Tuesday, June 16, 2015

So I've been really quiet lately. I know that. I feel like a little bit I've lost my voice.

In a way, I feel like my life has turned into a Wile E Coyote cartoon. Like I've run off a cliff and the drop is coming, but it just won't quite happen. Family health issues. Financial issues. Dog issues. Work issues. The hits just keep coming and yet somehow, I haven't fallen yet.

I don't feel I'm able to keep up with everything (or anything) I want to do out of life, that I can't continue to be the truest me I can be because I'm still just churning my legs so madly, hoping the inevitable fall might miraculously not happen.

There's a huge part of me that just wants the damn fall to happen already. If I could just fall, then I could start picking up the pieces, maybe move on. But so far, I've managed to prevent the fall. I haven't come close to making it back to solid ground, but I've kept my legs churning enough that I've avoided the abyss.

It's exhausting. I just want resolution. I want to fall already. Fully, completely, irrevocably. This endless holding on needs to be done.

And I really need to get back to being me.

Monday, April 20, 2015

In praise of Kansas. On Felony Murder, anyway.

An amazing thing happened today. I read a news story and it made my beloved state of Kansas seem better by comparison. I didn't know that could happen any more.

When it comes to felony murder, though, Kansas actually does do it better than some other states, Indiana in this specific instance.

Most people have a general sense that of what felony murder is. The simplest definition is that it's a killing in the course of an inherently dangerous crime. You break into a home and kill the surprised homeowner, you can be found guilty of felony murder. The death doesn't have to be premeditated or intentional. So if you're fleeing the crime scene in your car, police in pursuit, and you cause a car accident that kills someone: felony murder.

Felony murder as a concept was designed to ensure people who committed violent felonies that lead to someone's death wouldn't avoid punishment for murder because the state couldn't prove critical elements, like premeditation and intent. First degree murder varies a little from state to state, but that is generally the top level offense that requires both premeditation and the intent to kill. In Kansas, second degree murder simply removes that element of premeditation. A second degree murder is an intentional killing. Then there are the reckless murders, the voluntary manslaughters (think heat of passion killings), and the involuntary manslaughters. Felony murder was designed to make a prosecutor's job easier by allowing them to get a first degree, top level murder conviction, without all that pesky proof of intent to kill.

As a concept, it's not a terrible idea to say if you're going to break into a person's home with a gun and that homeowner ends up dead, we don't much care if you didn't go in intending to kill anyone. If you decide to commit a dangerous crime, especially if you bring a deadly weapon, and you kill someone, you really ought to suffer some serious consequences.

But the way felony murder works in practice, it covers non-triggerpersons. It covers getaway car drivers, even people who had no idea anyone was bringing a gun. Say you're part of a deal to buy $50 of pot and something goes sideways, leaving the buddy you went to the deal with dead, killed by the dealer. Well, selling drugs is an inherently dangerous felony, so you could find yourself grieving your friend from a jail cell as you face a felony murder charge.

Or even worse. You could be a stupid teen and decide to break into a home with 4 of your friends. You could all think the house was empty, you could all be totally unarmed. Then when the homeowner, who was home after all, confronted the intruders with a gun, killing one of them, you could be facing a felony murder charge. In Indiana, anyway.

That is what happened to 4 teens from Elkhart, Indiana. Four young men who were teens when the break-in happened are now all serving sentences in the five-decade range when not one of them nor their dead companion were armed. The only person who had a gun was the homeowner, the only shots fired a lawful act of self-defense. We've come a long way from making sure an armed criminal who kills someone doesn't convince a jury to convict him of some lesser crime.

And this is what brings me to how Kansas does it better. While a lot of odd scenarios can lead to felony murder charges in this state (that small-time pot deal is a real case), the Elkhart case is one that could not happen in Kansas. Here (and in many other states), we have recognized one limitation on the felony murder doctrine. When the act is the result of the lawful act of a third party, there is no felony murder.

When a homeowner or other crime victim kills an assailant, that is a lawful act of self-defense. When a police officer kills the criminal (assuming it's a proper police kill), it's a lawful act of defense of self and/or others. The Kansas rule is that no criminal liability can attach for that intervening, lawful act. Kansas is not alone in limiting felony murder this way. The last time I researched this question, the no felony murder for a lawful act rule was the rule in the majority of felony murder states.

Evidently, Indiana is not in that camp. Instead, Indiana wants to incarcerate these 4 young men for decades. The oldest of these guys is now 20; the break-in happened in 2012. So we're talking about dumb guys who were 15, 16, 17 years-old when they stupidly, criminally broke into a house they thought was empty. No doubt they committed a serious crime, one that undoubtedly traumatized the homeowner. No doubt the homeowner's life has been altered forever by the events of that day, through no fault of his own. And it's no doubt a tragedy that one of these foolish young men lost his life. But I don't see how society is made better by having the other four young men lose most of their lives, either.

In Kansas, these guys would have been convicted of aggravated burglary. Depending on their criminal histories, many of them might have been eligible for probation. To me, that seems a far more appropriate outcome. Our prisons are full enough without locking away for life teenagers who didn't kill anyone. We've gotten so far away from what felony murder was originally meant to be. It's past time to rein this out of control theory of murder back in. The Indiana Supreme Court heard arguments on the Elkhart case in February. I would guess the decision should come later this year. This would be an excellent chance for Indiana to restore a little sanity to its felony murder rule. Really, Indiana, it'll be ok to be like Kansas here. Just this once.

Sunday, February 8, 2015

Alabama's Supreme Court Chief Justice Roy Moore is on the verge of proving that those who do not learn from history are doomed to repeat it.

On a personal level, Justice Moore has already been removed from Alabama's high court once for openly defying federal court orders. He didn't want to give up his view that his god's law was supreme, even after a federal court told him to. But the ethics boards that govern judges weren't moved because they actually follow the laws of this land. And in this land, when a federal court orders a state court to do something and bases that order in the United States Constitution, the state courts have to follow that order. It's not a matter of choice, it's not open for debate. A federal court order is not a suggestion.

Evidently, Justice Moore hasn't learned that lesson because he got himself voted back to the role of Chief Justice of the Alabama Supreme Court and has now "ordered" all the probate judges throughout the state not to issue same-sex marriage licenses tomorrow, in defiance of a federal court ruling. Justice Moore doesn't think that a federal court has any authority to declare the state's same-sex marriage ban to be unconstitutional, so he is telling state judges they can't follow that ruling. He still doesn't seem to understand that the Supremacy Clause of the US Constitution exists and applies to Alabama laws such that when an Alabama law (the same-sex marriage ban) conflicts with federal law (here the Equal Protection Clause of the 14th Amendment), the federal law is supreme. Neither Roy Moore nor any other Alabama state court judge gets to ignore a federal court order. This round will not end any differently for Justice Moore than the first round did.

But there's a greater lesson from history that Justice Moore doesn't seem to have learned from, either. Alabama (and a whole bunch of other states) picked a fight with the federal government a century and a half ago. When you really think about it, what Alabama was fighting against back then boils down to the same stupid crap Justice Moore is fighting against now. I'll assume Justice Moore is one of these history revisionists who will wax poetic for hours on end about how the Civil War (or the war of northern aggression?) was all about state's rights, the nature of our federalist system, yada, yada, yada. I'd guess that he would be the type who would never, ever, ever admit that what it really came down to was slavery. No matter how anyone tries to spin it, though, slavery was absolutely the thing at the center of the fight. Alabama and its sister states of the confederacy wanted to maintain the right to own and keep slaves, to treat a class of people as something less than full citizens (or even citizens at all) deserving of all human and civil rights. You can talk about how that conflict manifested in various ways, but all roads lead back to this. Sure it was about states' rights: the states' right to allow slavery.

So here we are 150+ years ago, and this justice in Alabama once again, in open defiance of federal supremacy, is asserting Alabama's right to treat some people as less than equal, less than fully deserving of recognition, just less. Because that's really what this same-sex marriage fight boils down to. The Justice Moores of the world don't want to be told that they have to accept these families. They don't want to have to recognize couples and families that they think aren't worthy of recognition. The Justice Moores of the world are clinging to their old ways, not open to change. They definitely don't want to have to confront that they might have been wrong in those old ways. The states have the right to discriminate. (Never mind that the 14th Amendment was written in direct response to the Civil War.)

Well, Alabama was wrong about slavery and they're wrong about discriminating against gays and lesbians. Just like Justice Moore was wrong to defy federal court orders years ago as he is to "order" state judges to defy them now. Of course, it's no surprise that people want to pretend that the Civil War was about something more principled than slavery because everyone today recognizes how indefensible slavery is. I similarly hope 150 years from now, people will have as hard a time justifying this anti-gay bigotry.

I feel pretty confident in saying that the only way history will repeat here is that Justice Moore will once again get into trouble for not following the laws of the land, the laws he's sworn to uphold. I certainly don't think one lone once-removed judge is likely to spark another civil war. Instead, I'm going to hold out hope that the next wave of Alabama residents, and possible judges, will learn that defying federal courts in order to maintain a social order that oppresses unpopular minorities is a bad choice to make.

Friday, September 26, 2014


My first conscious sports memory was George Brett hitting a homer off Goose Gossage in the 1980 ALCS. For 4 of the previous 5 years, the ALCS had been the Kansas City Royals against the New York Yankees. Those damn Yankees won every time. Until George Brett, the greatest 3rd baseman of all time (and, no, don't bother arguing with me on that one), stepped up to the plate that fateful October night. I was 7. I knew it was a big moment. I knew the Royals winning was big. But it was my dad's reaction that really stuck with me, because he understood. He told me, "That was a man deciding his team was going to win and making it happen. Not many players can do that."

The Royals finally broke through the Yankees' chokehold that year and got to the World Series in 1980, though they never threatened to win the series that year. 5 years later, my Royals made the World Series again and they won it, as dramatically as anyone had ever won it. Prior to 1985, no team had ever come back from a 3-1 deficit in a 7-game series, but the Royals did it twice. First against the Blue Jays in the ALCS and then against the Cardinals. And the Don Denkinger out call in game 6 of the WS wasn't that big a deal, folks. It would only have been the first out of the inning. We still only needed 1 run to tie that game. And the Cardinals didn't have to fall apart so spectacularly in game 7 anyway. I've always believed 1985 was destined to be the Royals' year and it would have happened no matter what.

But then the very next year, our beloved manager was diagnosed with a brain tumor. And all hell broke lose. The team started losing. George Brett and Frank White retired. The devoted and beloved owners died. For 29 long years, the Royals were mired in misery. Losing year after losing year. 100 loss year after 100 loss year. We became the laughing stock of MLB. A punchline in "Pitch Fever." The team other team's fans don't bother to show up for. We sort of contended in 1994 until a strike ended that season. We definitely contended in 2003 until August. Then last year, we finally ended with a winning record, but still we ended on game 162. Every year, for 29 damn years, we ended on game 162, the last game of the regular season. Every other team in every professional sports league in the US has had at least one playoff appearance in those 29 years. Except for the lovably hapless Kansas City Royals.

It's been a rough 29 years to be a Royals fan.

Until this year. Until tonight. Until we beat the Chicago White Sox 3-1, thus clinching a playoff spot, even if it's only in the WildCard game.

In 2014, the Kansas City Royals will play a game 163. And it feels amazing.

Let's go, Royals.

Wednesday, August 20, 2014

If a cop commits a crime on video and in front of dozens of witnesses, is it still a crime?

Imagine you were walking down a street with a weapon, say a scary-looking assault rifle of some type. Imagine you turned to a person walking down the street near you and said, "I will fucking kill you," while pointing said scary-looking assault rifle at said person. Now imagine it was all caught on video tape with lots and lots of cops around. Just imagine what would happen to you.

I'll tell you: you'd be arrested and charged with aggravated assault. That's one of those crimes cops won't wait to present to a DA for formal charging and an arrest warrant. Cops can actually just arrest you if they see you commit a crime.

Now let's change the hypothetical a tad: imagine the person you pointed your scary-looking assault rifle at while threatening murder was a cop. What do you think would happen to you then? Personally, I think you might be lucky to avoid seeing a few new holes in your body next time you looked in a mirror (not that you'd really be able to look in a mirror because the number of new holes in your body would be incompatible with life). At the least, you'd be surrounded, tackled to the ground, probably roughed up a bit.

But, if you're a cop, well you'd just keep going about your merry business of crowd dispersal and intimidation. Sure, one of your colleagues would pull you away from the guy you were threatening to kill. Probably that colleague would suggest you should cool your heels a bit.

It wouldn't be until the next day after the bystander who caught the incident on video uploaded it before people really noted your out-of-control, criminal conduct.

Of course, this really did happen last night in, where else, Ferguson, MO. That video went viral. Thanks to that, the cop was identified. None of the witnesses could have identified him last night because cops in Ferguson are still refusing to wear badges or anything else with identifying information. He was asked his name and responded colorfully.

Now that the video has gone viral and the cop has been identified, he has at least been suspended.

I could go off on a tangent now about why so many legislators are so infuriated by teacher tenure because it means experienced teachers who have proven their classroom abilities can't just be fired for any reason. Teachers are worried about being fired for things like political reasons or as punishment for speaking up for particular students. Teachers are not trying to keep jobs they're bad at; nor does tenure protect bad teachers. But still, we put an end to teacher tenure in my state.

Meanwhile, just try to fire a cop. A bad cop, a dirty cop, a rogue cop, a murdering cop. They're impossible to fire. Even when you have video of them brazenly threatening someone. They get suspended, usually with pay. They get thorough investigations, hearings with representation, the backing of the police union. Heaven forbid a cop caught on tape threatening a pedestrian should just be summarily dismissed. Can't have that!

But suspending this cop isn't enough. He should be charged with a crime. Aggravated assault is, with a deadly weapon, putting someone in fear of harm. What this cop did fits the bill in my book. I would accept a plea down to criminal threat because I'd be a very reasonable prosecutor. But I wouldn't accept letting it go without criminal prosecution. Any non-cop who pulled that crap would be under arrest already. This guy should be, too.

Think of what that might do to calm tensions in St. Louis County if this cop were immediately charged with a crime. How many images have we seen in the past week of cops acting like thugs? Pointing their weapon muzzles at citizens instead of holding them in a downward position. A cop calling protesters "fucking animals." Snipers atop armored vehicles. Tear gas being thrown, journalists being arrested. And throughout it all, I've seen so much evidence of cops who don't see the people on the streets of Ferguson as the community they volunteered to protect and serve, but as underlings who are to do exactly as they are told, regardless of the rightness or lawfulness of the order. I've seen contempt, not compassion. I've seen disgust, not desire to bridge gaps.

Forcefully letting the community know that cops in St. Louis County do not have a license to threaten, do not have authority to make citizens fear for their lives would be a strong first step to improving relations between the residents of this county and their police force. Charging this cop with a crime we have video of him committing would let the people of Ferguson (and the rest of the US) know cops are accountable in a very real way for their very bad behavior. Oh, and charging him with a crime when we have video of him committing that crime would also just flat be the right thing to do.

Saturday, August 9, 2014

No, John Hinckley Jr. must not be charged with murder

Is the coroner who declared James Brady's death a homicide trying to make a political point? Was s/he subjected to pressure from any prosecutors or police? Or is this coroner just a stickler who says that because the health issues that led to Brady's death can be directly traced back to a gun shot wound he suffered 33 years ago, the death was the result of another human's actions and was thus a homicide?

I really don't know what the medical examiner's office was thinking when it labeled this death a homicide. But what I do know is that trying now to prosecute John Hinckley Jr. for murder would be a stupid, pointless waste of time and resources. It shouldn't even be considered.

I've seen it happen too often that prosecutors file charges without doing research about whether there are bars to those charges only to realize weeks or months later that the charges aren't prosecutable. No one benefits from this kind of react first, research later prosecution. It's not fair to a rape victim whose attacker has finally been identified after decades to let her think the man will be prosecuted because you didn't bother to research the statute of limitations first. Or to tell a grieving parent her son's death will be treated as a murder when the murder laws of your state don't allow that.

In articles I've seen today about this homicide finding, I've seen some rumblings that the case is being "investigated," that prosecutors are "reviewing the ruling." I hope they will actually carefully review the law and think about the case before filing anything because there should not, cannot, be a new trial.

30 years ago, a jury found John Hinckley Jr. was not guilty of charges related to the shooting by reason of insanity. That legal finding ought to be binding on the state. You can't undo that jury finding, can't ignore it, can't say it doesn't matter now. It does. It's law of the case. Eugene Volokh agrees with me on this, and also explains some other legal bars to prosecuting Hinckley now.

So for legal reasons, no one should seriously think trying to prosecute Hinckley for murder now is a worthwhile idea. And prosecutors should think through all of these legal obstacles before they file any charges, not after.

But there's a non-legal reason for letting this go, too, even if he could be prosecuted. John Hinckley was insane when he decided shooting President Reagan was just the thing to impress a woman he didn't know. A jury had no trouble making that finding. As a result, Hinckley has lived in mental health facilities since. Yes, he's now allowed passes so he can spend time at his mother's house, around 2 weeks a month. But he's been supervised and treated for decades. For over 30 years, he has been prevented from hurting anyone again.

Preventing him from hurting anyone is precisely what the criminal justice system's goal for this case was. We have already achieved all we could hope to achieve with Hinckley. He is still within a court's jurisdiction. He is still required to accept supervision and treatment for his mental illness. If his mental health deteriorates, there are already procedures in place to restrict the freedoms he has earned. Nothing more would be gained by trying now to put him in prison (where, by the way, it's almost guaranteed his mental illness would not be nearly as well treated).

The Hinckley case was a watershed moment in the criminal justice system. The outrage that a man who was insane at the time of his crime was found to be insane at the time of his crime was enormous (even if utterly unjustified). There was a false but very strong sense that he "got away with it" by being housed all these years in a mental institution instead of a prison. As a direct result of this case, states across the country altered their laws on mental illness as a defense to crimes. These new laws made it much harder for defendants to rely on mental illness as a defense at trial. The intent of these changes was to make sure the Hinckleys of the world would go to prison, not some "cushy" mental hospital because there was somehow something unjust about treating a person with profound mental illness as a person with profound mental illness.

Trying to prosecute him now would demonstrate that we've learned nothing about how wrong those knee-jerk reactions to his original verdict were. Our prisons are overrun with mentally ill inmates because we've criminalized mental illness. People like John Hinckley Jr. should be in mental hospitals, not prisons. As a society, we're better off when we treat mental illness and show compassion to those who suffer from it instead of throwing them away in prison as people too damaged to bother with.

The justice system's treatment of John Hinckley Jr. has been exactly what it should have been. There is nothing to correct, no reason to pursue new responses to his 33 year-old crimes. There is no reason to reopen that case. Here's hoping the powers that be know that.

Thursday, July 31, 2014

Forensic sciences in the criminal justice system: still a complete mess

Remember 5 years ago, when the National Academy of Sciences published a comprehensive report about the state of forensic crime labs and their impact on the criminal justice system?

Among the systemic failures noted by the NAS (and others, notably defense attorneys):

  • that crime labs are too inextricably linked with the prosecution and investigators, thus infusing bias into the testing process
  • that no national standards existed for many testing disciplines
  • that results are overstated in court
  • that junk science is passed off as conclusive evidence

Well, this might surprise you, but nothing much has changed. Why? Well, I'd suggest it's because the institutions that are currently in charge of the crime labs and the types of testing done don't want things to change. Because admitting things need to change is tantamount to admitting past mistakes. And we know prosecutors, the FBI, and pretty much everyone else involved in prosecuting people don't much care to admit past mistakes.

Now we learn that

Nearly every criminal case reviewed by the FBI and the Justice Department as part of a massive investigation started in 2012 of problems at the FBI lab has included flawed forensic testimony from the agency, government officials said. Washington Post
And the FBI's initial response was to stop the review. A see no evil kind of response, perhaps? If we stop digging, we'll stop seeing all the bad things we've done in the name not of science but of convicting people.

Some of the stuff that was reviewed for that 2012 investigation, and that still needs to be reviewed, includes "hair matching" which I put in quotes because it's such bunk. Tip if you're ever on a jury: if a lab analyst gets on the stand at your trial and starts talking about "hair matching," know said lab analyst is full of it. Unless a hair left at a crime scene has a follicle from which DNA can be extracted, there's no way for a person to use any scientific method to claim to match that hair to the hair of a particular person.

At yet, the FBI did it all the time. The first questions about the conduct of some FBI examiners were raised in 1997. And yet, we still don't have a thorough review of all the cases those examiners touched. People are on death row. People have been executed. But still, to this day, the FBI is dragging its feet about honestly assessing the scope of the problem. With that, I will presume, they're not being as insistent and urgent about making changes as I would like to see. (As I would hope anyone interested in justice and good science would like to see.)

No one benefits when the FBI, or its state and local counterparts, play fast and loose with science in the name of nailing the perp. That kind of mentality leads to wrong results. The evidence, when properly and neutrally examined, should lead investigators to suspects. Too often, though, crime labs that have any connection to, and thus a vested interest in, the investigation look at the evidence with the hope of using it to convict the pre-determined suspect. When crime labs and investigators work for the same team, investigators can get a little too tempted to tell the lab analysts what result they need to see. All forensic sciences are capable of having the results cajoled, massaged, overstated, or just flat manipulated. Yes, even DNA isn't exempt from this because there is always a human element of interpretation to any test result. This is a large part of what the FBI uncovered when it was conducting this review, finding that analysts in court were grossly overstating results, indicating far more confidence in matches than science called for. Heck, in many situations, declaring a match at all isn't supported by the science. But when your colleague is really sure this suspect is the guy and there are no protocols telling you you can't declare a match...

This is why national standards matter and were recommended 5 years ago. So we can't have an overzealous fingerprint analyst in Oklahoma be willing to declare a match based on 3 points of similarity instead of 8 or 9. So we can do away with scientists with all their sciencey credentials coming into court and telling jurors they did "microscopic hair analysis" and the crime scene hair matched the defendant's hair.

This is why the NAS recommended crime labs be made independent of police and prosecutors offices 5 years ago. So that crime lab analysts wouldn't be part of the prosecution team, but would be free to analyze the evidence free of that bias. Scientists left to their own science devices and purposes would never have come up with that microscopic hair analysis nonsense. Instead, it was thought up by FBI employees who were part of the team trying to catch the bad guys.

It is disheartening to see the FBI is still dragging its feet about acknowledging problems with bad evidence, overstated testimony from its analysts, and the bias that comes from working for the agency that's charged with arresting the bad guys. It is horrifying to realize how many people have been executed or incarcerated for decades based on this type of evidence.

There has been far too much delay already. We desperately need to clean up our approach to forensic sciences in the criminal justice system. One more day of delay is inexcusable.

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