“Whoever, possessing a firearm as defined in section 921 of this title, takes a motor vehicle . . . from the person or presence of another by force and violence or by [...]]]> Thanks to Dan et al. for the opportunity to guest-blog this month.  For my first guest post, I want to highlight a little-noticed tool of statutory construction that has reared its head in a handful of recent Supreme Court decisions: inferences based on Congress’s use of the passive voice in criminal statutes. I first noticed Supreme Court reliance on the passive voice to construe a criminal statute in Justice Kennedy’s dissenting opinion in Jones v. United States (1999).  Jones involved construction of the federal carjacking statute, 18 U.S.C. §2119, which then read as follows:

“Whoever, possessing a firearm as defined in section 921 of this title, takes a motor vehicle . . . from the person or presence of another by force and violence or by intimidation, or attempts to do so, shall—

(1) be fined under this title or imprisoned not more than 15 years, or both,

(2) if serious bodily injury (as defined in section 1365 of this title) results, be fined under this title or imprisoned not more than 25 years, or both, and

(3) if death results, be fined under this title or imprisoned for any number of years up to life, or both.”

Defendant Jones had participated in a carjacking with two other men.  While Jones and one of the other men held up the victims, a third man had stuck his gun in one of the victims’ ears and later struck that victim on the head.   The issue in the case was whether clauses (1), (2) and (3) of §2119 are sentencing provisions, specifying punishment/sentencing possibilities for the offense set forth in the first paragraph, or whether they are three different offenses (one being a carjacking offense, two being carjacking + serious bodily injury, and three being carjacking + serious bodily injury resulting in death).  The classification mattered because the indictment did not charge any of the facts relating to bodily injury mentioned in clauses (2) or (3) and the jury instructions defined the elements of the government’s burden of proof with reference only to the first paragraph of §2119.  If clauses (2) and (3) were deemed sentencing provisions, this would not matter, and Jones could be sentenced to 25 years based on the serious bodily injury caused to one of the victims; if clause (2) and (3) were read as separate offense provisions containing new elements, then the government’s failure to plead these elements in the indictment and prove them before the jury would preclude it from seeking the 25-year penalty against Jones.

In a 5-4 opinion, the Supreme Court concluded that “the fairest reading of §2119” was to treat the serious bodily harm provision as an element of a separate offense, rather than as a mere sentencing enhancement. Justice Kennedy, joined by three other dissenters, disagreed—relying in part on the fact that the statute “uses the active voice in the main paragraph and the passive voice in clauses (2) and (3).”  While recognizing that the rule was not an absolute one, Justice Kennedy argued that “[i]n the more common practice, criminal statutes use the active voice to define prohibited conduct”— and the passive voice when listing sentencing factors.   This inference based on the statute’s use of the “passive voice” certainly did not do all, or even the bulk, of the work in leading Justice Kennedy (or the other dissenters) to the conclusion that clauses (2) and (3) should be read as sentencing enhancements, but the dissenters did emphasize it to bolster/corroborate their reading of the statute.

More recently, in Dean v. United States, the Supreme Court majority relied on Congress’ use of the passive voice to bolster its interpretation of a firearms enhancement provision in 18 U.S.C. §924(c)(1)(A). That statute contains a three-part structure similar to the carjacking statute at issue in Jones:

“[A]ny person who, during and in relation to any crime of violence or drug trafficking crime . . . uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime—

(i) be sentenced to a term of imprisonment of not less than 5 years;

(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and

(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.”

This time, there was no dispute over whether clauses (ii) and (iii) were sentencing provisions or separate offense provisions—the parties agreed that they were sentencing provisions.   The disagreement instead was over whether clause (iii) contains a requirement that the defendant intend to discharge the firearm. (Defendant Dean had carried a gun while robbing a bank; as he was collecting money from a teller’s drawer, the gun accidentally discharged.)  The Court, in a 7-2 opinion, held that clause (iii) did not contain an intent requirement.   Justice Roberts’ opinion for the Court began by noting that the text of clause (iii) “does not require that the discharge be done knowingly or intentionally, or otherwise contain words of limitation.”  The opinion went on in the next paragraph to note that Congress’ use of the passive voice “further indicates” that the clause does not require proof of intent because the “passive voice focuses on an event that occurs without respect to a specific actor, and therefore without respect to any actor’s intent or culpability.  It is whether something happened—not how or why it happened—that matters.”

These two Supreme Court references to the passive voice as interpretively significant—employed a decade apart—appear to be isolated.  A quick Westlaw search reveals only four other post-1944 Supreme Court statutory opinions that even mention the passive voice, and those do so only to observe that Congress’s use of the passive voice leaves the statute’s meaning indeterminate.  See United States v. Wilson, Watson v. United States, Gladstone Realtors v. Village of Bellwood, and E. I. du Pont de Nemours & Co. v. Train.

So, what to make of the Court’s “passive voice” references in Jones and Dean? It is hard to tell.  If we can generalize from two cases, the Supreme Court seems most likely to give interpretive weight to a statute’s use of the passive voice when that use is repeated throughout a statutory provision (e.g., in multiple clauses), perhaps suggesting a deliberate structural choice.   Moreover, as with most grammar canons, the Court seems likely to employ passive-voice-based inferences only to bolster or corroborate a statutory interpretation reached through other interpretive canons and tools.   Upshot:  For counsel seeking to convince the Court to interpret a criminal statute in a particular direction, it is worth making passive-voice based arguments favoring a particular construction—but briefs are best off leading with other interpretive tools and throwing the passive voice argument in as a corroborative device.

The LAPD obtained a warrant to search a licensed medical marijuana facility. The LAPD did not, however, tell the judge that the place to be searched was licensed. The search proceeded. Around 209 pounds of marijuana, 21 pounds of hashish, and 12 pounds of marijuana oil were seized along with $186,416.00. The facility wanted the money back, but it had been turned over federal law enforcement and forfeiture proceedings were started. If forfeited, the city stood to gain about 80 percent of the money. The Ninth Circuit The Ninth Circuit’s ruling (pdf) has the full details. This passage seems to sum up [...]]]> The Ninth Circuit just issued an opinion about the interplay between state law enforcement, federal law enforcement, the Fourth Amendment, and state law.

The LAPD obtained a warrant to search a licensed medical marijuana facility. The LAPD did not, however, tell the judge that the place to be searched was licensed. The search proceeded. Around 209 pounds of marijuana, 21 pounds of hashish, and 12 pounds of marijuana oil were seized along with $186,416.00. The facility wanted the money back, but it had been turned over federal law enforcement and forfeiture proceedings were started. If forfeited, the city stood to gain about 80 percent of the money. The Ninth Circuit The Ninth Circuit’s ruling (pdf) has the full details. This passage seems to sum up the problem and the way in which the LAPD erred.

While there may have been probable cause to search UMCC for a violation of federal law, that was not what the LAPD was doing. Nothing in the documents prepared at the time the warrant was obtained from the state court or in the procedure followed to obtain that warrant supports the proposition that the LAPD thought it was pursuing a violation of federal law. Instead, it sought a warrant from a state court judge, though, as the District Court found, it lacked probable cause for a state law violation and failed to inform the state court judge of relevant facts that supported the conclusion that UMCC was not in violation of state law. The LAPD, a city agency, never initiated the process of seeking a federal search warrant from a federal magistrate or indicated that it was pursuing a violation of federal law.

I defer to Fourth Amendment scholars as to whether this ruling makes sense. Nonetheless, it seems that the federal government’s new policy might mean that state or local government that wants the federal government involved in going after medical marijuana facilities will have to persuade the federal government that a facility is not complying with state law. That requirement seems to match what the Ninth Circuit is saying state and local law enforcement groups should do with state judges in the first place.

Fueled by police reliance on offender databases and advances in crime scene recovery, a new type of prosecution has emerged in which the government’s case turns on a match statistic explaining the significance of a “cold hit” between the defendant’s DNA profile and the crime-scene evidence. Such cases are unique in that the strength of the match depends on evidence that is nearly entirely quantifiable. Despite the growing number of these cases, the critical jurisprudential questions they [...]]]> I wanted to flag a terrific new paper on SSRN that will be coming out in NYU Law Review next year.  It’s by Andrea Roth (currently a fellow at Stanford Law School) and entitled “Safety in Numbers?  When DNA Alone is Enough to Convict.”  The Abstract follows the jump:

Fueled by police reliance on offender databases and advances in crime scene recovery, a new type of prosecution has emerged in which the government’s case turns on a match statistic explaining the significance of a “cold hit” between the defendant’s DNA profile and the crime-scene evidence. Such cases are unique in that the strength of the match depends on evidence that is nearly entirely quantifiable. Despite the growing number of these cases, the critical jurisprudential questions they raise about the proper role of probabilistic evidence, and courts’ routine misapprehension of match statistics, no framework currently exists – including a workable standard of proof – for determining sufficiency of the evidence in such a case. This article is the first to interrogate the relationship between “reasonable doubt” and statistical certainty in the context of cold hit DNA matches. Examining the concepts of “actual belief” and “moral certainty” underlying the “reasonable doubt” test, I argue that astronomically high source probabilities, while fallible, are capable of meeting the standard for conviction. Nevertheless, the starkly numerical nature of “pure cold hit” evidence raises unique issues that require courts to apply a quantified threshold for sufficiency purposes. While any threshold will be arbitrary, I argue – citing recent juror studies and the need for uniformity and systemic legitimacy – that the threshold should be no less favorable to the defendant than a 1 in 1000 chance that the defendant is not the source of the evidence.

Enter Ron Huberman, the new chief officer of Chicago public schools.  He has a plan to stop the killing, one that is based on an analysis [...]]]> The new chief officer of Chicago public schools has a fresh strategy for preventing the killings of public school students.  Such killings occur with alarming regularity; 67 since the start of the 2007 -2008 academic year.  If this doesn’t sound bad enough, the 67 doesn’t include the hundreds of students who were shot or beaten but managed to survive.  Right now Derrion Albert—the football player and honor student who was beaten to death when he got caught between rival gangs—is dominating the headlines.  But anyone who lives in Chicago expects that we’ll soon know another name.  The violence is relentless.

Enter Ron Huberman, the new chief officer of Chicago public schools.  He has a plan to stop the killing, one that is based on an analysis of more than 500 students who were attacked.   The plan might work, provided that Chicago is able to resist its inevitable temptations.

As Susan Saulny summarized in the New York Times,

Officials know that deadly violent outbursts are not truly random. The students at the highest risk of violence, by statistics, are most likely to be black, male, without a stable living environment, in special education, skipping an average of 42 percent of school days at neighborhood and alternative schools, and having a record of in-school behavioral flare-ups that is about eight times higher than the average student.

The analysis of student attacks also show that they typically happened beyond a two-hour window from the start and end of school — that is, late at night or very early in the morning — and blocks away from school grounds, where neighborhood boundaries press against one another.

 Huberman plans to spend $30 million on the 10,000 students whose profiles suggest that they are most at risk.  Chicago is aiming to radically intervene in the lives of these students in ways that “favor mental health strategies and prevention over policing and punishment.”  The goal is to create meaningful relationships with adults and to give each student a part-time job.  All of this requires coordination between the schools, the Police Department, the Department of Children and Family Services, and local community groups.  Chicago is also “becoming more strategic about providing safe passage to school by increasing police enforcement and by keeping tabs on gang and clique activities in real time as their turf wars hopscotch around school catchment areas.”

Chicago’s plan is an application of problem-oriented policing, which Professor Herman Goldstein pioneered in the 1970s and 1980s.  At root, problem-oriented policing calls on police to increase their understanding of the conditions that create community problems and to understand seemingly discrete events as related incidents that share common characteristics.

Consider this description of problem-oriented policing, taken from Michael Scott’s Problem-Oriented Policing, Reflections on the First 20 Years:

Under a problem-oriented policing approach, the police would recognize how functions like moral education, youth recreation and charity are integral to public safety, but would not see their role as one of providing these services directly, at least not permanently.  The key for the police is first, to establish some sense of ownership or responsibility for a community problem, and if the problem falls within the police mandate, either address it themselves, [or] broker ownership to some other entity. . . .  The police may join with many divergent entities in studying a problem, but ultimately the responsibilities for various responses should be apportioned among those entities according to their resources and competencies. 

Problem-oriented policing can yield extraordinary results.  One classic example is how New York City was able to clean up its subway system after closely studying the problem of vandalism and implementing responses that ranged from changing the way that spray paint was sold to immediately taking defaced cars out of service.  The work of Michael Scott and others provides additional examples.

As the New York Times noted and Huberman recognizes, kids have “to bite” in order for Chicago’s new approach to work.  This is the part that makes me nervous.  A problem-oriented intervention sometimes morphs into a traditional law and order approach.  Again New York City provides an example.  Rudy Giuliani may have described himself as subscribing to broken windows—that is, as cracking down on quality-of-life offenses to provide a sense of order that would discourage more serious crimes—but the quality-of-life crackdown also provided a pretext for making arrests that led to bigger collars and ultimately worsened relationships between the police and minority communities. 

The 10,000 kids at the heart of Huberman’s plan will have myriad connections to the neighborhood gangs that Chicago would like to break up or see unravel.  Many of the kids will have information that the Chicago police department would find enormously useful.  But unless Chicago resists the temptation to try to use these meaningful relationships to make bigger collars, the kids won’t bite.  Then Huberman’s smart plan will become another failed effort.

Putting aside Mauer’s denial, the interesting thing about this is whether it’s actually wrong to steal signs. There’s no rule against it, and so the answer is: it depends on the players’ perceptions of the situation. If you run afoul of the norm (i.e., a batter looking behind him) then you are likely to face informal sanctions in the form of a baseball to the body. Mauer’s sign-stealing, by contrast, seems acceptable: (1) it was a crucial game; and (2) the Tigers didn’t protect their signs despite knowing a man was on second. But it isn’t so acceptable that he [...]]]> Via Deadspin comes this great video of Joe Mauer, apparently reading the catcher’s signs and relaying them to batter Jason Kubel.

Putting aside Mauer’s denial, the interesting thing about this is whether it’s actually wrong to steal signs. There’s no rule against it, and so the answer is: it depends on the players’ perceptions of the situation. If you run afoul of the norm (i.e., a batter looking behind him) then you are likely to face informal sanctions in the form of a baseball to the body. Mauer’s sign-stealing, by contrast, seems acceptable: (1) it was a crucial game; and (2) the Tigers didn’t protect their signs despite knowing a man was on second. But it isn’t so acceptable that he can admit it publicly. That is: Mauer’s sign stealing was at once lawful, permitted in the social context, and publicly wrongful.

(H/T: Reader CDP. For more on the history of sign-stealing in baseball, check out The Echoing Green: The Untold Story of Bobby Thomson, Ralph Branca and the Shot Heard Round the World)

Does this distinction mean anything or is it just a feel-good change?  Is someone is falsely or incorrectly labeled as a “person of interest,” are they barred from recovering because that sounds more innocuous?  I doubt it, but input from people who know would be welcome.

My favorite example of semantic failure, BTW, is when governments [...]]]> In the graduate-student murder that occurred at Yale last week, media reports indicate that the police are looking at a “person of interest.”  I guess this term has now officially replaced “suspect” in the lexicon.  As far as I can tell, this change started with the case of Richard Jewell, the alleged Olympic bomber, who was cleared of any wrongdoing but successful sued various news outlets for calling him a suspect.

Does this distinction mean anything or is it just a feel-good change?  Is someone is falsely or incorrectly labeled as a “person of interest,” are they barred from recovering because that sounds more innocuous?  I doubt it, but input from people who know would be welcome.

My favorite example of semantic failure, BTW, is when governments officials in the early 1930s decided that using “panic” to describe economic downtowns was a mistake.  So they came up with “depression.” Quite the pick-me-up.

UPDATE:  I really should have called this post “Round Up The Usual Persons of Interest.”  Oh well.

Ah, Texas! Or to be more precise [...]]]> Yesterday I saw an article about a jewelry heist in London where two men in nice suits got away with $65 million of merchandise. The weird part to me was that the store had a similar event in 2003 where 23 million pounds worth of jewels were taken, and more recently in 2007 a branch suffered a robbery again with well-dressed, and this time chauffeured, men stealing 10 million pounds in gems. So that makes me wonder whether the rich really do trust those who seem rich (i.e. Madoff types) and then get ripped off. In addition, who is insuring and/or protecting these stores? Right now neither can be happy. Still that is small compared to the Microsoft news.

Ah, Texas! Or to be more precise the U.S. District Court for the Eastern District of Texas, home to patent fun like no other place in the country (although I recall someone is showing how other district courts are now competing with E.D. Texas for the patent crown). It seems that Mighty MS and its Word program has been found to violate a patent. According to CNET “In Tuesday’s ruling, Microsoft was also ordered to pay an additional $40 million for willful infringement, as well as $37 million in prejudgment interest. The order requires Microsoft to comply with the injunction within 60 days and forbids Microsoft from testing, demonstrating, or marketing Word products containing the contested XML feature.” The order allows MS to take two months to appeal, settle, or work around the patent problem.

I wonder whether the injunction would require deauthorizing the sold versions? In addition, with the Blackberry case I think there was a carve out for the government because it relied on the system so much. Given Word’s dominance, I would hope that any court order that might threaten how people use already purchased software considers the impact that would have on millions of people. I am not saying that such a result is in the works or required by the current injunction. But if an injunction requires cutting off support or features, people may find that lose access to their works. Again whether the technology at issue would require such a result is unclear to me. Then again, as I argue in Property, Persona, and Preservation, as we move into a world where software and technology providers can update or cut-off access to one’s creations, such a result is not as impossible as it sounds. Can you say Kindle?

In the frenzy of news coverage of the recent incident involving the arrest of Professor Henry Louis Gates in his home, only a small amount of attention was devoted to the issue of police discretion.  Gates was arrested on a charge of disorderly conduct, which was later dropped. Charges such as disorderly conduct basically give the police an enormously broad range of discretion to arrest anyone for nearly any reason.

President Obama said that the police “acted stupidly,” [...]]]> In what country can people routinely be arrested (and sometimes imprisoned for a significant amount of time) based on the whim of a police officer or a judge?  Sounds like something that would happen in a totalitarian state, but it’s the way things work in the United States.

In the frenzy of news coverage of the recent incident involving the arrest of Professor Henry Louis Gates in his home, only a small amount of attention was devoted to the issue of police discretion.  Gates was arrested on a charge of disorderly conduct, which was later dropped. Charges such as disorderly conduct basically give the police an enormously broad range of discretion to arrest anyone for nearly any reason.

President Obama said that the police “acted stupidly,” and he was roundly castigated for making this statement.  He misspoke, not because he criticized the police but because the problem wasn’t that the police acted stupidly — it was that they had a tremendous amount of discretion to arrest.

Should the police have so much power to arrest a person?  With vague charges such as disorderly conduct, the police can essentially arrest a person who says things they don’t like or threatens to complain about them.

And consider this story, from the Chicago Tribune:

Clifton Williams arrived at the Will County Courthouse in Joliet and sat in the fourth-floor courtroom where his cousin was pleading guilty to a felony drug charge.

As Circuit Judge Daniel Rozak handed down the cousin’s sentence — 2 years’ probation — Williams, 33, stretched and let out a very ill-timed yawn.

Williams’ sentence? Six months in jail — the maximum penalty for criminal contempt without a jury trial. The Richton Park man was locked up July 23 and will serve at least 21 days. . . .

A Tribune review of a decade’s worth of contempt-of-court charges reveals that Rozak jails people — typically spectators whose cell phones go off or who scream or shout profanity during sentencing — at a far higher rate than any other judge in the county. There are now 30 judges in the 12th Judicial Circuit, but since 1999, Rozak has brought more than a third of all the contempt charges, records show.

Apparently, the yawn was very loud and disruptive, but jail?  Six months?  Why not simply kick him out of the courtroom?

Judges have tremendous discretion to issue contempt charges.  It is way too much, and there are few limits to reign judges in.  The article continues:

Judges have broad discretion under the law, which defines contempt as acts that embarrass, hinder or obstruct the court in its administration of justice or lessen its authority or dignity. As long as the sentence is not longer than 6 months, there is no review of the case — unless the offender appeals to the judge or a higher court. . . .

In the two-story brick home where Williams had been living with his aunt Cheryl Mayfield and caring for his 79-year-old grandmother, family members said they were in shock over the sentence but were unable to afford an attorney to appeal.

The public has a First Amendment right to attend courtroom proceedings, and judges like Rozak who issue such excessive contempt charges might have a deterrent effect on people attending his courtroom.

While police must have the ability to arrest a person who threatens to become violent or dangerous, and while judges must be able to govern their courtrooms, they have far too much discretionary power.  These two recent incidents demonstrate the need to reign in excessive discretion.

Two years ago, I noted that H. Beatty Chadwick was about to spend his thirteenth year in a Pennsylvania jail for civil contempt, arising out of his failure to comply with a 1995 order to turn over assets in a divorce litigation.  I opined that:

Unless circumstances change, Chadwick will die in jail to preserve an idea: even civil law must be obeyed. As Robert Cover wrote, “Legal interpretation takes place in a field of pain and death.”

So, I guess that Cover needs to be footnoted: “Except when judges blink.”  Beatty is out.  And his jailers are celebrating:

About 35 prison staffers gathered yesterday – some crying and hugging Chadwick – to say goodbye to the “model inmate” who had worked in [...]]]>

Beatty Chadwick, Post Release

Two years ago, I noted that H. Beatty Chadwick was about to spend his thirteenth year in a Pennsylvania jail for civil contempt, arising out of his failure to comply with a 1995 order to turn over assets in a divorce litigation.  I opined that:

Unless circumstances change, Chadwick will die in jail to preserve an idea: even civil law must be obeyed. As Robert Cover wrote, “Legal interpretation takes place in a field of pain and death.”

So, I guess that Cover needs to be footnoted: “Except when judges blink.”  Beatty is out.  And his jailers are celebrating:

About 35 prison staffers gathered yesterday – some crying and hugging Chadwick – to say goodbye to the “model inmate” who had worked in the law library and forged friendships with everyone from guards to senior administrators, said prison Superintendent John Reilly.

“He’s done more time than maybe the majority of people convicted of homicide do,” said Reilly, a former prosecutor. “What person in his right mind is going to flaunt the authority of the court and say, ‘I’m going to spend the rest of my life in jail?’ People just aren’t made that way.”

Maybe so, but that claim seems to be another example of how we routinely ignore the tremendous emotional investment people have in being vindicated by courts.  As far as I can tell, the state courts of Pennsylvania have not abandoned their factual finding that Chadwick had the money and refused to comply with their order. They’ve just concluded that his ornery will would never bow to any legal pressure.

But just because the judges of Delaware County gave up on compliance doesn’t mean that Chadwick has paid his debt to the courts, his ex-wife, or society at large.  His conduct (as alleged) created a social harm which his ultimate freedom only made worse.  As the  attorney for Chadwick’s ex-wife pointed out, “[h]ere’s a guy who thumbed his nose at a court order for 14 years … There should be some kind of sanctions for doing that.”

Aside from the celebrity context, we may see other misuses of Twitter feeds.  Governments increasingly use Twitter to alert the public about car accidents, fires, crime reports, and public health emergencies.  [...]]]> Individuals increasingly use social networking tools to commit fraud.  Philadelphia Eagles player Asante Samuel discovered his Twitter imposter after the Philadelphia Daily News attributed to him comments from his doppleganger’s Twitter feed.  Keith Olbermann was a victim of Twitter impersonation as was Tony La Russa, manager of the St. Louis Cardinals.  Temple professor Susan Jacobson predicts that much like the early days of the Internet when individuals bought the domain names of celebrities to sell it to those notables for a tidy profit, we will likely see variations of such mischief on social networking sites.

Aside from the celebrity context, we may see other misuses of Twitter feeds.  Governments increasingly use Twitter to alert the public about car accidents, fires, crime reports, and public health emergencies.  A tweet about a fabricated fire or car accident could cause dangerous traffic jams and needless panic.  Someone could impersonate a police department, sending tweets about crimes never committed.  This teaches us to be circumspect about all of those Twitter updates.

H/T to Jim Stanton for his blog posting, “Social Media Fraud On the Increase.”

Wikimedia Commons Image

“I gave every weapon of mine to my attorney. I swear to the Lord,” Jerome Jay Ersland said.

Oklahoma County District Judge Tammy Bass-LeSure last week allowed Ersland, 57, of Chickasha to be released on $100,000 bail but she banned him from any access to weapons. The hearing today was to see if he had complied with her order.

Ersland told the judge he no longer owns the weapons. Defense attorney Irven Box said he took the weapons and other personal property [...]]]> Wow.   A pharmacist accused of murder decided to pay his lawyer with his firearm collection.  When the Judge presiding over his case inquired as to how many guns, exactly, that collection entailed, a constitutional fight ensued.  Quick: which amendment gets play?  (Hint: it’s not the 2nd!)

“I gave every weapon of mine to my attorney. I swear to the Lord,” Jerome Jay Ersland said.

Oklahoma County District Judge Tammy Bass-LeSure last week allowed Ersland, 57, of Chickasha to be released on $100,000 bail but she banned him from any access to weapons. The hearing today was to see if he had complied with her order.

Ersland told the judge he no longer owns the weapons. Defense attorney Irven Box said he took the weapons and other personal property from Ersland as payment of part of the attorney fees in the case.

Box told the judge he has accepted other unusual payments in the past, including comic books.

The case arises out of Ersland’s shooting – in purported self-defense – of an individual robbing his store.  You can see the video here.  And as for the constitutional right to withhold information about Ersland’s gun collection?  That would be the right against self-incrimination:

District Attorney David Prater also said prosecutors could use the answer to that question against Ersland at trial.

The judge at one point said she would put Ersland back in jail if he didn’t answer her question but eventually she decided not to revoke his bail. She said she had learned a lesson and will not in the future let a defense attorney collect a defendant’s weapons.

This advice is generalizable. Take cash over credit, and credit over barter.  And never, ever, take the instruments of the crime.

Is waterboarding torture?  Charles Krauthammer argues today that because Nancy Pelosi was briefed about waterboarding in 2003 (after it happened), she blessed it.

“Our jurisprudence has the “reasonable man” standard … On the morality of waterboarding and other ‘torture,’ Pelosi and other senior and expert members of Congress represented their colleagues, and indeed the entire American people, in rendering the reasonable person verdict. What did they do? They gave tacit approval. In fact, according to Goss, they offered encouragement. Given the circumstances, they clearly deemed the interrogations warranted.”

I don’t understand this at all. The recently released Bybee/Yoo memo admits that waterboarding satisfies the predicate act requirement under the US Code -i.e., it is a “threat of imminent death” — an the only [...]]]>

Pardoner of the House?

Is waterboarding torture?  Charles Krauthammer argues today that because Nancy Pelosi was briefed about waterboarding in 2003 (after it happened), she blessed it.

“Our jurisprudence has the “reasonable man” standard … On the morality of waterboarding and other ‘torture,’ Pelosi and other senior and expert members of Congress represented their colleagues, and indeed the entire American people, in rendering the reasonable person verdict. What did they do? They gave tacit approval. In fact, according to Goss, they offered encouragement. Given the circumstances, they clearly deemed the interrogations warranted.”

I don’t understand this at all. The recently released Bybee/Yoo memo admits that waterboarding satisfies the predicate act requirement under the US Code -i.e., it is a “threat of imminent death” — an the only questions remaining are (i) what is the intent requirement;  and (ii) was the resulting mental harm “prolonged.”
These aren’t moral questions.  They are mixed questions of law and fact.  Pelosi’s briefing provided her neither enough context nor enough facts to make headway at the definitional problem.  That’s important because Pelosi – like all of us – operates on a presumption of government legality. She’s told: we’ve investigated the problem, and we determined that this technique is lawful.  By sitting there, she’s at most agreeing to the proposition that if it was lawful, it is moral under certain circumstances.   That doesn’t mean that if the behavior was unlawful she would have sanctioned it.  For many, a determination of illegality makes a great deal of difference in determinations of morality.  That’s why lawyers -and judges- have so much power in society.

But the “reasonable people” on the jury that may try John Yoo or Jay Bybee would have an different task: to determine guilt.  They would be told about the known/contested science on the mental harm caused by waterboarding.  They would be told facts about the captive’’s pre-existing mental state.  They would be told about the number of times the captives were waterboarded, which may bear on what information the agents were really after. And they will be given competing stories about torture’s efficacy.    And, finally, they will make a judgment.  Not about whether the agent’s behavior was reasonable (that could be a decision in a civil trial, on a qualified immunity pre-trial motion).  Rather, the jury will be asked if the prosecution proved the elements of a crime beyond a reasonable doubt.  The only way I can see the agent’s reasonableness becoming relevant is if they raise a necessity defense.  And I’m not even sure that they could, given the actual facts.

There are many times when the judgments of representatives in Congress can and do substitute for the mass of citizens.  But here we’ve got a very specific criminal law which a few individuals may have violated. Maybe we shouldn’t have such a law, and maybe that law ought to be modified to give the President the authority to suspend it given certain findings.  But the fact that a few members of Congress heard that we were engaging this activity is legally irrelevant to the agents’ and lawyers’ guilt.

Unless, perhaps, Krauthammer is looking to resuscitatethe good old days, when men were men, women were women, and Speakers were really, really powerful.  Maybe he wants to give Pelosi a nudge toward legislative hegemony by usurping some of Obama’s power to pardon.  I bet she could live with that.

Last Saturday night, at the end of the NBA playoff basketball game between the Dallas Mavericks and the Denver Nuggets, Antoine Wright of the Mavericks broke the rules. He intentionally collided with Carmelo Anthony of the Nuggets, who had possession of the basketball, in a play that ordinarily would produce a whistle from the officiating crew and a stoppage in play. That was Wright’s objective. At the instruction of the Mavericks’ coach, he wanted to be called for a foul, so that play would be stopped and the Mavs would have a chance to regroup and capture the ball. (The Mavs had a foul to give at the time, which means that the victim, Anthony, would not have [...]]]> From the Department of Paradoxes in Sporting Jurisprudence:

Last Saturday night, at the end of the NBA playoff basketball game between the Dallas Mavericks and the Denver Nuggets, Antoine Wright of the Mavericks broke the rules. He intentionally collided with Carmelo Anthony of the Nuggets, who had possession of the basketball, in a play that ordinarily would produce a whistle from the officiating crew and a stoppage in play. That was Wright’s objective. At the instruction of the Mavericks’ coach, he wanted to be called for a foul, so that play would be stopped and the Mavs would have a chance to regroup and capture the ball. (The Mavs had a foul to give at the time, which means that the victim, Anthony, would not have been entitled to shoot foul shots. Instead, the Mavs Nuggets would have in-bounded the ball.)

As basketball fans know, the officiating crew did not whistle Wright for the foul. Anthony continued onward, shot the ball, and scored the winning basket for Denver.

After the game, the Mavericks were furious that the referees had not called Wright for the intentional foul, and the NBA officially confirmed that the crew on the court had erred.

That prompts this question: Is there a right to be punished? If so, when, and if so, why?

Even casual basketball fans know that the final minute or two of many basketball games is a choreographed ballet of intentional fouls and foul shots. Players, coaches, fans, and referees have come to expect them. It’s part of the game, like Michael Jordan’s tongue or LeBron James’s talcum powder. In a way, Wright and the Mavericks played by the rules, and they were justifiably upset when the referees didn’t.

In a different, formal way, of course, Wright and the Mavs weren’t playing by the rules at all. Viewed from a third-party perspective (perhaps from the referees’ perspective), Wright’s disappointment and the Mavericks’ outrage seem out of place. Wright broke the rule. Having broken the rule, it seems to me that neither he nor the team has any legitimate expectation regarding the form of his punishment. Why, in other words, should the wrongdoers benefit by stopping the clock) and the victims suffer when the rules are broken? This seems to be the perfect case for the maxim “No harm, no foul.” Wright fouled Anthony but didn’t cause Anthony or the Nuggets any harm. Why reward Wright?

It’s easy to imagine a scenario in which where Anthony and the Nuggets might have a stronger case, even granting the possibility that Anthony might still have made that final shot. If Wright had fouled Anthony recklessly or with an intent to injure Anthony, that is, if Wright acted with a different sort of mens rea, then Wright might have been liable for a flagrant foul (with some interesting jurisprudential twists of its own), and protecting the health or safety of Anthony and similarly situated players, by calling the foul, might well take precedence over the game’s competitive flow. But this grants Anthony a stronger case for punishment, not Wright; we don’t want to encourage Wright to injure Anthony in order to obtain his team’s reward. The punishment in this scenario might be adjusted upward to an extent that it deters the strategic use of flagrant fouls, or it might be deferred until after play has concluded.

I pause here to note Wright’s interest in punishment, which in Kantian or Hegelian terms might flow from Wright’s own status as an autonomous agent.  (I’m answering my (rhetorical) question with assistance from an interesting article by Markus Dubber, The Right to Be Punished: Autonomy and its Demise in Modern Penal Thought, 16 Law & History Rev. 113 (1998). ) It might be said that whether Wright’s foul was flagrant or merely intentional, his claim for punishment is grounded in his claim to status as an autonomous moral agent, intending to bring on himself the full consequences of his actions.  That logic falls apart, I think, on the ground that in context Wright is no autonomous moral actor; he is an agent, or an instrument, of his coach or of the team, or both.  Wright didn’t choose to foul; he was told to foul. 

The more challenging question, it seems to me, is how basketball society should enforce its collective expectations regarding the tactical use of wrongdoing.  A sporting event between two teams is a kind of competitive commons.  Only one team can win the game (usually, and almost always in basketball), but both teams have kind of shared duty to perpetuate the sport.  That involves both playing by formal rules and playing by the informal rules, or the collective expectations of the relevant sporting community.  ”Ordinary” fouling in basketball is a weird way of giving back to the game.  *Tactical* fouling, on the other hand, might be said to do a kind of violence to the particular competition, but it might be part of the scheme of the sport.  Does Wright’s wrong make a right?

Personally, I don’t think so, but I’d be interested in hearing from folks who can think of both analogous and distinguishable situations in other contexts. My instincts here are informed by my deeper experience with soccer, where officiating practices are quite different. As I understand the matter, officiating in basketball, like officiating in football, is supposed to be judgment-free: If the rule is broken, the referee is supposed to call a foul. Everyone knows that basketball and football officials really do exercise discretion, but that discretion isn’t part of the rules or the ethos of the sport. In fact, if the officials in the Mavs/Nuggets game exercised discretion by observing Wright’s intentional foul yet deciding not to call it (cf. the current NHL playoffs), then they may have broken their own rules.

Contrast this with officiating in soccer, which has no “rules.” Soccer has laws, and it is understood by the soccer community that the center referee typically has broad discretion in interpreting and applying those the laws, especially when it comes to penalizing serious infractions with cautions and ejections and when it comes to deciding whether a violation of the laws is serious enough to warrant a penalty kick. In those cases, a penalty is not merely awarded, but earned. Soccer referees have discretion to delay calling a foul or to defer it altogether, if the victimized team retains possession of the ball and an attacking advantage.  Soccer players dispense their own justice, as when one team voluntarily relinquishes the ball to the other after the ball has been deliberately been put out of play in order to enable an injured player to be treated.  The team that stops play is entitled to the return of the ball – by universal custom, not by law or order of the referee.

Soccer and basketball are, in other words, different sorts of sporting commons.  Soccer seems to be governed by equity, and basketball seems to be governed by law. My critique of the NBA’s post-game reversal of Wright’s  intentional foul non-call involves applying equitable maxims to a legal case (“One who seeks equity must do equity”; “One who comes into equity must come with clean hands”; “Equity will not allow a statute to be used as a cloak for fraud”). It’s plausible to object that the civil procedure of sports hasn’t merged the two.  One wonders, however, which model is better suited to adapting a single sport across a multiplicity of cultures.

Having just been ticketed by the Cornell police for driving while talking on a cellphone, I’m particular aware of the growth of anti-cellphone laws.  (A side note: NY has a bizarre system of indeterminate fines that aren’t reduced to a sum until after you plead guilty to the offense.  To the extent that this post is read by a municipal judge in Ithaca, I’d ask for mercy.)   But the trend against cellphones should be resisted: we should regulate cellphone-motivated accidents through the private-party negligence regime, not the police-directed traffic liability system.

Deciding which traffic laws to enforce solely through private party lawsuits is [...]]]> Will Saletan argues that some local government will soon ban possessing cellphones in the car.  Shorter Saletan:  “first, they came for the train conductors.”

Having just been ticketed by the Cornell police for driving while talking on a cellphone, I’m particular aware of the growth of anti-cellphone laws.  (A side note: NY has a bizarre system of indeterminate fines that aren’t reduced to a sum until after you plead guilty to the offense.  To the extent that this post is read by a municipal judge in Ithaca, I’d ask for mercy.)   But the trend against cellphones should be resisted: we should regulate cellphone-motivated accidents through the private-party negligence regime, not the police-directed traffic liability system.

Deciding which traffic laws to enforce solely through private party lawsuits is a knotty problem, but I think the answer relates to the imposition of strict liability more generally.  When an activity is unreasonably dangerous (drunk driving) and has little to no desirable social consequences, we make it unlawful even in the absence of harm to others.  By contrast, when an activity has both positive and negative social consequences – like long road trips – we punish negligence (nodding at the wheel) only when leads to an accident.

Is cellphone possession and use so unreasonably dangerous, and so without public benefit, that we ought to treat it like drunk driving?  Saletan thinks so, and cites a study that finds drivers equally distracted when drunk as when talking on the phone.  (Not equally dangerous, which is what Saletan says the study claims.)  And I’ll admit that there’s no reason not to force people to use hands-free devices.

But many things can distract drivers.  Should we prohibit passengers?  Especially younger ones, who sometimes have the habit of fighting in the back seat?  How about radio? I’d be curious to see an experiment that compares people listening to Rush or Stern to those who are drunk.  Those guys can really suck you in!

Moreover, cellphone use while driving permits important social benefits.  It boosts productivity by decreasing time wasted in traffic.  A rule that prohibited cellphone use, instead of forcing drivers to merely internalize the cost of use by making them liable for negligent driving, would chill conduct that we want to encourage.  It would also significantly increase the costs of commuting, as individuals will once again have no recourse but to listen to the radio or hum quietly to themselves.  So we should instead permit people to hold, and use, cellphones while driving.  If they hit another driver or cause damage to another’s property, however, we should treat cellphone use as prima facie evidence of negligence.