Sunday Links

Sunday, July 1st, 2012
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23 Responses to “Sunday Links”

  1. #1 |  Burgers Allday | 

    I have my differences with the guy, but that Greenfield blog entry is awesome. Stuff that so, so needs to be said. And repeated. And repeated.

    Semi-related:

    Here is a spoken word piece of mine where I deal with the problem of prosecutors becoming judges:

    http://youtu.be/m8jC92wxH40

    But don’t watch it unless and until you read the Simple Justice blog thingee (be careful, by the way, bcs Mr. Balko linked the blog not the specific entry) because Greenfield is dropping science and rocking the hard jamz there.

  2. #2 |  Marshall | 

    NYPD’s “do not feed into subject’s propaganda” is a perverse way of saying “play by the rules” but maybe we should take it.

  3. #3 |  Difster | 

    On the trial issue, the way to fix that problem is to simply overwhelm the government by convincing massive numbers of people to go to trail instead of taking pleas. Of course this means an awful lot of sacrificial lambs but if the docket can get clogged up that can only be good for justice.

  4. #4 |  Burgers Allday | 

    @2:

    Yeah, but the “distraction as obstruction/interference” argument is scary.

    Glad it didn’t make “exigent circumstances seizure” argument for seizing the camera (and arresting those reluctant to hand their cameras over). To me, that is a scarier argument (relative to the obstruction/interference argument) in that I could imagine SCOTUS justices buying into the camera-as-warrantlessly-seizable-evidence argument.

    We shall see in the fullness of time.

  5. #5 |  Burgers Allday | 

    On the trial issue, the way to fix that problem is to simply overwhelm the government by convincing massive numbers of people to go to trail instead of taking pleas. Of course this means an awful lot of sacrificial lambs but if the docket can get clogged up that can only be good for justice.

    The only way to fix the system is spending parity.

    What Greenfield doesn’t say is that defense attys are generally lousy at discovery and expert witness procurement (at least compared to attys trying civil cases where a lot of money is at stake). Defense attys aren’t lousy at discovery because of stupidity or anything like that. They are lousy at it because it takes time and costs money. As an exception-proves-the-rule example, OJ’s atty did an excellent job of discovery and expert witness procurement and they leveraged that into a win in a virtually unwinnable case. But defense attys don’t have that kind of time and money.

    Without good discovery and expert witness procurement one will always “get one’s ass shot off” (pardon my French) in court.

    As awesome as Greenfield’s post is, it fails to recognize that the biggest part of the problem is financial disparity between defense and prosecution.

    Parity is the answer.

    Without spending parity any other fixes (eg, forbidding prosecutors from becoming criminal judges) will be circumvented and subverted bought by the super smart brains purchased through the spending differential.

    The real problem ain’t rocket science.

  6. #6 |  C. S. P. Schofield | 

    Burgers Allday,

    I just had a really goofy idea, inspired by a recent REASON magazine online article about Kickstarter (http://reason.com/archives/2012/06/28/the-internet-vs-the-nea), and I want to bounce it off you;

    What if the system was required to run a blog where citizens could donate money for the trials being contemplated; the court would be required to split the money evenly between prosecution and defense and if the citizenry simply didn’t care about a particular case, then charges would have to be dismissed.

    What flaws do you see? BTW, I cannot imagine the political circumstances under which the Political Class would allow such a system to be implemented, so I’m asking you to assume that it is going to happen, rather than argue that it won’t ever happen. I know it won’t, as matters stand, I want your take on it as a system.

  7. #7 |  Juice | 

    Nice spelling on the mugshot poster.

  8. #8 |  Burgers Allday | 

    CSPS:

    any idea aimed at spending parity is cool with me.

    a “superlawyer” who comments here sometimes (we’ll call him AJP) made an interesting comment here that is worth discussing, in part because of AJP’s lofty stature and in part because it is an interesting idea.

    What AJP said is: (i) don’t do spending parity; but (ii) use the same pool of lawyers for prosecution and defense (like the military does for US soldiers accused of criminal behavior while in the military).

    The idea, as I understand it, is that this will ensure parity of intelligence as between prosecution and defense. I think this misses the mark, but is still a good idea.

    I think it misses the mark because I don’t think the root problem is an intelligence disparity. I think that there is a surfeit of smart lawyers and that plenty of them fall into criminal defense work. I think the problem is money. That is, because the criminal defense lawyers don’t have money, they can’t really exercise their abundant intelligence, they can’t leverage it into a win in any given case. Still, out of respect for AJP I am sort of willing to believe that intelligence disparity is part of the problem. I also know that AJP has handled at least one criminal appeal where the raw intelligence of the criminal defense lawyer at trial left something to be desired.

    So why do I still like the idea?

    Several reasons:

    1. I think it will lead to spending parity. I think over time the prosecutor/defense lawyers will advocate for the money they need more effectively than dedicated defense lawyers do now. I think that the mere fact of being employed by an office that does prosecution and defense in equal measure will make it more likely that, as a practical matter, money allocated for defense will go up. In other words, the “prosecutors” (now also tagged with defense work) will “go native” to some extent and advocate for the money they need for both experts and discovery-related motions and activities.

    2. The fact that the military does it this way may make the idea palatable to the general public. The general public absolutely adores the military. If the military were a protrusion, most people would gladly wrap lips and tear right up. Since the military handles justice by having the criminal lawyers split time between team prosecution and team defense, there might not be the kind of popular opposition that you would see to any other proposal likely to lead (in the short, long or medium run) to spending parity. Of course, the key to selling this plan (as AJP seems to realize) is to steadfastly deny that it has to do with spending parity. That part needs to be an Adge-blog-only secret!!!

    “Its gotta be Burgers!” (TM)

  9. #9 |  perlhaqr | 

    I want to build a bluetooth device, either some sort of regular headset, or something that fit on a pair of glasses / sunglasses, that has a camera and a mic built in, that transmits to your phone in your pocket, and then out to a cloud, like this TapIn app does.

    Make it so you just have to reach up and push a button on the headset to start the whole process. This way, you’re not standing there holding up a smartphone, pointing it at the cops, you’re just standing there, looking at them, hands at your sides. It will be significantly less obvious that you even are recording, and thus significantly less likely to even get harassed in the first place.

  10. #10 |  Other Sean | 

    Burgers,

    You’re trying to treat lung cancer with a lozenge my friend.

    Bigger war chests are just one minor advantage the government has in criminal cases. By far the state’s most powerful weapon is prosecutorial discretion, the ability to cherry pick winning cases. Next up is a criminal code so vague and voluminous that we really are all guilty, all the time. Next after that, sentencing policy which so exaggerates the risk of total ruin, that individual defendants cannot afford to dream about what might happen if they win at trial – they can only dread what will happen if they lose.

    Face it: your ass belongs to them whenever they want it. A few extra dollars to buy perjury from expert witnesses is just something the state has, but doesn’t remotely need.

    And if they suddenly had to share a few of those dollars with you, it wouldn’t matter a bit. No amount of extra funds in your defender’s pocket can alter the fact that a 100% chance of 4 years in prison is better than a 20% chance of 50 years.

    Actually, your plan would not only fail to address the real problem, it would probably backfire.

    Because the state has so many advantages, a combined talent pool that mingles prosecutors and defenders would simply turn into a pool of prosecutors who sometimes pretend to be defenders. Why? Because the greater share of career advancement opportunities would arise during the prosecutorial side of one’s rotation. Lawyers would quickly get in the habit of working really hard when they were for the state, and taking extra vacation days when they were against it.

    As matters now stand the adversary system is nearly dead. Your idea would finish it off.

  11. #11 |  Pam | 

    no trials – I ran across an inmate at Parchman who got 35 mandatory years when he was 21 for a neighborhood hold up of a barber shop. He didn’t go in and wasn’t involved in the robbery. He waited in the car as he said he wasn’t told of the plan until he was already there. No one was hurt and the net proceed were fifty bucks. His sentence would indicate he was involved in a bank heist. His counsel advised him to open plea and said he’d get 5 years. The judge gave him 35 mandatory. Something totally wrong here. He had no prior criminal record and didn’t know what the hell he was doing when he open pled. The last thing his lawyer said as they left the court room was “you can’t do 35 mandatory”. That was the last he heard from the guy. His grandmother (family friend who raised him who he called his grandmother) paid $10,000 for that advice. Ugh, broken, completely broken system.

  12. #12 |  Pam | 

    I mean I’m not for crime, but this sort of sentencing is judicial abuse.

  13. #13 |  Other Sean | 

    Pam,

    Broken public, too. Think about how many people you know whose only reaction to that story would be to say something like: “Hmmm, sounds like a bit much but you lie down with dogs you wake up in prison, am I right?.”

    That’s your true enemy. The judges and prosecutors are just tools.

  14. #14 |  Pam | 

    yes, I agree. I haven’t run across anyone who gives a hoot. Even the Equal Justice Initiative who we both wrote to said, too many other more egregious cases so unable to help (and that groups forte is unequal, disproportionate sentencing and civil rights abuses of which he fits right into yet too many worse cases) Ugh!

  15. #15 |  derfel cadarn | 

    This bozo is so full oof himself that he cannot realize that the “brotherhood” and “taking care of one another” is the very problem with our police forces today. Your DUTY,you know the part where you swore the oath about protecting and serving,I believe the referred to service was to the Constitution and the people NOT each other. Not only does this guy have no case he should be fired for breach of oath and duty.

  16. #16 |  Pam | 

    The threat over his head was a jury could sentence him to life but a judge had to give him less than life. So he took his chances with a judge. In the sentencing hearing the judge asked the prosecutor what the life expectancy of a black male 21 years of age was (from 46.3 to 53.8 years) and proceeded to give him 35 mandatory. The judge called it a horrible crime that deserves a severe sentence. I was thinking he may have done better with a jury, at least there may have been one reasonable fair-minded bloke on it.

  17. #17 |  Other Sean | 

    Pam,

    I’m sure they have some fairly hard-nosed triage system to determine which cases both deserve their attention and have a chance of benefitting from it…but damn, when something called the Equal Justice Institute can’t do anything for a black kid from Mississippi who got sent up for 35 years on accomplice to armed robbery, that’s really saying something.

    In my town, as long as he didn’t have or use a weapon, the same kid could probably have pled down to “stealing under $500″ and gone home after a year.

  18. #18 |  Pam | 

    Well, he was pleading to 5 years which is what his counsel told him he would likely get but he got 35 mandatory without any chance to earn release. Ugh!

  19. #19 |  Pam | 

    Well, it’s Mississippi as they say.

  20. #20 |  C. S. P. Schofield | 

    Pam,

    You say the judge called it a horrible crime; what happened? Did the idiots who actually held up the barbershop kill somebody? Because if not, then somebody needs to buy the judge a sense of proportion for Christmas.

  21. #21 |  Pam | 

    Nobody was hurt. Fifty bucks was stolen. Young first time offender, didn’t enter the establishment. The judge had from 2-less than life at his disposal. Just seems a bit out of whack to me. When the judge asked him if he understood he was giving up his right to appeal, he said no. Ugh. I guess he knows now.

  22. #22 |  Pam | 

    Pesonally I feel this judge woke up on the wrong side of the bed and this kid paid the ultimate price. Is that how the justice system should work? Probably not. But when sentences make no sense at all, you gotta attribute to something.

  23. #23 |  freedomfan | 

    Though I agree that there is a “special privileges for cops” angle on the incident which is worth exploring, I have a media pro-statist bias comment on the “cop gets into bar fight and wants bouncers who ejected him arrested” story in the last link. Doesn’t it seem a little odd that there is no mention of Lt. Evers’ state of intoxication in the whole story? In a story centered around a post-2AM physical confrontation between a bar patron and bouncers, allegedly initiated after the bartender had heard that patron threaten to punch another in the face, the writer goes the whole sixteen paragraphs without mentioning whether Evers was drunk. I am not saying he was or he wasn’t. I am saying it seems unlikely that the matter was never mentioned in the statements of the bartender, the bouncers, or the Avalon PD officers to whom Evers reported his claim that he was assaulted. Which claim, BTW, Evers apparently made by taking off his shirt once he was outside the bar and approaching an Avalon officer. Whether he was drunk or stone cold sober, it would have been worth mentioning in the article.

    Of course, it takes until the second page of the article before the author bothers to mention why the fight started in the first place. If the reader is supposed to read past the first dozen paragraphs to find out that Evers was heard to say, “I will f- punch you in the face”, I guess there’s no reason to muddy the waters with details like possible drunkenness… [/sarcasm]

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