If you’ll remember, Justice Scalia argued in Hudson v. Michigan that the Exclusionary Rule isn’t necessary in the case of illegal no-knock raids because there are less drastic, more effective ways of deterring police officers from conducting illegal searches. The ruling was of course confined to the issue of wrongful no-knock searches, but it’s no secret that Scalia and other Federalist Society types want to do away with the Exclusionary Rule altogether. These other methods of deterring police from conducting illegal searches, Scalia argued, include a vague “new professionalism” in police departments across the country (which, the scholar Scalia improperly quoted has explained, is due to the fact that police have been held accountable when they do conduct illegal searches by the exclusion of evidence), civil rights suits from people who have been wrongly searched, and internal disciplinary procedures against offending officers.

Scalia’s first reason is debatable at best. And as we’ve seen, his other two remedies rarely happen, in part thanks to rulings from judges like Scalia, who have made it increasingly difficult to sue an agent of the government.

Here’s the latest piece of evidence against Scalia’s argument that police are usually disciplined by their own departments for conducting illegal searches:

But a closer look at those prosecutions reveals something that has not been trumpeted: more than 20 cases in which judges found police officers’ testimony to be unreliable, inconsistent, twisting the truth, or just plain false. The judges’ language was often withering: “patently incredible,” “riddled with exaggerations,” “unworthy of belief.”

The outrage usually stopped there. With few exceptions, judges did not ask prosecutors to determine whether the officers had broken the law, and prosecutors did not notify police authorities about the judges’ findings. The Police Department said it did not monitor the rulings and was aware of only one of them; after it learned about the cases recently from a reporter, a spokesman said the department would decide whether further review was needed.

Though the number of cases is small, the lack of consequences for officers may seem surprising, given that a city commission on police corruption in the 1990s pinpointed tainted testimony as a problem so pervasive that the police even had a word for it: “testilying.”

And these cases may fuel another longtime concern that flared up again in recent days: suspicions that the police routinely subject people to unjustified searches, frisks or stops.

[...]

Federal judges rarely suppress evidence, Judge Martin said, and the unusual number of suppressions in New York City gun cases raises questions about whether such tactics may be common. “We don’t have the statistics for all the people who are hassled, no gun is found, and they never get into the system,” he said.

The point here is not that a small number of police officers were caught conducting illegal searches. The point is that they weren’t in any way held accountable for conducting them, even after called out in court by a judge. Those internal disciplinary procedures aren’t merely not working very well, they’re practically nonexistent.

The top justification for the massive invasion of privacy that is Britain’s CCTV system isn’t panning out:

Massive investment in CCTV cameras to prevent crime in the UK has failed to have a significant impact, despite billions of pounds spent on the new technology, a senior police officer piloting a new database has warned. Only 3% of street robberies in London were solved using CCTV images, despite the fact that Britain has more security cameras than any other country in Europe.

It is, however, a great way for CCTV monitors to get cheap thrills.

Jeff Brown of Columbus, Ohio was arrested for DWI, spent four days in jail, and had his license suspended for six months when he refused to take a breath test after an officer confronted him on suspicion of operating a vehicle while intoxicated. Brown was walking his bicycle across his own front yard. Brown has since made a YouTube video detailing his ordeal.

Via Lawrence Taylor, who notes that in 2005, a woman in Florida was arrested for DWI for operating her own wheelchair while intoxicated. That case, fortunately, was thrown out.

A longtime reader writes:

Last night, my sister’s boyfriend was pulled over. They searched him and found a small amount of marijuana on him. Going through his wallet, they thenf ound a picture of my sister and her kids. The officer called the department of human services on my sister… who was NOT with him at the time, nor were her kids.

They came to talk to her today and they are forcing her to take a drug test.

The thing is… she would definitely fail.

Is this even legal to do? Guilt by association? I am not sure whom she can talk to, and she most assuredly cannot afford a lawyer.

I don’t know the answer. They certainly have no criminal case against her. But I’m not sure about the law when it comes to protective services agencies. I suspect they’re permitted to take measures police investigating possible criminal charges can’t. Still, you’d think they’d need more to go on than a photo in the wallet of someone arrested for a small amount of marijuana.

The person who sent the email gave me permission to throw it out for general discussion. So have at it.

John McCain is promising more John Roberts and Sam Alitos on the Supreme Court if he’s elected president. Cato’s Ilya Shapiro weirdly thinks this is a reason for libertarians to vote for McCain.

Here’s George Washington University con law Professor Johnathan Turley on Alito:

Despite my agreement with Alito on many issues, I believe that he would be a dangerous addition to the court in already dangerous times for our constitutional system. Alito’s cases reveal an almost reflexive vote in favor of government…

…In my years as an academic and a litigator, I have rarely seen the equal of Alito’s bias in favor of the government. To put it bluntly, when it comes to reviewing government abuse, Samuel Alito is an empty robe.

[...]

As an assistant solicitor general, Alito strongly opposed the ruling of a court of appeals in the seminal case of Garner v. Tennessee. In that case, a police officer shot and killed an unarmed 15-year-old boy when he fled with $10 from a home. Alito supported the right of the officer to kill the boy for failing to stop when ordered, a position ultimately rejected by six members of the Supreme Court and decades of later decisions.

Likewise, Alito authored another memo that argued strongly in favor of giving immunity to officials who violate the rights of citizens — a position long rejected by the federal courts.

As he did as a Reagan administration attorney, Judge Alito often adopts standards so low that any government excuse can overcome any government abuse.

[...]

An independent judiciary means little if our judges are not independently minded. In criminal, immigration and other cases, Alito is one of the government’s most predictable votes on the federal bench. Though his supporters have attempted to portray this as merely a principle of judicial deference, it is a raw form of judicial bias.

The Alito vote might prove to be the single most important decision on the future of our constitutional system for decades to come. While I generally defer to presidents in their choices for the court, Samuel Alito is the wrong nominee at the wrong time for this country.

As for Roberts, in his book Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy, Boston Globe reporter Charlie Savage devotes seven pages to Roberts’ career of defending government power (particularly presidential power).

Roberts, from the beginning of his legal career and straight through to the Hamdan decision, had demonstrated his unwavering commitment to expand presidential power.

These aren’t libertarian judges. They’re judges who defer to police and prosecutors on criminal justice issues, who would put broad restrictions on your ability to sue government agents who have wronged you, and who embrace the Unitary Executive, essentially the belief that when it comes to foreign policy and national security (and a number of other issues), the president’s powers are unlimited, absolute, and unchecked by either Congress or the courts. That isn’t an exaggeration.

Roberts and Alito also both voted the wrong way in Hudson vs. Michigan, the no-knock raid case. Not only that, but Alito’s vote proved to be the tiebreaker. Had Sandra Day O’Connor not retired, it’s likely that Hudson would have gone the other way.

Bush (or more likely Cheney) chose Roberts and Alito for one very specific reason: Both have proven throughout their careers to be reliable defenders of presidential power.

More judges like Alito and Roberts is the last reason a libertarian should vote for John McCain.

Via the comments to this Eugene Volokh post, it looks like the Ninth Circuit has just thrown out (pdf) a guilty verdict over precisely the problems with predicting odds when doing cold DNA database searches that we discussed earlier this week. Excerpt from the opinion:

Here, [DNA expert Renee] Romero initially testified that [defendant Troy Don Brown]’s DNA matched the DNA found in [rape victim Jane Doe]’s underwear, and that 1 in 3,000,000 people randomly selected from the population would also match the DNA found in Jane’s underwear (random match probability). After the prosecutor pressed her to put this another way, Romero testified that there was a 99.99967 percent chance that the DNA found in Jane’s underwear was from Troy’s blood (source probability). This testimony was misleading, as it improperly conflated random match probability with source probability. In fact, the former testimony (1 in 3,000,000) is the probability of a match between an innocent person selected randomly from the population; this is not the same as the probability that Troy’s DNA was the same as the DNA found in Jane’s underwear, which would prove his guilt. Statistically, the probability of guilt given a DNA match is based on a complicated formula known as Bayes’s Theorem, see id. at 170-71 n.2, and the 1 in 3,000,000 probability described by Romero is but one of the factors in this formula.

Once again, it’s worth noting that if other evidence points to a suspect, and you then get a match to your suspect after running the crime scene DNA against a database, you can be reasonably certain of guilt. I’m just wary of using cold matches as the starting point of an investigation. Precisely because many people misunderstand the fairly high odds of false matches with large databases, you run the risk of the investigation becoming more about finding proof that the match committed the crime than about investigating who committed the crime. The problem grows when you’re talking about decades-old cases where evidence has degenerated, witnesses have died, and records may or may not still be around.

First, have a look at this video, from tonight’s episode of 60 Minutes:

Brady v. Maryland was the Supreme Court case that made it illegal for prosecutors to withhold exculpatory evidence from defense attorneys. The problem is that there’s rarely if ever any punishment for breaking the rule, even when it has led to wrongful convictions and imprisonment.

Dallas County District Attorney Craig Watkins, featured in the above video, is now publicly advocating that prosecutors who knowingly violate the rule (that is, who knowingly break the law) should face criminal charges, not just professional sanctions (which also rarely happen).

"Something should be done," said Craig Watkins, whose jurisdiction leads the nation in the number of DNA exonerations. "If the harm is a great harm, yes, it should be criminalized."

Mr. Watkins said that he was still pondering what kind of punishment unethical prosecutors deserve but that the worst offenders might deserve prison time. He said he also was considering the launch of a campaign to mandate disbarment for any prosecutor found to have intentionally withheld evidence from the defense.

Such ideas could not be more at odds with the win-at-all-costs philosophy that was the hallmark of legendarily hard-line Dallas County District Attorney Henry Wade and, to a lesser extent, of subsequent administrations.

It is rare for a prosecutor to advocate strict penalties for misconduct – even when it’s intentional, said Mr. Gershman, a former New York prosecutor. "I couldn’t give you five cases in the last 40 years of criminal charges against prosecutors," he said.

The Duke lacrosse case was great in that it brought national attention to the possibilty of wrongful prosecutions and prosecutorial misconduct. But it may have also fostered the misconception that prosecutors like Mike Nifong are routinely punished when they make the same mistakes he made. In truth, it almost never happens. Still, it’s fun to watch law-and-order, "the law is the law" prosecutors backpedal when asked why they themselves shouldn’t face charges when they violate the law.

Watkins, by the way, is a rock star. Read my interview with him here.

Steve Chapman had a column last week about the benefits of assembling large DNA databases of the populace for the purpose of solving crimes.

The L.A. Times has a story this weekend on why that creates some problems that might not be readily apparent.

The main problem is that the odds of a false match increase exponentially when you’re running a DNA sample against a database of hundred of thousands of people (in Britain, the number is well into the millions)–a Bayes’ Theorem problem. The problem is exacerbated when you’re dealing with decayed DNA from old “cold cases,” where you have even fewer markers than in well-preserved DNA samples.

Let’s say the U.S. adopts a Great Britain policy on collecting DNA–basically a move toward, at some point in the future, having DNA on file for everyone in the country. Well now the 1 in 1.1 million odds against the suspect in the L.A. Times case are being run against a database of 380 million people. The numbers say that you’re going to pull up about 345 matches in the U.S. alone. In the California case, the database is obviously much smaller than the entire U.S. population, and only one of those 345 people showed up from the 330,000-person FBI DNA database–the (admittedly unsympathetic) subject of the article. But any of the other 344 potential matches in the U.S. (or the 2,200 matches worldwide) could have committed the crime. They just weren’t in the database.

DNA database searches are an excellent starting point for law enforcement. But given the odds of false matches when running DNA against an extensive database, we should be very careful about moving the burden of proof onto matches to prove their innocence. It’s also unfortunate that the judge in the case profiled in the L.A. Times would only allow the prosecution’s miscalculated 1 in 1.1 million chance of a false match into evidence, and not the more statistically sound 1 in 3. Even if one were to accept the idea that the scientific community is divided over the proper way to calculate the possibility of a false match (and I’m not convinced there’s really that much of a debate), you’d think a judge should either allow the jury to be made aware of that division of opinion, and that there are serious statisticians and scientists who would put the odds much, much lower than the odds suggested by the prosecutors in the case.

Despite claims from Taser defenders that there has never been a confirmed case of a taser jolt contributing to death, the Arizona Republic did a little digging, and found at least 27.

Taser International, fresh from threatening to sue bloggers for trademark infringement for merely using the Taser name, is apparently threatened by the willingness of more and more medical examiners to look past Taser’s corporate propaganda and list a stun from the weapon as a contributing cause of death–so they’re suing the medical examiners, too.

Taser would rather medical examiners attribute such deaths to “excited delirium,” a vague condition relatively unheard of in medical research before the advent of the Taser, but that now seems to be a frequent cause of death in Taser-related cases–but totally unrelated to the actual Tasering, of course. Coincidentally, Taser is apparently also shoveling money at researchers willing to lend medical bona-fides to the “excited delirium” theory.

Broadly speaking, I don’t have a problem with the Taser. Assuming that it’s used in situations where a more lethal gun would otherwise be sued, it’s probably an improvement. But the incessant “non-lethal” marketing of the weapon I think makes the police much more willing to use it, particularly in cases where the person being tased is pretty clearly not a potent or imminent threat. That, and it’s increasingly looking like the “non-lethal” descriptor simply isn’t true.

And frankly, one surefire way to piss away your credibility is to start bullying bloggers and intimidating doctors with litigation.

In Mississippi, state supreme court justices are elected, not appointed. They serve eight-year terms, but can serve multiple terms if they’re reelected. Yesterday Associate Justice Oliver Diaz, Jr. announced his plans to run for reelection.

Diaz may face a tough campaign, due in part to the fact that he’s one of the more liberal justices on the court. He’s also the only justice on the court who seems to give a damn about the sham that is Mississippi’s criminal justice system. Diaz was instrumental in building a coalition to throw out Dr. Steven Hayne’s absurd two-hands-on-the-gun testimony in the Tyler Edmonds case. My sources in Mississippi tell me the court initially was planning to uphold Hayne’s testimony and Edmonds’ conviction. Diaz not only succeeded in turning that around for a 8-1 vote for a new trial, he wrote a blistering concurring opinion stating that Dr. Hayne should never testify in Mississippi’s courts again (disclosure: he cited my reason article on the Cory Maye case in that opinion). Unfortunately, Diaz wasn’t able to convince a majority of his colleagues of his opinion of Dr. Hayne, and so Hayne continues to do the bulk of the state’s autopsies.

The other reason Diaz may face an uphill battle for reelection is because several years ago, he was indicted by the Bush Justice Department on public corruption charges. Diaz, a former Republican now backed by Democrats, maintained his innocence throughout the ordeal, refused to plea or resign his seat on the court, and was eventually acquitted on all charges. The Bush Justice Department then indicted him again. And he was acquitted again. His case is now being investigated by Congress to see if it was one of a series of overtly political and questionably meritorious prosecutions of Democratic public officials led by Bush-appointed U.S. attorneys (other prosecutions under investigation include those against former Alabama Gov. Don Siegelman and Pennsylvania medical examiner Cyril Wecht).

One other thing: The federal charges against Diaz stemmed from his relationship with Paul Minor, a plaintiff’s attorney in Mississippi who got rich off the tobacco settlement. As Harper’s Scott Horton points out, the case against Diaz, Minor, and others was part of a GOP backlash in Mississippi against the rise and enormous influence of trial lawyers in that state. But interestingly, while Diaz is often painted as a friend of the plaintiff’s bar, it’s worth noting that Dr. Hayne is also a favorite of trial lawyers in Mississippi. Part of Hayne’s success stems from the fact that he has managed to win over both the state’s prosecutors and the state’s trial lawyers (and the county coroners, who often go out of their way to please both). Talk to any medical malpractice defense attorney in Mississippi, for example, and they’ll rant about Hayne’s absurd testimony in various tort cases for a good ten minutes (I’ll have more on this next week).

Diaz’s blistering opinion singling out Hayne in the Edmonds case, then, was actually a blow to the state’s trial lawyers—the very group for whom the feds and the state’s GOP accuse of Diaz of being a shill.  His continued presence on the court is important to keep the pressure on the state to do something about Hayne.

It would be unfortunate if South Mississippi’s voters were to take Diaz off the bench due to what looks like an overtly political federal prosecution. Right now, at least on criminal justice issues, he’s the only justice on the Mississippi Supreme Court who seems to even realize Mississippi has a problem.

In San Diego, a woman is pulled from her family and two kids, extradited to Michigan, and will likely spend the next nine years of her life in prison because 32 years ago she escaped from prison. She had been convicted of drug distribution. There’s no evidence she’s committed any crimes since she escaped. In fact, it looks as if she started her life anew, and had put things back together. I’d be pleasantly surprised if authorities showed her any mercy.

Meanwhile, there are now early reports that “D.C. Madam” Deborah Jeane Palfrey has committed suicide. She was facing 55 years in prison for the crime of matching consenting high-end prostitutes up with the consenting rich, powerful men who wanted to have sex with them. Moral crusader and Palfrey client David Vitter remains a member in good standing of the United States Senate.

Sad story in the Washington Post on how difficult it is for people wrongly convicted to get their lives back together. Probably wouldn’t surprise you to learn that a big part of the problem is foot-dragging by politicians and bureaucrats.

In Illinois, to regain a certifiably clean record and collect compensation–a lump payment of $60,150 for five years or less in prison, or $120,300 for six to 14 years–an exonerated inmate must obtain a “pardon based on innocence” from the governor. A 15-member state review board interviews the petitioners and makes a recommendation, but the governor is not obligated to make a decision.

“The governor is not acting on them,” said Karen Daniel, senior staff lawyer with the Center on Wrongful Convictions, which is pressing [Gov. ]Blagojevich to decide on Pollock’s case and others. “In most of these cases, it’s really not a hard decision. Sometimes there’s still some controversy left after the conviction is thrown out, but in most of these cases there is no disagreement.”

You’d think that a state like Illinois–which is where this whole wrongful conviction movement started–would be leading the country on this stuff, not lagging it.

Five the jurors in the Cyril Wecht trial held a press conference yesterday to say that (a) the jury was no where near convicting Wetch, (2) the prosecution was political, and (3) they don’t support a retrial.

I guess if there’s one benefit to all of this, it’s that with each day that Buchanan insists on retrying this case, she’s exposed a bit more for the power-hungry, convict-at-all-cost prosecutor she is.

Several people have asked me what I think about the acquittal of the four New York City police officers who shot and killed unarmed groom-to-be Sean Bell. I guess I don’t have much to add that hasn’t already been said elsewhere. We’ll never know exactly what happened, but I’d wager to guess that if four men not wearing badges were to unload 50 rounds into another, unarmed group of men, killing one and sending stray bullets all over the neighborhood, they wouldn’t have escaped without being convicted of a single crime.

On the other hand, I’m having a hard time seeing how…uh…capitalism is to blame. This is what happens to people who read too much Naomi Klein.

I ask because I’m going to be there this weekend. First there was this. Now this:

If you’re caught with a prostitute, local authorities plan to seize your car.

That was the message conveyed at a press conference Tuesday afternoon, where officials with the Memphis Police and the District Attorney General’s Office announced the arrests of 64 people in a three-day prostitution sting.

As a result of those arrests, authorities will attempt to seize 42 cars: 39 from those charged with soliciting prostitutes, as well as one from a suspect facing drug charges and two because the owners had revoked driver’s licenses.

“They were used in the commission of a crime. Under state law, they are subject to seizure,” Dist. Atty. Gen. Bill Gibbons said, when asked if the seizures seemed excessive. “I think it’s a good law. But if you think it’s too stringent, talk to your legislators.”

Added Memphis Police director Larry Godwin: “I’d say seize every dadgum vehicle and send a message.”

To be fair to Memphis, this isn’t new, or unique to the city. Lot’s of cities do it, despite the fact that it punishes suspected Johns before they’ve so much as seen the inside of a courtroom. Even if you’re acquitted, in most places you have to go to court to get back your car, and you can forget about asking the government to reimburse you for attorney fees and court costs.

Argentina has decriminalized the consumption of illicit drugs. That seems like good news.

And Alaska’s appeals court says it will no longer tolerate “implicitly coercive” searches during traffic stops. That’s good news, too.

Both places, by the way, are marvelous vacation destinations.

The U.S. Supreme Court deals another blow to the Fourth Amendment, ruling that evidence seized during arrests that are illegal under state law (but legal under the Constitution) can still be used against a suspect at trial.

During arguments, Ginsburg spoke for several colleagues when she pointed out that if a summons had been issued in Moore’s case, any incriminating evidence would have been excluded. “Would you explain the logic to saying that when the police violate state law, then the evidence can come in, but when they comply with state law, it can’t,” she asked.

But that didn’t stop her from voting with a unanimous majority.

Some interesting commentary from Orin Kerr on the case here.