Archive for the ‘Crime’ Category.

That'll Teach 'Em

More evidence the British police forces seem to be losing their minds at least as fast as American police:

To teach motorists who leave their cars unlocked a lesson, police in Richmond upon Thames, a borough of London, have begun taking their stuff. The victims beneficiaries of these thefts educational efforts return to their cars and find that expensive items such as cameras, laptops, and leather jackets have been replaced by notes instructing them to retrieve their valuables at the police station. Not to worry, though: "If items are needed urgently," the London Times reports, "police will return the goods immediately." Which suggests that if you can't show an urgent need for, say, your computer, they'll take their own sweet time. The justification offered by Superintendent Jim Davis: "People would be far more upset if their property really was stolen."

Woe be to people who actually trust that the police are doing their job reducing crime and fail to secure all of their belongings from petty theft.   One hopes that the police of Richmond on Thames never start to percieve a problem with rapes in their fair city.

Best Argument Against the Death Penalty

I agree with TJIC:

If we can't trust the government to enforce the speed limit or issue liquor licenses fairly, how can we trust it to kill citizens fairly ?

It strikes me as odd that law-and-order conservatives can distrust every single department of the government except the guys who carry guns.  The post office and the police are run by the same organization.

More extensive thoughts on the death penalty here and here.

Junk Science in the Courtroom

I used to write a lot about junk science in civil cases.  I have never really liked the idea of limitations on liability awards as a solution for nutty civil rulings -- after all, how can Congress know in advance exactly what real damages will arise, and why should my ability to recover real damages be capped?

I always have felt that such solutions were beside the point, that what tort law needed was:

  • Better immunization against junk science
  • A rollback of the flawed notion that deep pockets are automatically liable, regardless of their actions, combined with some acknowledgment of individual responsibility
  • Protection of dependents from nuisance suits and mass torts, both of which derive their power from the cost of defense rather than the facts of the case, forcing the innocent to settle just to avoid these defense costs.

I always had naively thought that the junk science issues were mainly limited to civil courts, and that criminal courts, with their much stronger protections against false convictions, did not really have these problems.

The more I read Radley Balko, though, the more depressed I get about innocent people sitting in jail as the result of really flawed evidence.  The most recent example:

Last weekend, we looked at the case of Bill Dillon, the Brevard County resident imprisoned for 27 years before DNA tests set him free...

At least two other men suffered the same fate "” and another shared link: a dog.

Not just any dog. A wonder dog helped convict all three men: a German shepherd named Harass II, who wowed juries with his amazing ability to place suspects at the scenes of crimes.

Harass could supposedly do things no other dog could: tracking scents months later and even across water, according to his handler, John Preston.

Another Fallout From the War on Drugs: Asset Seizures

One of the least-discussed but quite important fallouts from the war on drugs has been the incredible power we seem to have handed police authorities to seize assets.  While theoretically, it should be impossible to be fined or punished without being convicted, in fact it is perfectly possible for police to shut down businesses and impose enormous fines without trial through this confiscation authority.   Here is just one recent example that came up this morning:

The FBI on Tuesday defended its raids on at least two data centers in Texas, in which agents carted out equipment and disrupted service to hundreds of businesses.

The raids were part of an investigation prompted by complaints from AT&T and Verizon about unpaid bills allegedly owed by some data center customers, according to court records....

According to the owner of one co-location facility, Crydon Technology, which was raided on March 12, FBI agents seized about 220 servers belonging to him and his customers, as well as routers, switches, cabinets for storing servers and even power strips. Authorities also raided his home, where they seized eight iPods, some belonging to his three children, five XBoxes, a PlayStation3 system and a Wii gaming console, among other equipment. Agents also seized about $200,000 from the owner's business accounts, $1,000 from his teenage daughter's account and more than $10,000 in a personal bank account belonging to the elderly mother of his former comptroller.

FBI agents displayed their usual level of competance when it comes to technology-related matters:

Faulkner says the FBI appears to have assumed that all the servers located at Crydon's address belonged to him, and didn't seem to understand the concept of co-location.

This is over a private billing dispute?  The FBI claims its a much bigger matter - since there was fraud involved as one of the target companies faked some credit references.  Oh, OK, then go right ahead and seize all the family's iPods.

Really, Really Awful

Radley Balko has been on Mississippi state medical examiner Steven Hayne's case for years.  He has gathered a fair bit of evidence that Hayne is not only an unqualified hack, but that he has a history of saying anything and everything, no matter how bizarre, that a prosecutor wants to hear in court to get a conviction.

The case of Jimmie Duncan is as bad as any.  In this case, Hayne and his "dental expert" Michael West are seen on video mutilating an unmarked corpse with castings of Duncan's teeth in order to manufacture evidence for a conviction.  Balko has the story, lots of links, and the video here.

The case would be troubling even if Hayne was just a one-off problem.  But the absolute unwillingness of the state to investigate Haynes and many of the convictions he helped obtain, despite evidence of egregious incompetence and outright fraud, demonstrate that few in government have any interest in policing over-zealous prosecution.  The experience of the few prosecutors like Craig Watkins who are willing to re-open convicted cases when the evidence changes (or evidence of past railroading emerges) lead me to think that lots of innocent men are still rotting in jails.

All this is the major reason why I gave up on supporting the death penalty years ago -- simply put, I don't trust the state to get it right.  Back 25 years ago when I called myself a "conservative,"  I tended, like others on the right, to make exceptions for the untrustworthiness and incompetence of the state when it came to a) the military and b) the police and prosecution.  No longer.  There just is no rational evidence that the incentive problems and abuse of power issues that plague other branches of government don't affect these as well.  Which is not to say there are not honorable people in these institutions  -- its that I would rather have a system in place that didn't assume their were honorable people in these positions to functions correctly.

Postscript: People sometimes argue with me on the military exception above.  They say "look at the US military.   It seems so powerful and competant in battle.  It pulled off Omaha beach.  And Desert Storm."

Well, yeah, but the thing is, it is only competing with other government-monopoly operations.  Its like saying the US post office is better than the French post office, or that Amtrak kicks butt on the Mexican National Railway.

As to D-Day, well, there are few opportunities in private life to demonstrate the heroism under fire that was common on Omaha Beech, but logistically, was it anything special compared to what is routine today?  I won't let myself get caught comparing apples and oranges, but I have seen the Air Force's logistics system and it is a sad joke compared to Wal-Marts restocking of 100,000 sku's every day in 10,000+ stores around the world.

Ecoterrorism Vindicated in England

Apparently 6 vandals who cause $60,000 damage to a power plant in England were acquitted solely on the argument that they were helping stop global warming -- in other words, they admitted their vandalism, but said it was in a higher cause.

It's been a pretty unusual ten days
but today has been truly extraordinary. At 3.20pm, the jury came back
into court and announced a majority verdict of not guilty! All six defendants - Kevin, Emily, Tim, Will, Ben and Huw - were acquitted of criminal damage.

To recap on how important this verdict is: the defendants
campaigners were accused of causing £30,000 of criminal damage to
Kingsnorth smokestack from painting. The defence was that they had 'lawful excuse' - because they were acting to protect property around the world "in immediate need of protection" from the impacts of climate change, caused in part by burning coal.

So the testimony centered not on whether they actually vandalized the power plant - they never denied it - but on whether the criminals were correct to fear global warming from power plants.  I don't know much about British law, but this seems to be a terrible precedent.  Or maybe not - does this mean that I can go and legally vandalize every Congressman's house for wasting my money?

But its for the Kids

What is adult prohibition of marijuana achieving, if teenage use rates of marijuana are nearly as high as those for cigarettes, where we don't have adult prohibition.  Prohibitionists argue that adult marijuana must be banned because its legal availability to adults would make it easier for teens to obtain, but a direct comparison of marijuana and tobacco smoking demonstrates little utility from this approach:

The cigarette use figure represents a sharp drop from
the 2005 survey, when it was 23 percent. Marijuana use, at 20.2 percent
in 2005, showed a much smaller decline....

Another report
released this week, the Fiscal Year 2007 Annual Synar Report on tobacco
sales to youth, showed the 10th straight annual decline in the rate of
illegal tobacco sales to minors. In 1997, 40.1 percent of retailers
violated laws against tobacco sales to minors. In 2007 the rate had
dropped to just 10.5 percent, the lowest ever.

"Efforts to curb
cigarette sales to teens have been wildly successful, and it's past
time we applied those lessons to marijuana," said Aaron Houston,
director of government relations for the Marijuana Policy Project in
Washington, D.C. "Tobacco retailers can be fined or put out of business
if they sell to kids, but prohibition guarantees that we have zero
control over marijuana dealers. Foolish policies have guaranteed that
the marijuana industry is completely unregulated."

Jacob Sullum provides additional analysis in the rest of the post.

I Think I Can Agree With This

I observed a while back that "Eliot Spitzer has been brought down for a crime most libertarians don't
think should be a crime, by federal prosecutors who should not be
involved even if it were a crime, and using techniques, such as
enlisting banks as government watchdogs of private behavior, that
stretch the Fourth Amendment almost out of recognizable shape."

Megan McArdle makes a pretty good point about the last part:

I'm not distressed to hear that the Feds were spying on Eliot Spitzer.
No, not because I don't like the man, but because I think maybe we should
spy on our politicians, all the time. No probable cause, you say? I
fling back at you Mark Twain's observation that America only has one
distinct criminal class: Congress. . . . I think it's entirely
appropriate that the anti-corruption police watch politicians like
hawks. They've chosen public office; that conveys a lot of
responsibility to the public, including assuring them that your votes
aren't being bought outright. I also think that politicians, when
caught in a crime, should automatically get the maximum penalty; if
they think the law is such a good idea, they ought to suffer heartily
when they disregard it.

We Don't Need To Turn Over No Stinking Evidence

A few days ago, I pointed to a Tom Kirkendall post where he reported that a large volume of evidence, including interview notes with star witness and Enron CFO Andy Fastow, was finally turned over to the Skilling defense team.  This is required by law to occur before the, you know, trial itself but in fact comes months and years after the trial.  Apparently, there are a lot of bombshells in the notes, including this one as described by Skilling's attorneys in a brief linked by Kirkendall: (citations omitted)

Task Force prosecutors called the "Global Galactic"  document "three pages of lies" and the "most incriminating document" in  Skilling's entire case. At trial, Fastow testified Skilling  knew about Global Galactic because Fastow "confirmed" it with him during a  spring 2001 meeting. Skilling denied knowing anything about Global Galactic.  To bolster Fastow's testimony and impeach Skilling's, the Task Force introduced a set of handwritten "talking points" that Fastow said he prepared in anticipation of his meeting with Skilling. At trial, Fastow swore he "went over" the talking points with Skilling, including the crucial point "Confirmation of Global Galactic list." Id. In closing, the Task Force relied heavily on this document to corroborate Fastow's testimony that he discussed Global Galactic with Skilling.

The raw notes of Fastow's interviews directly impeach Fastow's testimony and the Task Force's closing arguments. When shown and asked about the talking-points document in his pre-trial interview, Fastow told the Task Force he "doesn't think [he] discussed list w/ JS."

This obviously exculpatory statement was not included in the Task Force's "composite" Fastow 302s given to Skilling. Nor was it included in the "Fastow Binders" the Task Force assembled for the district court's in camera review of the raw notes. It is not possible that this omission was inadvertent. Fastow's statement is one of the most important pieces of evidence provided during all his countless hours of interviews. Moreover, in preparing both the composite 302s and Fastow binders, the Task Force extracted and included other"”relatively inconsequential"”statements from the same interview date and even the same page of notes. The Task Force's exclusion of this critical piece of evidence for over three years is inexcusable and, on its own, warrants a complete reversal of Skilling's convictions and other substantial relief.

Disclosure: I actually worked with Jeff Skilling briefly at McKinsey & Co.  From that experience, I have always thought it unlikely that this incredibly detail-oriented guy did not know about a number of these key Enron partnerships.  However, that presumption on my part in no way reduces my desire to see him get a fair trial, and I am becoming convinced that he did not.

Thoughts on Prosecutorial Abuse

With Eliot Spitzer going down for what shouldn't be a crime (paying for sex) rather than what should be (abuse of power), now is as good a time as ever to focus on prosecutorial abuse.  As in the case of Spitzer, the media seems to have little desire to investigate overly-aggressive prosecution tactics.  In fact, in most cities, the local media cheer-leads abusive law enforcement practices.  It makes heroes of these abusive officials, whether their abuses be against the wealthy (in the case of Spitzer) or the powerless (as is the case of our own Joe Arpaio here in Phoenix).

Tom Kirkendall continues to be on the case of the Enron prosecution team for their abuses, which have been ignored in the media during the general victory dance of putting Jeff Skilling in jail and running Arthur Anderson out of business.  But, guilty or innocent, Skilling increasingly appears to have solid grounds for a new trial.  In particular, the Enron prosecution team seems to have bent over backwards to deny the Skilling team exculpatory evidence.  One such tactic was to file charges against every possible Skilling witness, putting pressure on them not to testify for Skilling.  Another tactic was more traditional - simply refuse to turn over critical documents and destroy those that were the most problematic:

The controversy regarding what Fastow told
prosecutors and FBI agents who were investigating Enron became a big
issue in the Lay-Skilling prosecution when the prosecution took the
unusual step of providing the Lay-Skilling defense team a "composite
summary" of the Form 302 ("302's") interview reports that federal
agents prepared in connection with their interviews of Fastow. Those
composites claimed that the Fastow interviews provided no exculpatory
information for the Lay-Skilling defense, even though Fastow's later
testimony at trial indicated all sorts of inconsistencies

However,
I have spoken with several former federal prosecutors about this issue
and all believe that the government has a big problem in the Skilling
case on the way in which the information from the Fastow interviews was
provided to the Lay-Skilling defense team. None of these former
prosecutors ever prepared a composite 302 in one of their cases or ever
used such a composite in one of their cases. The process of taking all
the Fastow interview notes or draft 302's and creating a composite is
offensive in that it allowed the prosecution to mask inconsistencies
and changing stories that Fastow told investigators as he negotiated a
better plea deal from the prosecutors. 

Similarly,
the Enron Task Force's apparent destruction of all drafts of the
individual 302s of the Fastow interviews in connection with preparing
the final composite is equally troubling. Traditionally, federal agents
maintain their rough notes and destroy draft 302s. However, in regard
to the Fastow interviews, my sense is that the draft 302s were not
drafts in the traditional sense. They were probably finished 302's that
were deemed "drafts" when the Enron Task Force decided to prepare a
composite summary of the 302's.

Note that showing how a person's story has changed over time is a key prosecution tactic, but one that is being illegally denied to Skilling.  Apparently Skilling's team has now seen the actual interview notes, and believe they have found "a sledgehammer that destroys Fastow's testimony" against Skilling.  Stay tuned, a new trial may be on the horizon.

Cargo Cult Drug Enforcement

This is a great example of what I call cargo cult thinking:  If drugs are sold in small baggies, then banning these baggies will reduce drug sales:

Tiny plastic bags used to sell small quantities of heroin, crack
cocaine, marijuana and other drugs would be banned in Chicago, under a
crackdown advanced Tuesday by a City Council committee. Ald. Robert
Fioretti (2nd) persuaded the Health Committee to ban possession of
"self-sealing plastic bags under two inches in either height or width,"
after picking up 15 of the bags on a recent Sunday afternoon stroll
through a West Side park.

Great idea.  But it seems that Chicago may not be after drug dealers after all:

Lt. Kevin Navarro, commanding officer of the Chicago Police
Department's Narcotics and Gang Unit, said the ordinance will be an
"important tool" to go after grocery stores, health food stores and
other businesses.

Huh?  We need to "go after" health food stores?

This is the weirdest bit of problem-shifting I have seen since Oakland started assigning legal liability for teenage littering to the McDonalds corporation

Incarceration

Like a lot of folks, I am staggered by the fact that more than 1 in 100 Americans are incarcerated, including approx. 1 in 9 young black men.  I don't have the evidence at my fingertips, but my gut instinct, like many libertarians, is to blame the war on drugs for much of the prison population.  I would have liked to have seen more detail in the PEW Report on how the population breaks down -- ie for what crimes and sentence lengths -- but no such information is available. 

I will say that the PEW report spends way too much time on the utilitarian argument about the costs in public dollars to actually incarcerate these folks.  My sense is that Americans almost never complain about the budgetary costs of incarceration.  They tend to be more than happy, as a group, to pay whatever it takes to keep felons locked away for long periods of time.   I think a much stronger argument is the individual rights complaint that so many people are locked up for what is basically consensual activity.