Posts
Rick Santorum thinks no one had any thought of gay marriage until the big, bad flaming gays on Will & Grace put the evil idea into our heads.
Silly man really is out of touch. Anyone who watched NBC's Must See Thursday line-up from the 90s knows Carol and Susan held a lesbian wedding on Friends 2 1/2 years before Will & Grace premiered. Friends never gets the credit it deserves.
Saturday, March 30, 2013
Thursday, March 28, 2013
Gee, of course the death penalty isn't racist
People always like to try to argue against the claim that the death penalty in this country is infected by racism. Here is one case that undeniably has an ugly streak of racism running through it. During the sentencing phase of Duane Buck's capital murder trial, the state presented evidence to show that Buck would be a future danger to society. A psychologist with a history of working in corrections testified that race of a defendant was a factor to consider in determining future dangerousness.
If Duane Buck doesn't get relief on this claim and is ultimately executed, we can't have any doubt that racism played a role in it. You can't make claims at a black man's capital sentencing trial about black men posing more of a risk of re-offending than other defendants and then say race wasn't a factor in the decision made at that trial. You can't bring those thoughts into a trial in a nation with our racial history. Hell, you can't pursue the death penalty against a black man in a nation with our racial history without racism playing a role. Can't be done. (Just like Germany won't touch the death penalty with a ten-foot pole because that nation has a rather unfortunate history with its government killing people.)
I can already hear the death penalty apologists saying I'm crazy. It's just one guy. There's no reason to assume the jury considered race in choosing death. They might have had other reasons. Or that it's not a matter of racism that black men commit a disproportionate number of murders, ergo it's not a matter of racism that they get sentenced to death at a disproportionate rate. Here's an idea. There's one sure way we could end the argument. We could just stop the executions. No death penalty, no cries that it's racist. Works for me.
“You have determined that the sex factor, that a male is more violent than a female because that’s just the way it is, and that the race factor, black, increases the future dangerousness for various complicated reasons,” the prosecutor asked Dr. Quijano. “Is that correct?”Way back in 2000, a review of cases was done in Texas to identify all the cases where this doctor testified that race was a factor in determining future dangerousness. The other five are all off death row. But Duane Buck is unlucky #6 who can't seem to get the state to agree that his sentence should also be vacated. This article doesn't do anything to explain why Buck's case is being treated differently from the other five. Is it just a matter of being from a different county with a different prosecutor? You would think that having both a victim and one of the original prosecutors backing his efforts, Buck would be likelier to succeed in seeking sentencing relief. So I just can't imagine what the hang-up is.
“Yes,” he replied.
If Duane Buck doesn't get relief on this claim and is ultimately executed, we can't have any doubt that racism played a role in it. You can't make claims at a black man's capital sentencing trial about black men posing more of a risk of re-offending than other defendants and then say race wasn't a factor in the decision made at that trial. You can't bring those thoughts into a trial in a nation with our racial history. Hell, you can't pursue the death penalty against a black man in a nation with our racial history without racism playing a role. Can't be done. (Just like Germany won't touch the death penalty with a ten-foot pole because that nation has a rather unfortunate history with its government killing people.)
I can already hear the death penalty apologists saying I'm crazy. It's just one guy. There's no reason to assume the jury considered race in choosing death. They might have had other reasons. Or that it's not a matter of racism that black men commit a disproportionate number of murders, ergo it's not a matter of racism that they get sentenced to death at a disproportionate rate. Here's an idea. There's one sure way we could end the argument. We could just stop the executions. No death penalty, no cries that it's racist. Works for me.
Tuesday, March 26, 2013
Musings on the Prop 8 argument
You know, for all the talk we've heard today about the Prop 8 oral argument, my assessment after reading the transcript is that we really didn't learn anything.
It wasn't news that the Prop 8 proponents can't actually identify any harms to so-called "traditional" marriage from extending marriage rights to same-sex couples. Nor was it news that their argument itself is pretty darn flimsy. Even opponents of marriage equality have to admit that the legal justifications offered for denying marriage rights aren't terribly compelling.
It wasn't news that Scalia is squeamish about the gays. Anyone who read his dissent in Lawrence v. Texas was already well aware of his discomfort with the whole idea. His bizarre series of questions to Ted Olson, who argued for the opponents of Prop 8, frankly made him seem a little unhinged. I got the sense Olson had no idea what drug Scalia was on. I think it also revealed at least one deep flaw in Scalia's claimed view of Constitutional interpretation. Scalia claims he interprets the Constitution based on what the commonly-held view of any particular provision was at the time that the provision was adopted. This is how he gets away with saying things like gender discrimination isn't covered by the Equal Protection Clause. Because even though the plain words of that Amendment don't exclude women, the people who voted to adopt that Amendment certainly didn't mean for women to be equal under the law. (If that alone doesn't prove that his claimed style of interpretation is dead, dead wrong, I don't know what will convince you.)
Anyway. He badgered Olson to tell him exactly at what point prohibitions against same-sex marriage became unconstitutional. He wanted to know a date and proclaimed that he couldn't know how to decide the case if Olson couldn't answer that question. Olson did his best to say what an odd, unprecedented question that was and that no court ever has thought about any sort of issue that way, but it would have been nice if one of the other justices could have stepped in and changed the weird subject. Roberts did try, but Scalia was like a dog with a really odd bone. Maybe this doesn't seem like such an odd sequence to you, but to an experienced appellate attorney, it was a very bizarre line of questioning.
In my reading, I don't see any questions posed by any of the justices that should make anyone nervous that their vote might be shockingly unexpected.
We did learn that Scalia doesn't seem familiar with the concept of the US Supreme Court dismissing a case as having been improvidently granted. This came up during the proponent's rebuttal when Sotomayor pondered if the Court had taken this issue too early in the history of same-sex marriage. Scalia's response was along the lines of, "We can't do that bizarre and unheard of thing you're suggesting!" Which struck me as odd because it's so not-unheard of, there's a term for it.
In the end, there was really only moment that excited me. Equal Protection cases are, ironically, not treated equally. There are three levels of review. For laws that separate people on the basis of a suspect classification, appellate courts apply strict scrutiny, the highest level of review around. That pretty much only applies to race and religion. Then there's this squishier intermediate scrutiny that sex classifications get. All others receive rational basis review. For some time now, there's been a fight going on about what kind of review sexual orientation classifications should get. Generally, we're still kind of stuck with rational basis review.
This topic came up in law school and I remember pondering to the class how on earth there was any question because issues relating to sexual orientation are almost always discrimination on the basis of sex. None more so than the marriage issue. I mean, what's the line anti-same-sex marriage people love to say? Gays can get married. There's no law against a gay man getting married. He just has to marry a woman. Sure, the effect of laws prohibiting same-sex marriage is that gay and lesbian persons can't marry the person they would choose. But the actual legal prohibition is about the sex of the two parties, not their sexual orientation. To me, this seems clear as day, but I remember everybody in my class looking at me like I was nuts. (Did some people think I was somehow making light of discrimination against gays? I was just, and still am, trying to make the best argument for why discriminating against gays is unconstitutional.)
I wrote before that I was finally vindicated a tad when the federal district court judge who heard the Prop 8 trial wrote a long, thorough opinion in which he said what I've been saying all along: bans on same-sex marriage are sex discrimination and therefore merit higher scrutiny than mere rational basis. (Of course, he went on to say Prop 8 doesn't survive rational basis scrutiny, either.)
So my very favorite moment from today's argument was this: Justice Kennedy asking, "Do you believe this can be treated as a gender-based classification? -- It's a difficult question that I've been trying to wrestle with."
Come on, Kennedy. Come to the light! It's not a difficult question, not at all. Judge Walker laid it all out for you in that opinion he wrote just for you. If you want to pick my brain on the idea, I'm available, Your Honor.
I have no idea how this case will come out. Maybe it'll be a 4-4-1 vote. Four for, four against, and Justice Kennedy ruling it should be dismissed as improvidently granted. A tie would mean the lower court ruling (declaring Prop 8 to be illegal) would rule. Maybe the decision will focus on the idea that the plaintiffs didn't have Article III standing to bring a federal case. I've got to say, I'm much more interested in tomorrow's DOMA case. That argument will be far more illuminating, I think.
It wasn't news that the Prop 8 proponents can't actually identify any harms to so-called "traditional" marriage from extending marriage rights to same-sex couples. Nor was it news that their argument itself is pretty darn flimsy. Even opponents of marriage equality have to admit that the legal justifications offered for denying marriage rights aren't terribly compelling.
It wasn't news that Scalia is squeamish about the gays. Anyone who read his dissent in Lawrence v. Texas was already well aware of his discomfort with the whole idea. His bizarre series of questions to Ted Olson, who argued for the opponents of Prop 8, frankly made him seem a little unhinged. I got the sense Olson had no idea what drug Scalia was on. I think it also revealed at least one deep flaw in Scalia's claimed view of Constitutional interpretation. Scalia claims he interprets the Constitution based on what the commonly-held view of any particular provision was at the time that the provision was adopted. This is how he gets away with saying things like gender discrimination isn't covered by the Equal Protection Clause. Because even though the plain words of that Amendment don't exclude women, the people who voted to adopt that Amendment certainly didn't mean for women to be equal under the law. (If that alone doesn't prove that his claimed style of interpretation is dead, dead wrong, I don't know what will convince you.)
Anyway. He badgered Olson to tell him exactly at what point prohibitions against same-sex marriage became unconstitutional. He wanted to know a date and proclaimed that he couldn't know how to decide the case if Olson couldn't answer that question. Olson did his best to say what an odd, unprecedented question that was and that no court ever has thought about any sort of issue that way, but it would have been nice if one of the other justices could have stepped in and changed the weird subject. Roberts did try, but Scalia was like a dog with a really odd bone. Maybe this doesn't seem like such an odd sequence to you, but to an experienced appellate attorney, it was a very bizarre line of questioning.
In my reading, I don't see any questions posed by any of the justices that should make anyone nervous that their vote might be shockingly unexpected.
We did learn that Scalia doesn't seem familiar with the concept of the US Supreme Court dismissing a case as having been improvidently granted. This came up during the proponent's rebuttal when Sotomayor pondered if the Court had taken this issue too early in the history of same-sex marriage. Scalia's response was along the lines of, "We can't do that bizarre and unheard of thing you're suggesting!" Which struck me as odd because it's so not-unheard of, there's a term for it.
In the end, there was really only moment that excited me. Equal Protection cases are, ironically, not treated equally. There are three levels of review. For laws that separate people on the basis of a suspect classification, appellate courts apply strict scrutiny, the highest level of review around. That pretty much only applies to race and religion. Then there's this squishier intermediate scrutiny that sex classifications get. All others receive rational basis review. For some time now, there's been a fight going on about what kind of review sexual orientation classifications should get. Generally, we're still kind of stuck with rational basis review.
This topic came up in law school and I remember pondering to the class how on earth there was any question because issues relating to sexual orientation are almost always discrimination on the basis of sex. None more so than the marriage issue. I mean, what's the line anti-same-sex marriage people love to say? Gays can get married. There's no law against a gay man getting married. He just has to marry a woman. Sure, the effect of laws prohibiting same-sex marriage is that gay and lesbian persons can't marry the person they would choose. But the actual legal prohibition is about the sex of the two parties, not their sexual orientation. To me, this seems clear as day, but I remember everybody in my class looking at me like I was nuts. (Did some people think I was somehow making light of discrimination against gays? I was just, and still am, trying to make the best argument for why discriminating against gays is unconstitutional.)
I wrote before that I was finally vindicated a tad when the federal district court judge who heard the Prop 8 trial wrote a long, thorough opinion in which he said what I've been saying all along: bans on same-sex marriage are sex discrimination and therefore merit higher scrutiny than mere rational basis. (Of course, he went on to say Prop 8 doesn't survive rational basis scrutiny, either.)
So my very favorite moment from today's argument was this: Justice Kennedy asking, "Do you believe this can be treated as a gender-based classification? -- It's a difficult question that I've been trying to wrestle with."
Come on, Kennedy. Come to the light! It's not a difficult question, not at all. Judge Walker laid it all out for you in that opinion he wrote just for you. If you want to pick my brain on the idea, I'm available, Your Honor.
I have no idea how this case will come out. Maybe it'll be a 4-4-1 vote. Four for, four against, and Justice Kennedy ruling it should be dismissed as improvidently granted. A tie would mean the lower court ruling (declaring Prop 8 to be illegal) would rule. Maybe the decision will focus on the idea that the plaintiffs didn't have Article III standing to bring a federal case. I've got to say, I'm much more interested in tomorrow's DOMA case. That argument will be far more illuminating, I think.
We can never stop this insanity, can we? Certainly not if the rational "experts" perpetuate it.
I do not want to get sucked back into the Amanda Knox insanity. I really don't. It is supposed to be over. But somehow that case has seriously gotten under my skin because it is the nuttiest, scariest travesty I have ever seen. The cadre of internet trolls dedicated to spreading outright lies to convince people she's guilty. The way so many of these untruths have made their way into the cultural zeitgeist, so even respectable news outlets report them without realizing their falseness. How many news reports, for example, talk about the DNA on a knife without ever mentioning that the knife does not match the victim's wounds or the bloody imprint of a knife left on her bed? (Never mind that the "DNA" was actually starch, most likely from bread.) I cannot think of any case ever that has involved so much and such widespread false information. And such a committed group of people engaging in a coordinated effort to spread that false information. They spread the lies so far and so fast, it's impossible to fight it. So I wasn't going to blog about it again. I was going to be done.
Until I saw this story on CNN.com today. And now I have to give Alan Dershowitz a tongue-lashing. (A keyboard-lashing?) Because I expect more of an attorney. I expect more of any attorney, really, but especially someone who has established such a reputation, has defended criminal cases, holds himself out as an expert, and makes part of his living by being someone the public can turn to for reliable analysis of legal matters.
With his reckless comments on this case today, he has utterly failed in his duty to provide reasonable analysis based on a thorough review of the matter at hand. I have previously complained about these legal pundits who don't bother to educate themselves before expounding far and wide. It's irresponsible, to put it nicely. But it seems to be exactly what Dershowitz has done because there is no way any credible, rational criminal lawyer can research this case and find the evidence supporting conviction "pretty strong." For crying out loud, the appellate trial (the first appeal in Italy is a full, fact-finding trial complete with jury, not at all like our appeals) didn't just find her not guilty; they affirmatively found her innocent. That's a pretty good indication the evidence against her is something other than "pretty strong."
I also find it beyond frustrating when people with experience in criminal defense act like it's so shocking and such clear evidence of guilt that she was badgered in an overnight interrogation in a foreign country to give a rambling, incoherent statement that maybe she imagined being in the kitchen and could in that imagining see the suspect the police identified for her being there. The very morning after this interrogation when she got away from that police pressure and got some rest, she immediately wrote that none of that seemed real and she was sure she and Raffaele hadn't been there. To anyone with criminal defense experience, the garbled statement she gave (which, yes, unfortunately implicated an innocent man) is a textbook coerced statement. That imagining language, the hypothetical stuff, the "maybe you had a dream" stuff is the hallmark language found in false statements. (Read John Grisham's "The Innocent Man" or Robert Mayer's "The Dreams of Ada.") False confessions, including false implications of others, aren't uncommon. They are found in 25% of innocence cases, sadly. Because it's remarkably easy to get a sad, tired, confused, frightened person to say what you want them to say, regardless of that statement's truth or the consequences of making the statement. I really expect someone of Dershowitz' caliber to know and understand these things.
I'm truly ashamed of Dershowitz for these comments. I'm ashamed of every legal pundit who is refusing to call this absurd spade of Amanda Knox's persecution the absurd spade it is. There is no virtue in refusing to come to the only logical conclusion a dispassionate review of the evidence can lead to. But if you aren't willing to engage in a thorough, dispassionate review of the evidence, you don't have the right to spew your opinion as if it's worthy of credibility because of your expertise.
Until I saw this story on CNN.com today. And now I have to give Alan Dershowitz a tongue-lashing. (A keyboard-lashing?) Because I expect more of an attorney. I expect more of any attorney, really, but especially someone who has established such a reputation, has defended criminal cases, holds himself out as an expert, and makes part of his living by being someone the public can turn to for reliable analysis of legal matters.
With his reckless comments on this case today, he has utterly failed in his duty to provide reasonable analysis based on a thorough review of the matter at hand. I have previously complained about these legal pundits who don't bother to educate themselves before expounding far and wide. It's irresponsible, to put it nicely. But it seems to be exactly what Dershowitz has done because there is no way any credible, rational criminal lawyer can research this case and find the evidence supporting conviction "pretty strong." For crying out loud, the appellate trial (the first appeal in Italy is a full, fact-finding trial complete with jury, not at all like our appeals) didn't just find her not guilty; they affirmatively found her innocent. That's a pretty good indication the evidence against her is something other than "pretty strong."
I also find it beyond frustrating when people with experience in criminal defense act like it's so shocking and such clear evidence of guilt that she was badgered in an overnight interrogation in a foreign country to give a rambling, incoherent statement that maybe she imagined being in the kitchen and could in that imagining see the suspect the police identified for her being there. The very morning after this interrogation when she got away from that police pressure and got some rest, she immediately wrote that none of that seemed real and she was sure she and Raffaele hadn't been there. To anyone with criminal defense experience, the garbled statement she gave (which, yes, unfortunately implicated an innocent man) is a textbook coerced statement. That imagining language, the hypothetical stuff, the "maybe you had a dream" stuff is the hallmark language found in false statements. (Read John Grisham's "The Innocent Man" or Robert Mayer's "The Dreams of Ada.") False confessions, including false implications of others, aren't uncommon. They are found in 25% of innocence cases, sadly. Because it's remarkably easy to get a sad, tired, confused, frightened person to say what you want them to say, regardless of that statement's truth or the consequences of making the statement. I really expect someone of Dershowitz' caliber to know and understand these things.
I'm truly ashamed of Dershowitz for these comments. I'm ashamed of every legal pundit who is refusing to call this absurd spade of Amanda Knox's persecution the absurd spade it is. There is no virtue in refusing to come to the only logical conclusion a dispassionate review of the evidence can lead to. But if you aren't willing to engage in a thorough, dispassionate review of the evidence, you don't have the right to spew your opinion as if it's worthy of credibility because of your expertise.
My first thought about the Prop 8 argument
Remember a few weeks ago, when I argued that all of the Supreme Court's arguments against putting video cameras inside the courtroom are totally specious? Well, today's coverage of the Prop 8 argument utterly and totally proves my point. Since around 11 am CST, audio recordings of the hearing have been readily available online. The evening news coverage was exactly what I predicted it would be: those artist's renditions of the justices as the graphic while the justice's words scrolled on the screen as the audio of the words played. So how exactly would the presence of video cameras instead of just audio cameras and observers in the room change anything?
They wouldn't. There's just no good reason for not putting a camera in the courtroom.
The Amanda Knox farce continues. Sigh.
I have often said I could never be a trial attorney. They do things weird in trial court. They don't always read statutes or check case law before acting. Motions that should win get denied for no reason. It's kind of the wild west down there and I wouldn't make it long before I would hurl a statute book at someone. I need things to be right while the district court needs things to be fast.
But there is one place I would be even less successful: Italy. Holy cow, is that country's criminal justice system a mess. And so perfectly willing to trash a young woman's life for all times just because, well, because you don't like the look of her.
That's all the Amanda Knox case comes down to, you know. There's no evidence against her. Not one single shred. But in Italian courts, apparently that's just proof that you're guilty because obviously you cleaned up! (While magically managing to leave the actual killer's trail of bloody footprints untouched. Impressive and clear evidence that you are cold and calculating.)
And then in Italy, when there's no blood found, that's clear proof that there is blood! And a knife that absolutely couldn't be the murder weapon based on its size becomes the clear murder weapon! And the speck of biological material on that knife becomes not starch from bread but DNA of the victim! And in Italy, there's no such thing as an interrupted burglary where the burglar (whose DNA and bloody footprints are all over the crime scene, btw) kills a resident who comes home while he's still there. No, obviously that doesn't happen but drug-fueled sex orgies turned murder committed with total strangers do!
So when an appellate trial in Italy, which is a trial with a jury unlike our appeals, hears all the evidence (again, unlike our appeals where facts can't be litigated), comes back with a finding not just that Amanda Knox and her sad former boyfriend are not guilty but are officially innocent, it shouldn't surprise us at all that the higher appellate court in Italy can say totally innocent means they must be tried again! I couldn't work in a system that tolerated this kind of nonsense.
But I have to believe in the end, this will ultimately go away and sanity will prevail. I just have to because I might go insane otherwise. Here in the US, we eventually saw the error of our West Memphis Three ways, right? So surely some power in Italy will finally acknowledge the painfully clear truth that is there for anyone who can see: that Rudy Guede and Rudy Guede alone killed Meredith Kercher while Amanda Knox and Raffaele Sollecito had absolutely nothing to do with it. Honestly, anyone who continues to cling to the prosecution's fantastical theory of prosecution at this point is just delusional.
There are two tragedies here. First, obviously, that Meredith was murdered in such a horrible and brutal way. The second tragedy, though, is that her murder has been exploited and twisted and manipulated into this ridiculous, world-wide tabloid sensation that has destroyed two innocent people's lives while allowing the actual killer to get a greatly reduced sentence. And no matter what transpires in this latest legal twist, there will be a percentage of the world's population who continue to believe that Amanda (and therefore poor Raffaele) were involved in this crime, were there, know something at least, or flat-out committed it. They will have to carry that for the rest of their lives thanks to one insane prosecutor and a country that loves a crazy, conspiracy theory.
But there is one place I would be even less successful: Italy. Holy cow, is that country's criminal justice system a mess. And so perfectly willing to trash a young woman's life for all times just because, well, because you don't like the look of her.
That's all the Amanda Knox case comes down to, you know. There's no evidence against her. Not one single shred. But in Italian courts, apparently that's just proof that you're guilty because obviously you cleaned up! (While magically managing to leave the actual killer's trail of bloody footprints untouched. Impressive and clear evidence that you are cold and calculating.)
And then in Italy, when there's no blood found, that's clear proof that there is blood! And a knife that absolutely couldn't be the murder weapon based on its size becomes the clear murder weapon! And the speck of biological material on that knife becomes not starch from bread but DNA of the victim! And in Italy, there's no such thing as an interrupted burglary where the burglar (whose DNA and bloody footprints are all over the crime scene, btw) kills a resident who comes home while he's still there. No, obviously that doesn't happen but drug-fueled sex orgies turned murder committed with total strangers do!
So when an appellate trial in Italy, which is a trial with a jury unlike our appeals, hears all the evidence (again, unlike our appeals where facts can't be litigated), comes back with a finding not just that Amanda Knox and her sad former boyfriend are not guilty but are officially innocent, it shouldn't surprise us at all that the higher appellate court in Italy can say totally innocent means they must be tried again! I couldn't work in a system that tolerated this kind of nonsense.
But I have to believe in the end, this will ultimately go away and sanity will prevail. I just have to because I might go insane otherwise. Here in the US, we eventually saw the error of our West Memphis Three ways, right? So surely some power in Italy will finally acknowledge the painfully clear truth that is there for anyone who can see: that Rudy Guede and Rudy Guede alone killed Meredith Kercher while Amanda Knox and Raffaele Sollecito had absolutely nothing to do with it. Honestly, anyone who continues to cling to the prosecution's fantastical theory of prosecution at this point is just delusional.
There are two tragedies here. First, obviously, that Meredith was murdered in such a horrible and brutal way. The second tragedy, though, is that her murder has been exploited and twisted and manipulated into this ridiculous, world-wide tabloid sensation that has destroyed two innocent people's lives while allowing the actual killer to get a greatly reduced sentence. And no matter what transpires in this latest legal twist, there will be a percentage of the world's population who continue to believe that Amanda (and therefore poor Raffaele) were involved in this crime, were there, know something at least, or flat-out committed it. They will have to carry that for the rest of their lives thanks to one insane prosecutor and a country that loves a crazy, conspiracy theory.
Sunday, March 24, 2013
You say justified warrantless search, I say rape
This story about made my day. (The Jayhawks moving on to the Sweet Sixteen actually made my day, but this was close.)
I've blogged about this incident a couple of times already. Two women in Texas were subjected to an invasive cavity search on the side of the highway, in full view of passing cars and a trooper car dashcam. The trooper actually inserted her fingers into the vaginas of these two women (who had done nothing wrong) out of suspicion that they might have drugs hidden (even though there was no sign of drugs or paraphernalia anywhere in the car.) I even previously pointed out that if I had done what the officer in question had done, it would have been called rape under my state's law.
Well, in Texas they call it sexual assault, not rape, and I am fine with that because the officer who conducted those despicable searches has been charged with it!
(The male trooper who called for the female officer was charged with theft for allegedly stealing one of the women's prescription painkillers, but not for aiding and abetting the sexual assault.)
I've blogged about this incident a couple of times already. Two women in Texas were subjected to an invasive cavity search on the side of the highway, in full view of passing cars and a trooper car dashcam. The trooper actually inserted her fingers into the vaginas of these two women (who had done nothing wrong) out of suspicion that they might have drugs hidden (even though there was no sign of drugs or paraphernalia anywhere in the car.) I even previously pointed out that if I had done what the officer in question had done, it would have been called rape under my state's law.
Well, in Texas they call it sexual assault, not rape, and I am fine with that because the officer who conducted those despicable searches has been charged with it!
(The male trooper who called for the female officer was charged with theft for allegedly stealing one of the women's prescription painkillers, but not for aiding and abetting the sexual assault.)
I'm sure this is a terrifying experience for the trooper who somehow thought she was just doing her job when she digitally penetrated two innocent women on the side of the road. I'm sure it's been financially devastating to lose her job. And now to face such a serious charge must be rough. Perhaps, too, there's some frustration on her part, feeling like she's being made the scapegoat for what was standard operating procedure in her office. Were I her, it would gall me that the male trooper involved wasn't charged with anything related to the actual sexual assault.
But so what. She molested these women. That's exactly how they felt because that's exactly what happened to them. She had absolutely no legal justification for her actions, no matter that office policy said otherwise. To the extent that other troopers also engaged in these awful cavity searches on the side of the road, well the answer isn't that she shouldn't be charged because none of them ever have been. The answer is that they should all be charged. Maybe it's just that she was the first trooper dumb enough to conduct such a search without first making sure the dash cam was off.
I'm glad to see this travesty being taken so seriously. Digital penetration of the female sex organ without consent is a crime. In Texas, as in Kansas and many, many other states, digital penetration is treated just the same as penile penetration. It's rape. (Texas, like some states, avoids the word rape, calling it sexual assault instead, but it all means the same thing.) To meet the statutory elements, the penetration doesn't have to have been for a sexual purpose, either, so the trooper doesn't have that as a defense. I'm sure her defense will turn on the question of whether office policy and procedure that calls for cavity searches on the roadside can protect the individual officers who actually carry out the policy. That defense didn't work in Nuremberg and it shouldn't work here. A law enforcement office can't have a policy of rape and thus shield the individual officers who actually commit the rapes.
By the legal definition, this was rape. When a case this obvious and documented comes to light, we need to take it seriously and treat it like the crime it is. We need to make sure every law enforcement officer in the nation knows this abusive behavior won't be tolerated. If we don't, there might well be other victims.
Subscribe to:
Posts (Atom)
