are violating our laws and our most basic values. Other prosecutors and our lawmakers should be the first to lead the charge against these people who desecrate our most core beliefs of justice for all and our most fundamental symbol of fairness and innocence until proven guilty, our courts.

      You know, go after them like they just burned a flag!!!!!

      We sit back and play by the rules. Trying to use or legal means to influence our government, through elections, our representatives and expressing our opinions on issues like this. And they smile and nod while miming the ‘jerk-off’ motion under their desk.

      What is a populace supposed to do when the government is the most prominent violators of the law and their only action is to systematically remove all available avenues for the populace to use the law to hold government accountable?

      Hmmm…the same question came up some 235 years ago.

    13. #13 |  Chris in AL | 

      And a little quote from Thomas Jefferson on judges

      “To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. Their maxim is boni judicis est ampliare jurisdictionem [good justice is broad jurisdiction], and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves”

      Smart man. He would probably end up in GITMO today.

    14. #14 |  Big Chief | 

      Radley – I don’t recall seeing a posting regarding the Ledbetter Act, Obama’s real move to fix the economy.
      One solid rule I’ve learned in my years of libertarian reading is that if we replace the words “campaign reform” with “incumbent protection” anywhere it is used, we greatly increase the truthiness of the statement.
      I further propose that if we replace the word “Equal” with “Lawyers enriched by reasonable variation in” greater truthiness would also result.
      Is Obama’s real plan to fix the economy by enriching the tort lawyers and letting that “trickle up” (that’s up morally, not economically)?

    15. #15 |  ClubMedSux | 

      Re: google’s lobbying efforts. Don’t hate the player; hate the game.

    16. #16 |  Bob | 

      Something confuses me about the Bennie D. Herring case.

      So, this guy went to the police to get something from an impounded car. I assume it was either his car or he had permission or whatever… he was doing nothing illegal.

      But some copper there spotted him and thought Ah! That guy has to be dirty! Just lookit that ugly mug! So he calls around and another copper says “Yup! He has an arrest warrant!”

      So they arrest him and find drugs and a firearm in his car (I assume the firearm was not stored legally or was otherwise illegal)

      Is that right?

      Basically… then… all the cops have to do if that case if upheld is say “I thought he was the black guy we were looking for” and all evidence seized is automatically admissible.

      There would be no reason (Except for a moral compass) to not just stop whomever you pleased and arrest them so you could conduct a search.

    17. #17 |  CharlesWT | 

      Dymond Milburn’s trial for assaulting a police officer may enter closing arguments Monday.

    18. #18 |  ktc2 | 

      Bob,

      Yup, that’s what the “conservatives” of the SCrOTUmS want. Unchecked police power via incompetence or the excuse thereof.

    19. #19 |  Burrow Owl | 

      “Basically… then… all the cops have to do if that case if upheld is say “I thought he was the black guy we were looking for” and all evidence seized is automatically admissible.

      There would be no reason (Except for a moral compass) to not just stop whomever you pleased and arrest them so you could conduct a search.”

      I’m pretty sure that’s the whole point of the exercise.

      Ah, well. I guess the Constitution really is nothing more than a goddamned piece of paper after all.

    20. #20 |  Robert Guest | 

      The author of Grits For Breakfast is Scott Henson, not Horton. GFB is required reading for Texas defense lawyers (myself) and anyone else interested in reforming our broken justice system.

    21. #21 |  Helmut O' Hooligan | 

      Cynical in CA: “Why we need cynics.”

      “So I’ve got job security, which is nice”

      Absolutely. We may disagree with cynics, but they help to keep us honest. Resident cynic is one of the few postions not being cut in the U.S. these days. Congrats!

    22. #22 |  supercat | 

      To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.

      I wouldn’t mind rolling back judicial enforcement of the exclusionary rule if jurors were instructed to exercise their own duties in that regard. In particular, jurors should be instructed that in order to construe any evidence resulting from a search or seizure in a manner detrimental to the person whose property was searched or seized, they must find that all elements of the search or seizure were ‘reasonable’. Among other things, they must find that:

      -1- A reasonable person, looking only at evidence backed by oath or affirmation (noting that non-sworn statements are not backed by oath or affirmation, even if some other person swears that they were made) would believe that a search would more-likely-than-not uncover evidence of some particular crime.

      -2- Persons carrying out a search or seizure were making a bona fide effort to do so in a manner to minimize risk or harm to persons and property. In some cases, perfect avoidance of risk and/or harm will not be possible, and the target of a search should not be allowed to prevent it by ensuring that it could not be done without risk or harm, but for a search conducted in risky or harmful manner to be reasonable, there must be some articulable reason why a less risky or harmful search wouldn’t have been practical.

      -3- Police who endeavor to conceal their identity as police while serving a warrant shall be presumed to be acting unreasonably, and thus unlawfully, unless they can demonstrate why such behavior was necessary.

      -4- Free people have no obligation to regard police who behave unlawfully any differently from other people who behave in similar fashion. Indeed, good citizens have not only a right but a duty to stand up to such conduct.

      If all factual matters related to the above were given to juries for determination, I wouldn’t mind easing up on the exclusionary rule from a judicial standpoint. While I would expect that most juries would probably be more accepting of dubiously-gathered evidence than would be good judges, I would expect they’ll be less tolerant than would be most of the judges who are actually on the bench.

    23. #23 |  supercat | 

      I’m pretty sure that’s the whole point of the exercise.

      Given totalitarian anarchists’ eagerness to have judges make factual determinations that should really be made by juries, I wonder why they don’t replace all the crimes on the book with one: “Doing something wrong”, the sentencing for which would extend from a $1 fine to life in prison without parole. Let the jury decide whether a defendant did “something wrong”, and then have a judge use the preponderance of the evidence in determining the sentence?

      From a qualitative standpoint, would that be any worse than current practice?

    24. #24 |  Aresen | 

      @ Cynical in CA:

      Email me: aresen@telus.net

    25. #25 |  Brian Sorgatz | 

      Thanks, Radley!

    26. #26 |  Sam | 

      Just so I’m clear, is the disgust that Google is playing the game, or specifically what they’re advocating for? Because what they’re advocating for is good.

    27. #27 |  Doug | 

      @ Sam: Why is net neutrality good? Making a law that says that companies can’t charge market prices for their products doesn’t seem to be in line with private property rights at all, yet many libertarians favor it. I think that it might produce good outcomes as a policy, but from an ideological standpoint I can’t support it.

    28. #28 |  Michael Chaney | 

      Net neutrality is about internet service providers treating all traffic equally. The issue is that many of the carriers want to be able charge some service providers (i.e. google) for their traffic to get priority. Put another way, they want to be able to limit the rate of google’s traffic (as an example) unless they pay up.

      It would be chaos to allow cable companies and dsl providers to do that.

    29. #29 |  Sam | 

      @Doug,

      Because net neutrality allows for better function of the marketplace.

    30. #30 |  Gabriel | 

      First off, the internet is not a government service and the government has no proper interest in regulating private economic activity nor in impairing the freedom to contract. If you don’t like the service a company offers, no law is needed to enforce your right not to buy it.

      Second off, net neutrality laws reduce customer choice. If a non-neutral ISP wants to gain and keep customers, it must offer a service which is better or cheaper than a neutral ISP’s service, in some way, in the eyes of at least some users; if not, it’ll go bankrupt right quick. If I can come up with a non-neutral service offering which makes sense to me and to some people who would like to buy it, who are you to tell me and them that we may not do business?

      Libertarians should never conflate “I would not like to buy this product” with “there should be a law against this product.”

    31. #31 |  Boyd Durkin | 

      On BART cop out on bail: let us now compile a list of citizens out on bail while waiting trial for killing a cop. Insert cricket sounds.

    32. #32 |  ktc2 | 

      I still can’t believe he’s going with the “I thought it was my taser” bullshit. I think any non-cop who has handled both would agree it’s just complete BS. Of course the cops will line up in his defense because it opens a whole new avenue for their abuse if he wins.

    33. #33 |  Michael | 

      But ktc2,

      It is different when he says it!!! “I thought they were going to kill me”, won’t work if you ever messed with cannabis!

      Maybe he needs a drug test before any contraband could get out of his system?

      The new professionalism! “I can’t tell the difference between my taser and my other deadly weapon!”

    34. #34 |  Bob | 

      “Mehserle may have intended to draw and fire his Taser instead of his gun, according to a court filing by his attorney.”

      … Operative words, “may have intended to”.

      Not “intended to” not “accidentally drew”.

      Was he even WEARING a Taser at the time?

      This is his attorney talking, if he had a Taser, and could use the “Taser defense” then i would expect the wording to be clear on that. As it is, this looks like a stall tactic.

    35. #35 |  perlhaqr | 

      Because net neutrality allows for better function of the marketplace.

      “We had to destroy the village in order to save it.”

    36. #36 |  Sam | 

      @30 and 35

      How can you be so enamored with the market – which the free-wheeling internet is the ultimate example of – and simultaneously support it being hijacked by particular companies who intend to reduce its overall efficiency to benefit only themselves?

      At least Google is advocating for an internet that isn’t slowed down for particular consumers based upon what those consumers want to, yknow, consume.

    37. #37 |  Marty | 

      #17 | CharlesWT

      good link- this is worth following. thanks!

    38. #38 |  Michael Chaney | 

      I’m all for markets. In this area, we only have two choices for high-speed internet: comcast and at&t. That’s not a market, it’s a duopoly where neither is terribly interested in competition and both want to be able to prioritize traffic for business purposes. In other words, the market can’t sort this out.

      I shouldn’t have to tout my libertarian creds here, so I’ll assume you know that much about me. But we have conceded long ago that in services that require a lot of infrastructural investment (phone, electricity, cable) regulated monopolies are the rule of the game, not the exception. Net neutrality is a necessary part of that regulation.

      This is a dear issue to me, as I use comcast for my internet, and another provider for VOIP. Comcast has their own VOIP, and you can bet my phone service would become unusable if they were allowed to.

    39. #39 |  Cynical In CA | 

      Thanks Helmut, but your comment made me nervous. To discourage a rush into cynicism that may threaten my livelihood, I am lobbying Congress to create a license requirement for cynicism and that I be appointed Cyniczar. Looks like I have the necessary votes too. Pshew!

    40. #40 |  Helmut O' Hooligan | 

      #39 Cynical:

      Excellent idea, Cynical. Perhaps after that they can help me with the candle-making business I just started up down in Kentucky. When those utilities get the power back up, I’m screwed.

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