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Wednesday, January 26, 2005
Eminent domain drugs
A few years ago I wondered if anyone thought of applying a concept like eminent domain to drugs. I was listening
to a story about AIDS drugs in Africa and how some governments were dispensing knockoffs of patented AIDS drugs because they
could not afford the authorized version.
Wed, January 26, 2005 | link
Tuesday, January 25, 2005
Smoke'em while you've got 'em
Tue, January 25, 2005 | link
The rock that broke the camel's back
In 1692 during the Salem Witch trials the Sheriff took Giles Corey, an 80-year-old farmer, from the jail, put a board on his chest and piled rocks on the board trying to get him to confess
to being a witch. The only thing Corey said during the ordeal was "more weight" so the authorities continued to pile
more rocks on him until he was crushed to death.
The Fourth Amendment is the Giles Corey of the Constitution. During each term the Supreme Court bends over the
Fourth Amendment and if there appears to be the slightest sign of breath, it piles another rock on. The latest rock
is Illinois v. Caballes. The Supreme Court said that it is OK for police to use a dog to sniff a vehicle, as long as there is some legal reason
to stop the vehicle. The reasoning is that the dog sniff only tells the police one thing: whether narcotics are present
in the area. Since a person cannot have a legitimate expectation of privacy in possessing contraband, no invasion has
occurred.
This decision means the government can do all of the following:
- A police officer has stopped a car for speeding, while the officer is writing up the citation, another officer runs a
dog around the outside of the car to sniff it. If the dog alerts to the car, the officers have probable cause to search
and can do so without a warrant.
- Officers have set up a drunk-driving or license checkpoint where every car is stopped. While one officer checks
ID's another can have a dog sniff every car.
- An officer has an anonymous tip that there are drugs in a residence. The officer can bring a dog for a "knock and
talk" encounter. If the dog alerts to the house the officer can secure the residence while other officers go get a warrant.
- Dogs can be used to randomly sniff luggage checked at airports.
- Dogs can be used to sniff cars waiting at stoplights.
The decision is not surprising since the court has been friendly to dog sniffs in the past. Since I generally resent
government intrusion on citizens I am wary of the idea that there is no legitimate expectation of privacy in illegal activities.
It sounds too much like, "if you have nothing to hide there is no reason object to a search."
On the Volokh Conspiracy, Owen Kerr asks:
Can the police send a computer virus to your computer that
searches your computer for obscene images, or images of child pornography, and then reports back to the police whether such
images are on your computer — all without probable cause, or even any suspicion at all? The traditional answer would have
been no: the police cannot enter your private property to search even for non-private stuff. But thanks to the increasing
focus on the nature of the information rather than how the information is obtained, it's no longer so clear.
Unleash the hounds (Arbitrary & Capricious), Hoakum! (Grits for Breakfast)
Update:
A different view of my DWI checkpoint hypo: If officers walked a drug dog around all vehicles
initially stopped at a DWI or license checkpoint (in contrast to walking a drug dog around a car after the driver had been
lawfully detained at the checkpoint for further investigation for a valid reason), then a court would likely rule that the
primary purpose of the checkpoint was drug detection, not DWI or license checks. In City of Indianapolis v. Edmund,
the court ruled that traffic stops with the primary purpose of drug detection were unconstitutional. (This take is from
Robert Farb, a professor at the N.C. Institute of Government)
It is possible or maybe likely that a court would rule that use of dogs at a DWI checkpoint shifted
the primary purpose of the stop from drunk driving to drug interdiction. How does a court judge what the primary purpose
of a checkpoint is?
Tue, January 25, 2005 | link
Friday, January 21, 2005
A matter of honne
The Japanese term "honne" means "a belief you hold inwardly to be true though you would never admit it publicly," according
to " Translating the Untranslateable," a book discussed on NPR the other day.
We need an English word for that. Just ask Lawrence Summers, president of Harvard. He suggested that innate differences could explain why women are scarce at the top levels of
math and science. He has had to apologize and distance himself from that remark.
It may (or may not) be true that women have some predisposition against science and math. But in fields that
are supposed to reward and advance individual merit, it is pointless to talk about predispositions of certain groups.
Let's say I had an emergency where I needed a physicist. Kind of like when George Costanza was called on to save the
whale when he was pretending to be a marine biologist. If I ran from man to man asking about the physics credentials
I would overlook Marie Curie.
Experience tells me that men are far more likely to commit crimes than women, but it would not make sense in any investigation
to rule out females from the beginning. For faculty hiring, college admissions, military service, criminal justice and
so on there are already systems in place that supposedly judge individual merit, or lack thereof. Why not spend our
efforts on making the merit system better judge the individual rather than arguing about what groups tend to be better equipped
to handle.
Fri, January 21, 2005 | link
Thursday, January 20, 2005
Dave Barry must be regretting his retirement
I could not resist after seeing this on CNN this morning. The full story.
Thu, January 20, 2005 | link
Wednesday, January 19, 2005
Film at eleven
I had a client interviewed on TV once, so I was intrigued by a CrimLaw take on the subject.
My client had confessed during a TV interview at the jail. The interview happened right before I was appointed
to represent him so he did not get my standard advice "do not talk to anyone about your case."
There was not much I could do about the interview and it was not the only damining evidence. But given my experience
with jails I wondered how the interviews got done so quickly. Jails are bristling with rules and regulations.
Visitors have to be on the approved list, have ID and show up during regular visiting hours. No contact visits are allowed
and I can't imagine being able to bring in a TV camera. Family members cannot visit someone who has just been arrested.
Yet for some reason a TV crew got through all the red tape in seconds.
It is not the jailer's responsibility keep an inmate from talking to the press, but I thought it was suspicious
how accomodating they were that time.
Wed, January 19, 2005 | link
You can fool many of the people all of the time
The roll of corporate wrongdoing tolls on: Enron, WorldCom, Krispy Kreme (a local company for me). However one
CEO has successfully bamboozled the public for nearly 40 years. I speak of course of Bil Keane, CEO of Family Circus
Inc. Keane has concealed from readers and investors the fact that this comic strip contains no actual humor.
A routine audit of Family Circus books showed shoddy accounting practices. For example:
Eternally 7-year-old Billy was the accountant. Bil Keane, you're going down.
Wed, January 19, 2005 | link
Tuesday, January 18, 2005
Guns, what are they good for?
Gun control and right to carry laws have been debated forever, but there is still no science on whether either affects
gun deaths or crime, so says the National Academy of Sciences. An exchange on Volokh got me to read a summary of the report and a dissent by James Q. Wilson. Wilson says that the committee gave too little weight to a study showing that right to carry laws
tend to reduce the murder rate.
Whether you oppose or favor gun control, I think that government attempts to control guns have had little effect on access
to guns. It is right up there with controlling access to drugs. Gun buybacks, bans and permits do very little
to change the fact that just about anyone who wants to carry around a gun can do it and will get away with it for a long time.
My personal experience tells me that there are so many guns in circulation that if states and the federal government banned
the manufacture and sale of firearms here, that it would be quite a few years before the supply of guns shrank very much.
And that assumes that the ban effectively stopped manufacture and import, not wise bet based on the history of the drug war.
It will be impossible to measure gun control unless the goverments can figure out some way to control guns, even if it were
politically possible.
The connection between right-to-carry laws and lower rates of murder is intriguing. I can't understand why one
would have a measurable effect on the other. Lots of violent people carry guns and they generally seem to assume
that others they deal with have them to regardless of what the law is. I think that right-to-carry laws probably make
a measurable difference in the number of generally law-abiding people who choose to carry a gun. However I think the
odds of any of them being able to use the weapon to defend themselves or stop a crime is very small, because few are likely
to be the target of a crime. For the right-to-carry laws to actually cause a drop in the murder rate requires instilling
a belief in potential killers that they should refrain from trying to kill others because their targets are likely to
be armed. My one-on-one contact with criminals makes this hard for me to buy into. Most of my clients who have
regular contact with the criminal courts have extremely short "event horizons." Mostly they think about what is going
on right now, rarely more than a few hours into the future. When I talk about things weeks, months or years in the future,
their eyes glaze over. The idea that this group would adjust its behavior based on right-to-carry laws makes no sense
to me. I'd guess that many have no idea that there even are right-to-carry laws.
If there is a correlation between right-to-carry laws (34 states have them) and the murder rate and that the right-to-carry
laws cause a drop, I'd love to see a sensible explanation of why. I was one of the ones who thought that permitting
most any adult with a clean record to get a concealed carry permit was a bad idea. I figured ready recourse to a handgun
meant that more routine confrontations would end in gunfire. It never happened.
Tue, January 18, 2005 | link
Thursday, January 13, 2005
Booker'em Dan-o
The Supreme Court's Booker opinion is out. It reached the inevitable conclusion based on the court's recent precedents that the Federal Sentencing Guidelines
violate the constitution. A "fix" pasted together by the dissenters (plus Justice Ginsburg) is actually the more interesting
part. A few thoughts:
- Federal Sentencing Guidelines Lite. "All the complexity, confusion and uncertainty of the Federal
Sentencing Guidelines but without the annoying Sixth Amendment problems." They're fizzy and yellow, but likely
to make Congress gag and leave a bitter aftertaste for defendants who still face longer sentences. By making the
guidelines advisory rather than mandatory, the court has eliminated a provision that was central to what Congress tried to
accomplish, reducing or eliminating disparity. So for judges who follow the guidelines defendants will still face increased
sentences for facts not found by a jury or proved beyond a reasonable doubt. This was the principal problem the 5-justice
majority had with the guidelines.

- The Crime Pyramid. The guidelines are now merely "advisory." Kinda like the food pyramid.
This should enjoy the same success as the food pyramid has in eliminating obesity. Maybe judges could end every sentencing
with "and would you like some supervised release or probation with that?"
- It's the Real Offense. The Sixth Amendment problem with the Guidelines is in the "real offense" versus
the "charged offense." Early on the Sentencing Commission picked the real offense approach and has been wedded to it
ever since. The real offense approach is this: no matter what the prosecution charged you with and what the jury
convicted you of, a probation officer will find what it is more likely than not that you "really" did and that is
what we will sentence you for. The Sentencing Commission has extremely bright people, but the system it came up with
had serious problems and from the very beginning was far too complex. Imagine that we had sent the Founding Fathers
to Philadelphia and instead of the Constitution, they came out with the Internal Revenue Code. That pretty much sums
up the work of the Sentencing Commission.
- Judicial activism?. The anti-guideline opinions have so far been bulletproof when it comes to claims
of judicial activism, because icons of the right Justices Scalia and Thomas have been the bought wholeheartedly into the Sixth
Amendment interpretation, along with Justice Stevens. In some ways the guideline fixers, led by Justice Breyer are the
real activists because they are desperately trying to find a way to preserve the status quo, even though a majority has clearly
ruled that the status quo is unconstitutional.
Thu, January 13, 2005 | link
Monday, January 10, 2005
Quote-unquote
So the officer is testifying that the defendant was cuffed but not in custody. This is from a transcript for an
appeal I am working on. The judge did not buy the not-in-custody spin.
Mon, January 10, 2005 | link
Wednesday, January 5, 2005
What I’m working on
Appeal in a criminal case: Client plead guilty to taking
timber from land and then not paying owners. He got a substantial period of time
in prison because the judge gave him back-to-back sentences on multiple charges. About
4-6 months after sentencing, the DA’s office has him brought back from prison to tack on another $12,000 in restitution. The restitution evidence was not offered at sentencing because someone in the DA’s
office misfiled it. There was no written notice to the defendant before the hearing,
the judge re-appointed his trial counsel on the day of the hearing. No witnesses
testified at the “hearing,” the DA just presented paperwork the victims had filled out saying what they had lost. Judge allows the added restitution.
I’m arguing that this violates the principle that criminal judgments have finality.
It is hard for me to image a defense attorney coming in to court, making an oral motion to amend a judgment based on
misplaced evidence and getting an amended judgment. Yet the state does this and
no one bats an eye.
Civil case: Customer goes to a bar with two friends. There
is an agreement that one of the friends will drive home. Customer drinks beer
from 10 pm to 2 am and leaves with his friends. For some reason the customer
refuses to let either of his friends drive. Each of the friends had little or
nothing to drink. Customer causes tractor trailer to overturn killing truck driver. I am representing the bar, which was sued for serving an intoxicated person knowing
that he was going to drive. Customer is facing murder charges connected to accident.
Post-conviction challenge: Defendant was convicted of sex offense involving mentally disabled adult. The victim appeared at the trial, but the state got the court to rule that she was
“unavailable” to testify because she was unable to give intelligible answers to rudimentary questions, such as “what did you
have for breakfast this morning?” Judge declares her unavailable and allows under
residual hearsay exception detailed statements to police, nurses and others. The
details of the accounts varied widely and included things that could not possibly have happened. Jury convicts. Affirmed on appeal. The trial happened before Crawford v. Washington was decided. I am arguing that use of the out-of-court statements violated the
defendant’s right to confront the witness against him. It will take some judicial
gymnastics to rule that the testimony was non-testimonial.
Wed, January 5, 2005 | link
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