BurtLaw on Crime and Punishment

BurtLaw on Crime and Punishment
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Foolproof fingerprint evidence? Prosecutors in closing arguments often point to the fact that more than one state's experts pointed the finger of guilt at the defendant: "Defendant doesn't just claim Expert A is mistaken, but that Experts B, C and D also were mistaken, in testifying that the fingerprints found at the scene were hers. Apparently she would have you believe there is some sort of conspiracy to frame her. But this is not a police TV drama...." Alas, if only all state's witnesses were angels. If you believe four state's fingerprint experts in one case couldn't be wrong, then you're wrong. A fingerprint found at a murder scene in Scotland was identified as that of a policewoman, Shirley McKie. It was identified as part of a routine elimination of prints of officers who had processed the scene. But she denied she had been at the scene. For that she was charged with perjury. Four Scottish fingerprint experts testified the print "definitely" was hers. She was cleared because of the testimony of an American fingerprint expert who proved the Scottish experts were wrong. How can this happen? One expert has said that he fears that some police fingerprint bureaus "might have developed a culture where fingerprint analysis was not properly checked, in the knowledge that it was almost never challenged in court." More (Innocent.Org.UK). Incredibly, the Crown Office in Scotland has announced that no action will be taken against the four officers. One hundred thirty of the foremost experts from 13 countries say that this response is inadequate. See Expert warns fingerprinting system is 'riddled with flaws' (Sunday Herald 05.30.2004); Anger as McKie experts still verifying prints (Sunday Herald 03.27.2005). (Further reading: Suspect Identities - A History of Fingerprinting and Criminal Identification by Simon Cole (Harvard U Press). (05.03.2002)

"Warning: Shoplifters will be persecuted!" Back in the mid-1950's there was a small hole-in-the-wall record store in downtown Minneapolis that had a hand-lettered sign on the wall behind the cash register that read, "Warning: Shoplifters will be persecuted!" If Dahlia Lithwick, my favorite of the popular legal analysts, is right, that is what some prosecutors in California have been and are doing to Winona Ryder, the actress (who is named after a southern Minnesota city on the Mississippi River, Winona). See Justice, Interrupted - Why Winona Ryder will do time for O.J.'s crimes. To me, Winona Ryder is an extraordinarily beautiful and sensitive young woman. Her modulated, understated performance in Girl, Interrupted was not only superior, in my opinion, to the over-the-top performance that won Angelina Jolie an Academy Award -- it also rather obviously was reflective of her own depths and experiences as a person. I don't find it manly or amusing that talk-show hosts automatically focus their humor on famous people who slip and fall. Indeed, we don't even know that Winona Ryder slipped and fell. But they've all assumed she's guilty. Well, it never surprises me that people do that outside the courtroom and before defendants have a chance to confront witnesses or present their defenses. That's one of many sad facets of human nature, I guess. (It's why some of us prefer dogs.) But I expect more from prosecutors than the behavior Ms. Lithwick has recounted. Trouble is, next to pandering politicians, prosecutors, as a group, are the most "political" of all the players in the criminal justice system. Thus, e.g., we have the spectacle of federal prosecutors parading arrested, handcuffed suspects before cameras so President Bush and Dick Cheney, of all people, can appear to a gullible public to be tough on corporate crime. Fortunately, we have a system of procedural roadblocks and safeguards that, while they don't ensure against conviction of the factually innocent, do prevent official punishment based on press reports and Leno jokes. But not all punishment is official and we have no system of protecting public figures against public ridicule or prosecutorial abuse when they're arrested and charged with offenses like shoplifting, illegal possession of drugs, etc. All we can hope for is what seems too much to expect these days -- a prosecution commensurate with (not in excess of) the gravity of the offense, a little chivalry, some reluctance to assume the worst, a refusal to hit someone who appears possibly to be down and in need of help. How anyone can find humor or perverse satisfaction in Ms. Ryder's predicament is beyond me, particularly given Ms. Lithwick's account of the prosecutors' questionable behavior. (10.06.2002) Update: See, also, Joel Mowbray on Winona Ryder & Los Angeles District Attorney on National Review Online.

Wish list. My wish list includes the wish that someone -- anyone -- will run against and defeat Amy Klobuchar, the Hennepin County Attorney, who, perhaps believing correctly that talking tough wins votes, regularly pleads her notorious cases in front of TV news cameras. Today, after her office persuaded the trial judge, H. Richard Hopper, to impose a harsh sentence of 69 months in prison on former Court of Appeals Judge Roland Amundson for a property offense, she stated, "This confirms that no one is above the law, not even a judge." More (Star-Tribune 06.08.2002). Really? Did anyone suggest that a judge is above the law? I think the only thing the harsh sentence confirms is how truly vengeful and atavistic the law can be. Some judges might feel it, but I doubt they'll say it. I'll say it: the sentence is way too harsh. If I were the sentencing judge, I'd have imposed the presumptive sentence duration but departed dispositionally, placing Mr. Amundson on extended probation for a significant period of time, conditioned upon his confinement to his residence and the performance of community service. That would save the state the high cost of incarceration, which ultimately is borne by you and me as taxpayers, would benefit the community, and would protect Mr. Amundson's four innocent adopted children from the severe psychological trauma that his confinement in prison surely will cause them. In his great 1897 speech, "The Path of the Law," Justice Holmes asked, "What have we better than a blind guess to show that the criminal law in its present form does more good than harm?" And he asked, further, "whether fine and imprisonment do not fall more heavily on a criminal's...children than on himself." I think, at least in our hearts, we know the answers, but many politicians, even the kind who wear robes, are afraid the answers won't win them any votes. The Scandinavian countries, for whatever reason, are way ahead of us in the use of rational and fair alternatives to incarceration for property offenses such as this. Perhaps some day we'll see the foolishness and immorality of our harsh approach and the wisdom and practicality of theirs. (06.08.2002)

Two simple measures. Margaret Talbot argues in the July/August 2002 Atlantic Monthly, in a piece titled True Confessions, that "Two simple measures could go a long way toward ensuring that findings of criminal guilt are genuine" -- specifically, a) adopting standard procedures for fairly exposing suspects or their photographs to eyewitnesses and b) mandating taping of police custodial interrogation of suspects. I have already commented on both measures, the latter in some detail: a) need for improving identification procedures; b) mandatory taping of interrogations. (06.25.2002)

One strike, three strikes, things are as the ump calls 'em? Judges love to tell the story about the differing views of umpires on the relationship, if any, to reality of their "balls and strikes" calls. One ump says, "I call them as I see them." Another, "I call them as they are." A third says, "They are as I call them." My view is that the first ump has the appropriate attitude and that the other two are deluding themselves. People who take themselves too seriously (e.g., all too many judges) are more likely to suffer from delusions, and people who suffer from delusions are less likely to perceive reality accurately. If many judges take themselves too seriously, perhaps it is because the rest of us take them too seriously. If judges took themselves less seriously, if they stopped looking at themselves in the mirror in the morning and saying "Good morning, your honor," perhaps they would decide maybe just a few cases differently. I'm thinking of three:

a) The first is Board of Education v. Earls, in which the Court confronts the propriety under the Fourth Amendment of mandatory urine testing, i.e., the warrantless, non-probable-cause search, of every kid in high school participating in any extracurricular activity. As Dahlia Lithwick suggested after listening to the oral arguments, the judges might perceive the reality of such testing differently, might feel differently about it, if they were subject to being hauled off the bench and forced to give urine samples. (Or they might feel differently if their kids attended public rather than private schools and were hauled out of class and forced to urinate in a cup.) See, infra.

b) The second case is the Rucker case, in which the U.S. Supreme Court upheld as okay a policy allowing eviction of innocent tenants from federal housing for any kind of illegal drug activity by a household member or guest, even if not in the rental unit or building. See, infra,"Evicting the old folks for the sins of the young."

c) The third is the Court's decision to hear Lockyer v. Andrade, No. 01-1127, and Ewing v. California, No. 01-6978, involving the issue of the constitutionality of California's obscenely-harsh three-strikes law. More (New York Times, 04.02.2002). The decision to review is ominous if only because the California state courts have upheld the law and it is the notorious, oft-reversed Ninth U.S. Circuit Court of Appeals, in Andrade, that determined the application of the law to the facts was unconstitutional. When the Court votes to review a decision of the Ninth Circuit reversing a conviction or sentence, that usually means the Court will reverse. I would feel better about the possibility that the Court would sustain the Ninth Circuit's decision if I felt our leaders, including the Justices of the Supreme Court, were more likely to imaginatively project that the person being evicted, the kid being harassed, or the young man being sentenced harshly might be someone they know, perhaps one of their own. But, as we know, when a Bush girl uses illegal drugs, her Dad doesn't get evicted from public housing and she's not really a criminal -- she's just a good kid who did a bad thing. See, infra, "Bush seeks 10% cut in illegal drug use - my advice." (04.02.2002)

How would judges feel if they had to give urine samples? "If you could pick just one Supreme Court justice to spontaneously haul off the bench, say, in the middle of oral argument, and drag into a nearby bathroom, where they'd be forced to hike up their robe and pee into a Dixie cup, whom would you choose?" From another irreverent and provocative piece by the incomparable Dahlia Lithwick, former U.S. Supreme Court law clerk, reporting on Board of Education v. Earls, argued before the U.S. Supreme Court on 03.19.2002. More (Slate 03.19.2002)

Evicting the old folks for the sins of the young. Dahlia Lithwick's irreverent reports on the U.S. Supreme Court in Slate generally are more to my liking than the almost reverential ones by Linda Greenhouse of the New York Times. Here's a link to Lithwick's latest, Too Old To Narc - The justices toss their bingo buddies into the street, on the oral arguments in HUD v. Rucker. I don't know of a more shameful overreaching law than the one under consideration, enacted in 1988 by our pandering, grandstanding Congressmen. The law, 42 U.S.C. § 1437d(1)(6), lets public housing authorities evict poor old people, and others, for any drug activity "engaged in by a public housing tenant, any member of the tenant's household, or any guest or other person under the tenant's control." I might conceivably understand such a strict liability law, if it were applied fairly and uniformly without regard to race, status or position to all in public housing whose children and grandchildren under their control engage in drug activity -- but, as we've seen, our President has not been evicted from his publicly-owned house, nor has his brother, Jeb. For more, see, infra. (02.20.2002) Update: The Court, as expected, upheld the law. See, One strike and yer out on the street (Arianna Huffington, Working for Change 04.02.2002).

Bush seeks 10% cut in illegal drug use - my advice. According to this source, our President has set a short-range goal of cutting illegal drug use by 10%. My advice to Bush: a long journey begins with the first step. You can take a big first step simply by convening a gathering of all the members of the next generation of your extended family and emphasizing to them that they, too, must cut their own drug use by 10% if you're going to not only reach your goal but set a good example of "sharing the pain." And, if you really want to avoid alienating them, you should not refer to your two daughters and Jeb's daughter as an "axis of evil" and "a cancer on the Presidency." Emerson noted in his Journal, "When Edward and I struggled in vain to drag our big calf into the barn, the Irish girl put her finger into the calf's mouth and led her in directly." George, the finger-in-the-mouth approach works if you coat the finger with sugar but not if you coat it with bitters (although, of course, in the case of "the girls," it might work if you coat it with Peychaud's Bitters). "Other approaches?" you ask. Have you considered the possibility that God sometimes visits problems upon our children (and therefore us) to teach us the need to be understanding of other people's children? Along this line, you might ask yourself a Golden-Rule sort of question: "Would it make sense to send one of the girls to prison for doing the sort of stuff they've shown an inclination to do?" You say, "Of course not! They're not criminals. They're just good girls who've done a few bad things." Do unto others, George. I've never believed it but some of your aides say you like to read books. I assume they mean that you like to have Laura read books to you. Suggest to her, George, that she pick up a copy of Why Our Drug Laws Have Failed and What We Can Do about It, by Judge James P. Gray. Or, just as well, here's a link to a Cliff's Notes version of it appearing in The American Prospect dated 01.28.2002. Cheers! Skål! Your pal, Burtie Boy. (02.12.2002)

Unfairly-suggestive police identification procedures. If I were either a police officer or a prosecutor, I doubt that anything would cause me greater concern than the possibility that I played a significant role in the wrongful prosecution, conviction and punishment of an innocent person. That being so, one would think police and prosecutors would want to learn from the extensive research and use the latest scientific and technological advances to develop the fairest possible nonsuggestive identification procedures. The truth is, some police and prosecutors are trying to develop fairer procedures and some aren't. For those who are, I commend this article from the December 2001 ABA Journal: Second Look at the Lineup -- New Jersey hopes to net fewer false identifications by Mark Hansen. (12.04.2001)

Endangering endangered royalty. I haven't read any of the "Diana" or "Di & Chuck" books, so I don't know if Lady Di ever slapped Chuck, the nice man who might someday be king (if he can outlive his mum, who, if she takes after her mum, might live to a hundred). But we now know that if Lady Di had done so while on a weekend romantic getaway in Latvia, she theoretically might have been charged with endangering the life of a high official. We know that, because that is what a Latvian girl has been charged with for slapping Chuck earlier this week, when he was visiting Latvia. The girl is thin, "red-haired" (i.e., presumably "fiery") 16-year-old Alina Lebedeva. She was standing in a group of teenagers holding British flags. According to at least one reliable American tabloid (I saw it with my own eyes yesterday at the grocery store), Chuck and Cam are not getting along these days, so Chuck, possibly thinking they were "groupies," surely ought not be criticized for merely "approaching" the girls. Anyhow, as he did so, Alina, instead of sticking out her foot to see if it fit the glass slipper he held in his hand, slapped him in that area of his anatomy between the big ears that is also known as his face. She didn't do it with an open hand but with a red carnation, saying, "I'm against the Afghan war." (Although much less serious, the act is somewhat reminiscent of the sort of "peaceful" acts of protest -- e.g., bombings -- perpetrated, or "aided and abetted," by certain "peace-loving" radicals in the late '60's.) The offense carries a maximum of 15 years in prison. More. Not so bad, considering that in some countries with which we are friendly one might get the death penalty for arguably less-serious conduct. More... (11.09.2001)

Endangering kids? In Latvia a mere slap of a prince's face with a flower might constitute endangering the prince's life, but in merry old Dickensian England it's o.k. for a prince or princess or anyone else to slap -- even "smack" -- his or her own kid. "After a nationwide review showing that people did not want to see smacking banned, Health Secretary Alan Milburn announce[d yester]day that parents who use 'reasonable chastisement' will not face prosecution." Elsewhere, "the Scottish Parliament...is preparing to ban all physical punishment of under-threes" (emphasis supplied). An "under-three" is a kid under three years of age. More.

Thoughts on racial profiling and "'consent' searches." It is curious, and I think telling, how easy it is for police to spot and stop and search black drivers [click here and here] when it is so difficult for taxi drivers to spot and stop for black passengers [click here]. New Jersey is considering barring its law enforcement officers from conducting so-called consent searches of motorists during routine traffic stops. See, e.g., this news report and this one. Justice Esther M. Tomljonovich of the Minnesota Supreme Court, in her prescient concurring opinion in a 1997 case, State v. George., broached the possibility of "reject[ing] the concept of consent to search in the context of routine traffic stops and so-called voluntary street encounters." I have come to the conclusion that Governor Ventura and the Minnesota Legislature ought to do just that, prohibit state and local law enforcement officers from conducting consent searches in these contexts. The virtue of this proposal is that, at minimal cost and without the need for more "studies," it would eliminate the incentive of officers to stop motorists, regardless of race, on flimsy grounds in the hope of obtaining "consent" to search. Such a policy would go a long way toward eliminating stops based on racial- and other impermissible types of profiling. Police want us to believe we can trust them to eliminate bias as a factor in stopping motorists. Maybe so. But the routine asking for "consent" to search from stopped motorists of any race is a separate, independent insult to free citizens of a free country. Updates: a) G. Callahan & W. Anderson, The Roots of Racial Profiling, Reason Magazine, Aug-Sept 2001. b) James Forman, Jr., The Conservative Case Against Racial Profiling, The New Republic, 09.10.2001 issue, on how profiling hurts kids.

When prosecutors forget their role. Last week I linked to an important story in the National Post on the large numbers of claims by women of sexual assault that, on further investigation, turn out to be false. Crying Wolf! A related problem is that some prosecutors and some judges forget their roles in the system. Nat Hentoff's latest column in The Village Voice focuses on a high-profile New York prosecution in which that happened. The story there is not that the complainant was or wasn't telling the truth in testifying she met the defendant in an internet chatroom and that when she met him in person he raped her. The story there is that the prosecutor overstepped her bounds in getting a conviction, that the inexperienced trial judge unfairly relied on the so-called "rape shield law" to deny the defendant his right to confront his accuser, that the defendant had the resources (including an effective attorney) to continue to persue the matter properly and obtain an award of a new trial. It was at that point that the complainant, for reasons left to us to speculate over, decided she didn't want to testify at a retrial, at which confrontation would have been vigorous and possibly devastating to her claim or significant parts thereof. The district attorney then announced his office was dropping the prosecution. If "justice" is simply a fair outcome, then justice finally was done in that case. But if justice is also fairness of process, then for a very long time justice was not done. (11.07.2001)

Is everything unconstitutional? The Pennsylvania legislature in 1998 created the felony offense of "institutional sexual assault." Three male guards in the female wing of a county jail who are accused of the offense are asking that the charges be dismissed on the ground that the underlying conduct was consensual and the legislature may not constitutionally make it a crime for consenting adults to have sexual relations. More (Philadelphia Inquirer). Background: Pa. guards charged; Four officers charged with molesting inmates; Jail sex scandal nets 12 indictments; Sex with guards rampant at women's prisons; O'Reilly: unacceptable abuse by guards. There are a number of approaches that state legislatures have used to criminalize this sort of conduct. One is to criminalize nonconsensual sex generally, defining certain outwardly "consensual" conduct, such as sex by a person in authority over certain categories of vulnerable people, as nonconsensual. Another approach is that taken recently by a number of states, including Pennsylvania, specifically creating a discrete offense of institutional sexual assault that prohibits all sexual contact between guards and inmates. Some have argued that the solution is to hire only female guards for female prisons, and male guards for male prisons. But opponents of that approach claim that would constitute impermissible discrimination in employment. It also wouldn't prevent homosexual abuse of inmates. In any event, you don't have to have a law degree to conclude it's extremely unlikely that any reasonable judge will buy the Pennsylvania defendants' constitutional argument. The key word in the last sentence is "reasonable." (11.06.2001).

Crying "Wolf!" Walter Olson of Overlawyered, whose site is among those you'll find linked to on my Featured Sites page, found an interesting report, dated 09.08.2001, buried under all the terrorism news that started cascading down on us on 09.11.2001. It's "Crying wolf" by Christie Blatchford in Canada's increasingly-excellent National Post. The subtitle states it all: "In a system that assumes children don't lie and women are victims, false allegations happen with alarming regularity and frequency." According to Ms. Blatchford, the Post's criminal justice expert, "[A]bout 41 Ontario women, and 29 in [British Colombia], each and every month falsely cloak...themselves in the most sacred of robes, those belonging to the female victim of intimate sexual violence. And these numbers represent bare minimums, because both Ontario and B.C. have adopted strict definitions of what comprises a false allegation." Detective Wendy Leaver, an expert on false claims of rape, says that "some women enjoy the process. 'It's a sex assault...and as a society, we accept that as horrendous. You wouldn't believe the attention we pay to you.' And some women are outright malicious, and see a rape claim as a way to punish a boyfriend or a former spouse, especially if they are locked in a custody or support battle. Some are mentally ill. And some, as Det. Leaver said, make an impulsive allegation and then, before they know it, are swept away by a justice system in which the political masters have spent the better part of the last decade telling public servants -- police and prosecutors -- that, as she put it, 'Women will be believed. That was rammed down police officers' throats...and you know why? As I always say when I lecture about this, because of the way [police] did things 15 years ago.' Those were the dark days for genuine victims: Sex assault was not treated seriously; women were often disbelieved by police and grilled unfairly about their sexual histories; there was little sensitivity to be found anywhere in the system...." Click here to read the entire article, which I recommend. Also of interest by Ms. Blatchford: Let's spank all the lawyers. (10.30.2001)

Lord Chief Justice on jail sentences. "If courts are imposing short-term sentences, they should 'pause' and ask whether half the jail term would do. 'If you are going to sentence for 12 months, would six months be sufficient and achieve exactly the same benefits for the public, at lower cost to the public and our prison system?'" So says the Lord Chief Justice, Lord Woolf, Britain's most senior serving judge. More (UK Times) (10.26.200)

Prosecuting skinny dippers. One of the gossip columnists today (10.21.2001) reprinted a memo Sen. Patrick Leahy of Vermont wrote to police officers in 1971, when he was a prosecutor, on the subject of dealing with complaints about skinny dippers. Using Google, I quickly found it on the web at a "naturist's" site. Here's the link. The memo (avert eyes from photo and scroll down to find) is worth a read. (10.21.2001)

Banished from Benson. I grew up at an idyllic time, the 1950's, in an idyllic town, Benson, MN, 130 miles west of Minneapolis on the main line of the Great Northern Ry. and on U.S. Highway 12, both of which took people from Chicago to Minneapolis to Yellowstone and beyond. I once thought of doing a long essay, maybe even a book, called "Passers-through -- a Small Town on the Great American Prairie and the People Who Passed Through." It would have dealt with all the different categories of people who passed through from the town's earliest days -- the traveling vaudeville acts and theater companies that played at the Opera House, the circuses, the tourists, the Gypsies, the hoboes, etc. One chapter would have dealt with the criminals and other "undesirables." There were a number of ways the community dealt with these undesirables. One way was for the police to "escort them" to the city limits and tell them not to come back, perhaps wiring a warning ahead to the next town. Another way was to take them before the local judge. The judge could provide speedy justice, if needed. His sentence for more minor offenses might give the out-of-town defendants a choice: jail time or banishment. Why banishment? It saved the town the cost of keeping the defendants in jail and it passed on the problem people to other towns, where they'd probably have gone in any event after being released from jail. Banishment isn't used much in most states. But, as this article notes, it's still used in a couple. One county in Georgia profiled in the story maintains a website that lists those who are banished. (10.21.2001)

Is "wind-breaking" as a matter of law "involuntary"? That's what an Australian judge appears to have ruled. According to The Age,state's evidence established that one day last year the defendant, David Paul Grixti, 28, of Werribee, "walked towards the Werribee police station watchhouse counter...and, after being asked if he needed help, 'poked the rear end of his body out' and broke wind." A senior constable testified Grixti was looking right at him as he did this. He and another officer testified that they felt the act was intentional, that they smelled a "stench" immediately thereafter, and that they were "disgusted" by it. Grixti was convicted earlier this year in a magistrate's court of "offensive behavior" and fined $200 (Aus). Grixti appealed and obtained a trial de novo in county court before Judge Leslie Ross. The report indicates Ross "dismissed" the case as "a waste of time," but one never knows what to make of a newspaper report of a trial. It is possible he found Grixti not guilty on the merits, because he also reportedly stated the state's evidence was insufficient to prove beyond a reasonable doubt that Grixti acted intentionally. He said that the act is "quite often involuntary" and that Grixti's bending over may have been intended to make the situation "a little more comfortable." Finally, he said, "I don't believe...you can turn that particular piece of human behavior on at will." In other words, he seems to have ruled that as a matter of law all wind-breaking is "involuntary." (09.08.2001)

If "wind-breaking" is "voluntary," is it protected expression? If the venue of the just-reported case had been an American court and if the defendant had claimed his act was not only voluntary but expressive of his opinion, then the issue would have been more momentous, to wit, Is such conduct sufficiently "expressive" to be deemed protected expression under the First Amendment? See, e.g., Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991), and United States v. Eichman, 496 U.S. 310 (1990). One would hope that before the issue reaches the United States Supreme Court, some of the leading law school law reviews will address the issue in depth so that the Court will have the benefit of the editors' scholarly input, including their recommendations, something the Court no doubt appreciates. Cf., Alex Kozinski, Who Gives a Hoot About Legal Scholarship? 37 Hous. L. Rev. 295 (2000). The editors' scholarly delvings should include a research of the literary "canon" on the subject. The literary alter ego of a great American novelist, Kurt Vonnegut, Jr., is the incomparable Kilgore Trout, an unsuccessful science fiction writer who makes recurrent appearances in Vonnegut novels. In Breakfast of Champions Trout recounts that he "once wrote a story entitled 'The Dancing Fool.'" He continues: "Like so many of my stories, it was about a tragic failure to communicate. Here was the plot: A flying saucer creature named Zog arrived on Earth to explain how wars could be prevented and how cancer could be cured. He brought the information from Margo, a planet where the natives conversed by means of farts and tap dancing. Zog landed at night in Connecticut. He had no sooner touched down than he saw a house on fire. He rushed into the house, farting and tap dancing, warning the people about the terrible danger they were in. The head of the house brained Zog with a golf club." Indeed, in an interview Vonnegut himself once said, "I tell you, we are here on Earth to fart around, and don't let anybody tell you any different." Can "wind-breaking" be "voluntary"? Can it constitute protected expression under the First Amendment? I submit that to ask the questions is to answer them. (09.08.2001)

Slopping out may be on the way out. Nelson Mandela, who knows of what he speaks, has said that "no one truly knows a nation until one has been inside its jails." Article 3 of the European Convention on Human Rights, which went into effect in 1999, provides that no one should be subject to inhuman and degrading conditions. One such practice that, surprisingly to me, still exists in prisons and jails in certain European countries is the practice known as "slopping out." For example, in a number of Scottish prisons or jails (call them what you wish), inmates are confined to their cells 23 hours a day and have no access to toilet facilities in the cells. Instead, they are provided with buckets, which are "slopped out" every morning. England ended the practice in 1997, but Scotland has been slow to do so, balking (in stereotypical Scottish fashion) at the cost of providing inmates with adequate access to toilets. Relying on Article 3, Scottish courts this year have been ruling in individual cases that the practice is inhuman and degrading. Now 60 inmates at one prison have filed a "joint action" seeking compensation and transfer. Faced with the likelihood that more inmates will file claims and faced with the likelihood of having to both pay damages and modernize the prisons and jails, Scotch government officials finally may have gotten the message. [more] (08.15.2001) For some of my views on punishment and prisons, click here. For a recent example of an American case in which a class action was used to attack violations of constitutional rights of inmates, click here.

"It shows how long-lived customs are in the country," he said. Once upon a time my kids had to memorize the names of every country and capital and locate them on blank maps. One country whose name they enjoyed pronouncing was Burkina Faso, the capital of which is Ouagadougou, even more fun to pronounce. Today, dateline Ouagadougou, it is reported that villagers in Imasago subjected a man suspected of sorcery to the quickest form of justice. Specifically, the villagers beat him with a club and then buried him alive. One of the country's human rights officials deplored the murder but added, "It shows how long-lived customs are in the country." One's reaction may be to think of the mob's act as an act of base savagery, totally foreign to us. But just 81 years ago, in Duluth, right here in "nice Minnesota," members of an angry mob made up of the good men of Duluth broke into the police station and into some cells, pulled out three young black circus employees arrested on suspicion of raping a local girl, and dragged them up a hill and lynched them. Afterward, they were so proud of what they'd done that they posed for photographs next to the hanging bodies. One of those photographs was even made into a post card. Click here for links to photographs and details. It has always seemed to me that the line between savagery and civilization is a pretty thin one. Scratch the surface of a man and don't be surprised if you find a tiger. We ignore this reality at our peril. The men who wrote many of the books of the Old Testament understood what a contradiction is man, capable of great things and utterly base things. And fortunately for us, the drafters of our Constitution also keenly understood human nature. How else explain the brilliant system of myriad and intricate checks and balances they so wisely crafted? (08.23.2001)

Compare: a) this case (reported in NYLJ) in which a U.S. Circuit Court of Appeals upheld as proper the dismissal of a juror in a criminal prosecution over defense objection because the juror stubbornly insisted at the outset of deliberations that she had made up her mind the defendant was not guilty and wouldn't change it, with b) Prof. Cass Sunstein's description (in the New Republic) of his participating with other jurors in deliberations in a criminal case, during which a similarly-stubborn juror made it clear at the outset that he had made up his mind the defendant was guilty and wouldn't change it. Am I the only one who believes the U.S. Circuit Court of Appeals' decision in the first case merits further review?

Must police record interrogation? A mid-level appellate court in NY has upheld a statutory rape conviction of a teenager based in part on a confession, rejecting the contention the police should have recorded the custodial interrogation, particularly since the defendant suffers from a relevant learning disability. [more] In State v. Scales, 518 N.W.2d 587 (Minn. 1994), the Minnesota Supreme Court, exercising its supervisory power, prospectively ruled that all interrogation -- including the giving of information about rights, the obtaining of any waiver of those rights, and all questioning -- must be recorded when feasible or when the interrogation occurs at a place of detention. The Court further held that suppression of statements is required if the violation of the recording rule is substantial under the surrounding circumstances. In effect, the decision adopted the recommendation of the drafters of the American Law Institute’s Model Code of Pre-Arraignment Procedure and the Uniform Rules of Criminal Procedure, both of which require the electronic recording of custodial interviews. See Model Code of Pre-Arraignment Procedure § 130.4(3) (1975) ("The regulations relating to sound recordings shall establish procedures to provide a sound recording of ... (c) any questioning of the arrested person and any statement he makes in response thereto"); Unif.R.Crim.P. 243(b), 10 U.L.A. 32 (Master ed. Supp.1992) (as to an individual in custody, "[t]he informing of rights, any waiver thereof, and any questioning must be recorded upon a sound recording device whenever feasible or if questioning occurs at a place of detention"). In my opinion, the decision, written by the redoubtable Justice Rosalie E. Wahl, is far and away the most objectively beneficial criminal law decision of the Minnesota Supreme Court in the last 30 years. Before the decision, much court time relating to admission of and use of confessions was expended in he-said/she-said disputes relating to questions asked, answers given, etc. Trial courts at suppression hearings generally resolved factual disputes in the prosecution's favor. Prosecutors at trial were often left with the difficult task of trying to convince sometimes skeptical jurors that police did not over-reach and that defendants actually said what police testified they said. The decision served a three-fold purpose. It served the prophylactic purpose of helping to ensure police comply with Miranda and other requirements, thus benefiting arrestees. It dramatically reduced the need for extensive pre-trial evidentiary hearings to resolve suppression issues (and also provided an accurate record for appellate review), thus benefiting the court system. It gave prosecutors a persuasive record for trial of defendants' confessions. When the court first released the decision, police officers and prosecutors literally howled like Chicken Little that the sky had fallen. A year later they were trumpeting the virtues of the case, which intelligent defense counsel had appreciated immediately. Now most intelligently-run police departments in Minnesota routinely provide their officers with portable recorders for use in the field, something that will increase the likelihood that in the future courts will be skeptical of any claim that recording of interrogation in the field was not feasible. Scales is a decision I commend to police, prosecutors, defense counsel and judges in other jurisdictions. (08.01.2001)

China's "execution frenzy." From a press release by Amnesty International dated 07.06.2001: "At least 2,960 people have been sentenced to death and 1,781 executed in the last three months of China's 'Strike Hard' campaign against crime....More people were executed in China in the last three months than in the rest of the world for the last three years....The campaign is nothing short of an execution frenzy....Not for many years have mass rallies and sentencing been seen on this scale. Executions have been recorded all over the country for crimes as diverse as bribery, pimping, embezzlement, tax fraud, robbing of petrol and selling harmful foodstuffs, as well as violent crimes. Hundreds have also been executed for drug offences under the slogan 'treasure life, reject drugs.'" [Click here for entire press release]

Robert Downey, Jr. The civil justice system has strayed improperly into areas better left to the criminal law. Robert Downey, Jr.'s recent troubles with the criminal justice system because of his drug addiction exemplify the reverse point: that the criminal justice system has strayed into areas in which it arguably has no business. Reconsider, in this respect, Roger Ebert's excellent review of Traffic, the film essay that dramatically deals with "the drug problem" on multiple levels. For an interesting policy analysis of the issue of possible drug legalization or decriminalization, alternatives every thoughtful citizen at least should consider, I recommend Thinking About Drug Legalization by James Ostrowski, an analysis published by the Cato Institute. Here's a link to an interesting discussion of the issue by William F. Buckley and a professor at Dartmouth Medical School. For more, read on....

Rocky was wrong about drug laws. In my youth I was what was known as an "Eisenhower Republican," later a "Rockefeller Republican" -- that is, a liberal Republican. On the right is a picture of me shaking Rocky's hand when he was in Minneapolis in the fall of 1960 during a campaign appearance for Dick Nixon. I lost respect for him when as Governor of New York he demagogically supported mandatory minimum terms for drug offenders and when he ordered the crude and ultimately bloody invasion to retake Attica prison during a prisoners' uprising. Governor Pataki of New York has recently proposed modifying those harsh brainless laws. If you favor repeal of mandatory minimum laws, as I do, you may want to visit the site of FAMM (Families Against Mandatory Minimums Foundation) and DRCNET, the latter of which provides a form letter you can e-mail to your Congressperson and Senators urging repeal of federal mandatory minimums. Latest developments. In the future I will be posting a piece explaining why I believe the Sentencing Guidelines, both here in Minnesota and on the federal level, have been huge failures, to the shame of all of us as citizens (and, for some of us, shame also as "Christians").

Astounding fact. The NYT for 03.26.01 quotes Kara Gotsch of the ACLU's National Prison Project as saying: "We [in the U.S.] have 25% of the world's prisoners, but we're only 5 percent of the world's population."

Announcement. We've finally gotten around to launching our new webzine/blawg: BurtLaw's The Daily Judge:

It is not an online newspaper and is not affiliated with or intended to be mistaken for any existing or previously-existing newspaper or journal. Rather, it is a so-called "blawg," a law-related personal "web log" or "blog," one with a subjective, idiosyncratic, and eccentric sociological and social-psychological slant that focuses not on the latest judicial decisions of supposed great importance but on a) the institution of judge in the United States and in other countries throughout the world, b) the judicial office and role, c) judicial personalities, d) the great common law tradition of judging as practiced here and throughout the world, e) judges as judges, f) judges as ordinary people with the usual mix of virtues and flaws, etc. We link to newspapers and other sources in order to alert the reader to ideas, articles, stories, speeches, law books, literary works and other things about "judges" that have interested us and that may interest the reader.

We don't promote our blawgs, but readers of this blog and of our affiliated political opinion blog, BurtonHanson.Com, may be interested in it. We don't think there is another blawg quite like it.

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