Oh, hell yes!

Remember this charming incident? Happily, the powers that be in Texas have decided that conducting utterly unjustified, totally visible to all cars on the highway, criminally invasive (as in would-be-called-rape-if-I-did-it) cavity searches is a fireable offense for a highway patrol officer. Huzzah!

They had to fire this officer. There could not have been any recourse short of that. (Although I wouldn't object if someone took me seriously on the digital penetration of the female sex organ angle.) The powers that be had no choice but to send the message to all their officers that this conduct is unacceptable. Except calling it merely unacceptable puts it in the category of sending off-color emails at work or letting a date drive your patrol car. Roadside, warrantless cavity searches need a whole different category. (Like criminal?)

No word yet on the other officer involved, the male officer who initiated the stop. He didn't conduct the actual search, but he sure didn't stop it, which is often enough held against my clients to make them as liable as the actual perpetrator. The articles indicate that the male officer called the female officer to conduct a search. Now, I guess he could have intended something less invasive, but surely he didn't call a female officer just to do a pat-down. He must have had something in mind. I think he should probably get the boot, too.

I don't relish the idea of people losing their jobs. It would be financially devastating for most people. If it's a job you love, it would be very difficult to be fired in such a way that it could very likely be career-ending. (I can't imagine it will be easy for this woman to get another law enforcement job with this on her record.) So, I get that it's a big thing and must really suck for her. But it was absolutely deserved and I do relish seeing anyone involved in law enforcement, whether cops or prosecutors, being held accountable for such gross misconduct. Turning a blind eye or just issuing a slap on the wrist would have been unacceptable. No, it would have been worse.

Yikes, don't get raped in New Mexico

A State Representative in New Mexico has made quite a name for herself this week. Yesterday, Cathrynn Brown introduced H.B. 206, which would classify an abortion procured for a pregnancy that resulted from rape or incest as tampering with evidence. Per the bill:

Tampering with evidence shall include procuring or facilitating an abortion, or compelling or coercing another to obtain an abortion, of a fetus that is the result of criminal sexual penetration or incest with the intent to destroy evidence of the crime,

That "procuring" language is what caught a lot of peoples' attention. The plain language of that proposed bill sure makes it sound like a woman who voluntarily had an abortion (aka procured an abortion) after being raped or being the victim of incest would be committing a third-degree felony punishable by up to 3 years in prison. Naturally, a lot of people weren't big fans of the idea of turning rape victims who choose abortion into felons.

Actually, it could include the doctor or anyone else who helps the victim get an abortion, couldn't it? Facilitate is pretty broad.

When I first read the story, I understood why people found the language alarming. But I was also pretty sure I knew what the representative was trying to get at. Today, she issued a statement explaining exactly what it was she was trying to accomplish. The goal of her proposed legislation is to penalize the rapist who would compel or coerce a victim into having an abortion.

A couple of things.

1) Isn't compelling or coercing a woman to have an abortion against her will already illegal? Like battery or something?

2) If it really isn't already covered, shouldn't it be criminalized under some theory other than "tampering with evidence?"

3) How often is the fetus itself really the evidence used in a rape case? The evidence is semen from the rape kit, the victim's testimony, etc. To the extent that an incest prosecution can't go forward without a paternity test from the fetus, that's a poor excuse for forcing a girl to carry to term a pregnancy that her body and/or emotional state can't handle.

4) Brown is endorsed by Right to Life organizations. This naturally raises suspicions when she proposes any legislation targeting abortion. Over the past couple of years, more anti-abortion legislation has been proposed than ever before. The angles are becoming more and more creative, less obvious. And they're all proposed by people who claim only to have deep care and concern for women in mind. So forgive me for wondering if Brown's ulterior motive in proposing this bill is really to stop as many abortions as possible. That motivation would certainly explain her carelessness with the proposed language. If you're focused on stopping as many abortions as possible in whatever way possible, you might not notice that you're turning rape victims into felons for not wanting to carry their rapists' babies.

Fortunately, Brown's careless language has received enough national attention, I don't see how the bill can pass as it currently stands. As it shouldn't.

No Facebook for you!

Judges and legislators love to be tough on sex offenders. As a group, sex offenders are about as reviled as they come. Over the past two decades, policy-makers have come up with more and more ways to isolate sex offenders who are not subject to the physical isolation of prison. We make them register with local authorities and have made that process progressively more onerous and expensive with each year. In many cases, we've made the penalties for not registering correctly or at all far worse than the penalties for the initial sex offense conviction. We've ordered them not to turn on their lights on Halloween so children won't come trick-or-treating. They're  not allowed to dress up like Santa. They can't live within so many feet or yards of a school or a park or a day care. There are some parts of this country where the only place sex offenders can live is under a bridge. Literally. As it's the only spot not within the prohibited distance of a prohibited facility.

But Facebook is a bridge too far. According to the 7th Circuit Court of Appeals anyway. In 2008, Indiana passed a law prohibiting registered sex offenders from using Facebook or other social networking sites. (No Goodreads?!) The three judge panel found the ban to be overbroad and therefore unconstitutional. While states can restrict speech through content neutral laws if the restrictions are reasonable as to time, place, and manner of speech. But the restrictions must be narrowly tailored. That is where this law failed in the eyes of the panel. Most of what happens on Facebook is entirely innocuous communications, they say. This broad ban is kind of like bombing a house to kill a spider. And since it restricts people from engaging in communications (aka speech), the complete ban that is not narrowly tailored to address a legitimate state interest runs afoul of the First Amendment.

In Indiana, registered sex offenders are already prohibited from engaging in improper communications with minors. There's no reason to think that Facebook or Google+ or other similar sites are such hotbeds of inappropriate activity that all registered sex offenders should be totally banned from participating at all, even to like their favorite movies or read about their aunt's sinus surgery. So, Indiana Legislature, all you did here was waste the time and money that went into passing this law. And there was time and money put into litigating this lawsuit. All because you wanted to be as harsh to sex offenders as you could, and isolate them as much as possible. Maybe instead of just passing whatever damn fool idea someone comes up with to further push sex offenders into social exile, legislators should start to be a little (no, a lot) more thoughtful about how to deal with sex offenders. For starters, let's try to identify the real, actual, legitimate public safety concerns instead of tilting at every bogeyman windmill anyone can think of.

Is stealing God's money worse than stealing mine?

In North Carolina, a judge sentenced three men to 53 to 71 years in prison for 11 counts of robbery. For just about anyone, not even being eligible for parole for at least 50 years has the same effect as a life sentence. Odds are none of the three will get out.

In arriving at this long sentence, the judge made note of the scene of the crime: a church during Sunday service. According to the judge, "You didn't just steal money from people. You took God's money. You took the Lord's money."

Naturally, the men appealed their sentences as high as they could. (They couldn't appeal their convictions because they pled guilty.) Appellate courts refused to remand the case for new sentencing because the sentences were within that allowed by law, though the Fourth Circuit Court of Appeals did note that judges should probably avoid the perception that they're using the bench as a pulpit.

Well, gee, that's great, 4th Circuit. But can I speak as a homeowner whose home has been burglarized here? Let me assure you that if I heard the guy who busted into my home got a lighter sentence than guys who broke into a church, I would be quite put out. God's money (whatever the hell that is) isn't worth more than mine. The sanctity of a church isn't somehow greater or worthier than the sanctity of my home. In my view, stealing my grandmother's ruby necklace is way worse than stealing anything one could find at a church. And breaking into a person's private home is more of an invasion than breaking into a non-residential building. See how this can go, Mr. Sentencing Judge?

The whole point of the sentencing guidelines my state has gone to is to remove this kind of favoritism in sentencing. The "my offering plate money is worth more than your piggy bank coins" treatment of cases isn't fair or just or right. We all have our own inherent biases, but a sentencing judge should be aware of his or her biases and should do everything possible to prevent those biases from affecting a sentencing decision. This sentencing  judge may have issued a sentence that is legally allowable, but his words trouble me. If nothing else, maybe this judge will learn from all of this that he should be a little more thoughtful about what he says to explain his sentences. And if he realizes he wouldn't have sentenced the same had the crime scene been an Islamic mosque or a Buddhist temple, then we can hope he will learn not to let that bias affect him the next time.

Does law school need to be fixed?

The legal profession has taken a hit over the past few years. When the economy takes a big downturn, law firms are as affected as anyone. Hiring freezes, lay-offs, firms closing their doors. Naturally, the people hardest hit are the newbie lawyers, fresh out of law school.

For a couple of years now, I've been hearing a lot of friends and acquaintances bemoaning the fact that they ever went to law school. They're deep in law school debt but unable to find those high-paying jobs that were supposed to be the key to paying those school loans. I've seen more than a few Facebook posts urging people not to go to law school. (Though they all agree that my only choice was to go to law school and become a lawyer. They just don't think most people should follow that path.)

So now with law school enrollment down, law schools are looking for ways to beat out other schools for the most students. Today I saw two articles with interesting proposals for changing the way people become lawyers. Law school is typically a 3 year program, coming after a 4 year undergraduate degree. The University of Kansas has announced a new program that will enable an incoming undergraduate student to cut a year out and get both degrees in only 6 years. Then the New York Times proposed allowing law students to take the bar exam after only 2 years. If they pass, then no more law school. If they don't, no problem, just go back for that 3rd year.

These are interesting ideas that might work for some students. Goodness knows, anyone who isn't a millionaire would love to save a full year of law school tuition. I would generally agree that the stuff that is on the bar exam tends to be the stuff you study your first two years of law school, while the 3rd year involves a lot more elective study. Personally, I loved law school and would have very much missed out on that 3rd year. Some of my favorite classes were those elective seminars on more diverse topics. But I know a lot of people would have been just fine skipping that year and getting straight to the practice of law. My concern, though, is that we already don't spend enough time in law school teaching people how to actually be lawyers. Cutting that year of school out means it's the clinics and the internships that will go. People will be so busy taking courses necessary for the bar exam, they won't even get to a trial advocacy class.

The KU plan likewise might well work for some students but probably wouldn't have been ideal for me. While I was destined to be a criminal defense attorney and knew that for decades, I wasn't ready to a) attend a giant state university for undergrad or b) go straight from undergrad to law school. I took several years off between college and law school and was a much better law student for it.

I'm also a little worried about how my beloved Wisconsin will fare if other law schools or states start cutting out some years of school as long as people can pass the bar. One of the nicest perks of attending law school in Wisconsin is that you don't have to take the bar. The state still has a bar exam, but people who graduate from either the UW or Marquette University (in Milwaukee) and who satisfy the specific bar requirements do not have to take that exam. I wonder how many Wisconsin law students would be willing to take that damn test if it meant they could get out of the last year of law school. Of course, idiots like me who took jobs outside of the state still had to take a bar exam anyway, so it's not like we Badgers all went through school bound and determined never to take a bar.

Bottom line is I'm glad I graduated from law school a decade ago and am well-established in my career. I'd hate to be trying to break in now. I'm also glad I'm not a professor, clinical instructor, or law school administrator whose livelihood depends on figuring out how to attract as many law students as possible. I'll just watch all this unfold, watch as more proposals like this are made, from the safety of my law-license-having, good-job-holding ivory tower.

Perhaps a little perspective is in order

Last week, the US Supreme Court heard oral argument on a DUI case out of Missouri. The issue is whether police officers can draw blood from DUI suspects without a warrant. Missouri allows it, but of course, the Fourth Amendment is the supreme law, so if SCOTUS says it's not ok, it won't be ok.

Missouri's claim is that exigent circumstances justify not following the warrant requirement. Exigency is a well-established exception to the warrant requirement. Like if cops hear gunshots or screams from inside a home, they don't have to dither around and wait for a magistrate to sign off before they can enter. (I'm ok with that one.) Or if it sounds like the suspected druggies are flushing their stash down the toilet. Or if the suspected crime scene is a car that can drive off. Lots of circumstances have been found to be exigent enough that cops needn't wait for a warrant, so it's no surprise that Missouri would think blood alcohol levels dissipating over time would qualify as exigent.

But a funny thing happened during the argument. The attorneys and justices kept coming back to the question of how long it would take to get a warrant: 20 minutes? half an hour? two hours? They were at times trying to parse how much time is reasonable to make cops wait to try to get a warrant. And all I could think was how the folks who wrote the Fourth Amendment and/or insisted on adding it to the Constitution before ratifying that document would laugh in wonder at the idea that we could get a warrant in under two hours. The idea that a prosecutor and magistrate could be reached and act on a warrant application in 20 minutes would sound like science fiction to people from an era when the magistrate only made it to your town once every three months. So the idea that having to wait a whole hour or two is so unbearably inconvenient that it demands ignoring the warrant requirement would have to be offensive to those original proponents of the Fourth Amendment, wouldn't you think?

Do juries hate fat, female defendants?

I saw this story on Slate and was curious. There are so many questions I have about how this study was done, what tweaks to the study could reveal, and what it really means. According to a team of Yale psychologists, the short story is that men are more likely to find fat women guilty than fit women. It boils down to fit, thin women being better perceived (especially by men) than overweight women. The study asked subjects to judge people on a charge of check fraud. The male subjects tended to find the fat women guilty, not the thin women.

So many questions. The headlines just blast that fat women need to watch out, 'cause men will find them guilty more often than not (when they're charged with the fairly lazy, non-labor-intensive crime of check fraud). And to the extent that this study reveals that men are likelier to assume that fat women are guilty of check fraud than are thin women, sure. It is disturbing to think that men are more willing to assume that fat women possess criminal intent than do thin women, at least as to this non-labor-intensive property crime. But I want the researchers to change the charged crime. As it stands, can we really assume that men generally assume fat women are guiltier than fit women? Or is that only when the crime involves stealing in a somewhat lazy way? I could understand some connection between a wrong assumption that fat women are lazy meaning they are connected to "lazy" crimes like check fraud. (As compared to a more active crime, like actual theft from a person or robbery, something that involves a physical confrontation.) Offensive as the perception that fat = lazy is, I do acknowledge that it exists. I wonder, then, if that's what this study is revealing, that people perceived as being lazy commit lazy crimes.

What if the charged crime isn't a property crime, a crime that doesn't involve any physical labor? Instead, what if the charged crime does involve some kind of physical work? Does the fat woman/thin woman bias still exist? What if the crime involves a person crime, like battery or murder? Are men still likelier to find a fat woman guilty than a thin woman? Or does the perception change, that a thin woman is likelier to commit a crime that involves some kind of physical activity? What if it's a drug crime? Child abuse? A sex crime? Or would the results be the same, no matter what the charged crime? Are men just big, dumb jerks who assume the worst about fat women while giving thin women the benefit of the doubt?*

I've no doubt that jurors engage in physical/racial/ethnic/gender stereotyping of defendants, at least to some degree, no matter what the charged crime. There's a reason all defense attorneys want to dress their clients up in nice clothes and have presentable family members in the courtroom. Perception matters. To the extent that this study reveals any trends, it's useful. But, man, there has to be a whole lot more we can divine.  So, researchers, get back to work. Tell me what other biases I need to be prepared to face from potential jurors. Because I haven't had a check fraud case in a long time.


*in the interest of full disclosure, men aren't my favorite people right now, so I can't quite dismiss the "men are just big, dumb jerks" theory. :) At least I acknowledge this bias in myself.