> I’ve been asked by my family members, my friends and my hairdresser why I represent criminals.
That's the most sad part of this article to me. Many people have lost innocent-until-proven-guilty in their minds. Tina has a good response in the article:
> The answer is that I, and other public defenders, don’t represent criminals. We represent poor people who are facing criminal charges — charges on which they are presumed innocent until proven guilty in court. We represent members of our communities who have a right to real and meaningful legal representation, even if they are poor.
There's a subtler point: even if they are criminals, it's still valid to represent criminals to make sure that justice is served. You want criminals punished for the crimes they did commit, not the ones they didn't. You want sentencing to be fair, not vindictive. You want conspirators and other partners to be identified and to be punished too; you don't want the one unrepresented person to be coerced by everyone else's lawyers into taking all the blame. You want loopholes, as long as they exist, to be as available to the poor as to the rich.
I think I'm actually more worried about the loss of this than the loss of innocence-until-proven-guilty. That's the sort of stuff that gets people thinking, if you don't want to be extrajudicially killed on the streets, don't sell untaxed goods if you have asthma.
There's also a not-quite-subtler point: many of the "crimes" in question are nonviolent and do no harm to anyone other than the supposed "criminal". The article specifically mentions "possession of a single joint" as something that can lead to life imprisonment if you do it three times. What kind of sense does that make?
The OP's characterization of it is wrong--three non-violent felonies couldn't trigger three-strikes' even before California's recent reform (you had two have two violent felonies first).
Moreover, for-profit prisons barely existed in the early 1990's when states like California and Washington started passing three strikes laws. Law enforcement, prison unions, private prisons, etc, have definitely benefited from these things, but the actual policies arose from public outrage in the 1980's and 1990's about the government being "soft on crime." For example, either California's law was passed on the back of public outrage at the murder of Polly Klass.
One bit of context that's lost in current discussions is how much consternation existed in the 1980's and 1990's about crime. If you look at the media from the time, there is a ton of hand-wringing about criminals being let out early on parole or clearly guilty people getting acquitted "on a technicality" (usually a 4th amendment violation).
A movie that captures the zeitgeist of the time is the 1983 movie Star Chamber: https://en.wikipedia.org/wiki/The_Star_Chamber: "Judge Steven Hardin (Michael Douglas) is an idealistic Los Angeles jurist who gets frustrated when the technicalities of the law prevent the prosecution of two men who are accused of raping and killing a 10-year-old boy. They were driving slowly late at night and attracted the suspicion of two police officers, who wondered if the van's occupants might be burglars. After checking the license plate for violations, the policemen pulled them over for expired paperwork, claimed to have smelled marijuana, then saw a bloody shoe inside the van. However, the paperwork was actually submitted on time (it was merely processed late), meaning the police had no reason to pull over the van and Hardin has no choice (see fruit of the poisonous tree) but to throw out any subsequently discovered evidence, i.e. the bloody shoe. Hardin is even more distraught when the father of the boy attempts to shoot the criminals in court but misses and shoots a cop instead. Subsequently, the father commits suicide while in jail only after he informs Hardin that another boy has been discovered raped and murdered and tells him "This one is on you, your Honor. That boy would be alive if you hadn't let those men go." After hearing all this, Judge Hardin approaches his friend, Judge Caulfield (Hal Holbrook), who tells him of a modern-day Star Chamber: a group of judges who identify criminals who fell through the judicial system's cracks and then take actions against them outside the legal structure."
You missed that she's not talking about California's The Strikes laws - she's in Louisiana.
"In Louisiana, people with as few as two prior nonviolent felony convictions can face mandatory life imprisonment on charges as minor as possession of a syringe containing heroin residue or, until recently, possession of a single joint."
I think we over-imprison people, but let's not ignore there was an actual crime wave. Between, say, 1960 until the peak in 1991, violent crimes per 100k per year went from 160 to 758 for a 470% increase, remaining over 600 through 1997. And even in 1995 nobody knew that the crime wave had peaked; it would take another 8+ years (6 years of data plus reporting lag) for people to realize that.
There's no way not to have a large reaction to such a dramatic increase.
As long as there is some kind of incentive structure built into the jobs of people involved in law enforcement (and there needs to be, if you want them to do their jobs) it will be in at least some people's interest to maximise prosecutions. It is the purpose of a well-designed system to restrict their ability to do so. We have a word for circumventing these restrictions - "corruption".
Drugs have historically been illegal because the population had a moral objection to them, not because of some shady profiteering cabal. People have been criminalizing drug use (with alcohol being the most common target) for a very long time.
Non-violent crimes have been a concept long before someone stood to make money off them. (Of course, that doesn't imply that they make sense.)
Don't think you read that right. The first two strikes have to be felonies (not just possession). She also says that the third strike "until recently" could be possession of a joint, but not anymore, apparently.
I'm going to have to ask about the downvoting here. Do people think Capone was sentenced for the same crimes he was convicted of? Do people think those sentences meet the bar of "fair, non-vindictive punishment for tax evasion"?
I have no idea why you were downvoted (and physically couldn't downvote you as a direct reply, but anyway). I think I agree that Al Capone was nominally punished for a crime that wasn't one of the crimes he really ought to be punished for (although it was in fact also a crime). But on the other hand, I'm not sure that I think a seven-year sentence would have really been sufficient for the fullness of his crimes.
Perhaps more importantly, if Wikipedia's account is to be believed, he lost the tax evasion case because he had bad lawyers: first, one who admitted to the facts of the crime, and second, an initial defense team who didn't raise objections they could have raised. So I don't think the Capone example contradicts my claims in the end. We need defense lawyers for actual, unquestionable criminals because they have the singular goal of making sure people aren't unfairly or vindictively prosecuted. We understand that having just a prosecutor and a judge risks unjust outcomes. So it's unsurprising that wasn't the passive-voice "approach taken" with him: a trial without good defense is expected not to lead to a just approach, just as much as a trial without good prosecution or a good judge.
At best it's not clear what your point is or what position you're espousing, which I think is a mostly valid reason for downvote-and-move-on. For instance, it's not clear whether you think the prosecution of Capone was just or unjust.
> which I think is a mostly valid reason for downvote-and-move-on. For instance, it's not clear whether you think the prosecution of Capone was just or unjust
I don't see why this makes the comment less worthwhile. I think going for Al Capone that way was a terrible idea, but you seem to have changed your own mind in the other direction based on my viewpoint-free comment. (At least, that's what I get from "I'm not sure that I think a seven-year sentence would have really been sufficient for the fullness of his crimes".) I highlighted a point from your comment and pointed out that a lot of people don't share that value at all; I think that's worth noting regardless of whether your ultimate conclusion is "hmm, Al Capone illustrates that only punishing people for the crimes they committed is a bad idea" or "the US justice system has been going downhill since the early 20th century, but I wish people would come to their senses".
You also want the state to have the burden of proving guilt. Without an advocate for the defendant, it's very easy to go to jail without proof. Even if you did it, the state should still have to prove beyond reasonable doubt; the defense lawyer provides that reasonable doubt.
Exactly, everybody deserves a fair trial. A defending lawyer is a very important part of it. Normal people just don't know how court works, and have no chance whatsoever - even if not guilty.
Coming from a family of lawyers, I first realized that the belief in everyone's right to representation is not universal when many people I knew reacted vitriolically to lawyers representing inmates at Guantanamo. I really like the answer you quoted from the article, but it still relies on appealing to sympathy for the people being represented. But even those who deserve no sympathy deserve representation!
"many people I knew reacted vitriolically to lawyers representing inmates at Guantanamo"
This attitude that "criminals deserve no justice" that is pervasive nearly everywhere amazes me. I cannot understand why people really think any system is so foolproof as to charge only those guilty.
It's relatively easy to get people on your side of that debate. Tell them about how often people who have been convicted to face the death penalty are later exonerated.
The mom who apparently told her son that she would not bail him out also proudly told the reporter she told her son to not drop the soap in prison. A lot of people praised her for what she said. I am just sad that people think criminals deserve sexual assault as part and parcel of being in prison. The Jared from Subway who was convicted of sexual offenses against children faced similar public decries. People laugh at the idea of sexual assault and rape in prison. People here in the US laugh at the idea of sexual assault and rape in prison. When I approach them and tell them to reconsider what they're saying, they call me an accessory to sexual crime against children. I don't get it.
An old saying says judge a society bynhownit treatsnits worst-off people. When I think about what I've had to hear from otherwise sane, well-educated, and well-travelled people makes me wonder if there's any hope for humanity at all.
Yes, I've been saying this for years. It's astonishing how rare it is to hear someone express the same viewpoint. It disgusts me when people laugh about the idea of (specifically male) rape in prison, as if it is justice. But for whatever reason people have a very different reaction to rape when the victim is male instead of female.
I ask them two questions to get them to reconsider their position:
1. Do prisoners deserve to be raped as a form of punishment?
2. So you believe that women should be raped as punishment?
I believe that a just and fair society should never allow sexual assault to be used as a punishment. This is true whether someone in prison is guilty or innocent.
Completely agree with you. I think a lot of this stems from the media and reporting of crimes in general. News organizations create this want in society to find a suspect, any suspect, guilty or not. To top it off, at least in the US, we live in a society now where we overreact to implementing laws. Zero-tolerance and three-strike laws have created this army of unsympathetic, unforgiving, people who could care less about guilt or innocence.
I am a strong believer in second chances, and giving people the benefit of the doubt (or innocent until proven guilty). Sadly though, many offenders never get a second chance simply because society places a scarlet letter on their chest for life.
Society is at a point in time where many forget the reasoning for principles of the judicial system. The presumption of innocence in particular is critically important and written into most modern democracies constitution.
The alternative of being presumed guilty can lead to a lot more corruption and injustice.
The answer is that I, and other public defenders, don’t represent criminals. We represent poor people who are facing criminal charges...
If the public actually paid attention to what goes on in the judicial system, they wouldn't ask what kind of person does criminal defense. Instead, they would ask what kind of person becomes a prosecutor.
Many people have lost innocent-until-proven-guilty in their minds.
You have to ask yourself why people have lost the innocent-until-proven-guilty concept. We still teach it in school, so it's not lack of exposure. Is it the media? Since 9/11, the number of police procedurals on TV have skyrocketed. Social Media? Journalism? Personally, I'd be very interested to see how well these concepts are distributed among class, race and gender lines.
In 1993 the Gallup poll found that 64% of the public agreed with the following: "Regardless of what the law says, a defendant in a criminal trial should be required to prove his or her innocence." In the same poll, 70% of the respondents agreed that our judicial system makes it too hard to convict people accused of crimes.
>You have to ask yourself why people have lost the innocent-until-proven-guilty concept. We still teach it in school, so it's not lack of exposure
I would argue they dont actually. While they may say the words they ring hollow in the face of other lessons in schools, lesson around the hero worship of police, and government in general
Students are at the same time told about "innocent until proven guilty" while at the same time filled with all kinds of propaganda about how wonderful and infallible the government is.
From what I have observed and read, people have always been quick to judge and assume guilt on the accused. I really don't think it is a modern invention.
Public defenders are the only thing working against the Matthew Effect[1] when it comes to justice. But, when wealthy corporations or individuals can spend unlimited sums on prosocution or defense, justice is still usually determined by wealth. If you think the tactics of patent trolls are bad...
> Many people have lost innocent-until-proven-guilty in their minds.
It's worse. Sometimes I feel like "innocent-until-proven-guilty" is considered a flaw in the system that should be eradicated to make it easier to catch/punish criminals.
Why isn't it legally mandated that the budgets for the District Attorney's office must be less than or equal to the budget for the Public Defender's?
I'm sure there are valid reasons and what I'm suggesting may be unrealistic, but it sure seems like it'd nearly guarantee that we're upholding the intent of the Constitution if we did that, eh?
That is pretty much guaranteed to produce a poor allocation of funds. Every case requiring public defender resources will also require district attorney resources, but not every case requiring district attorney resources will require anything from a public defender, because a lot of people have their own lawyers.
I think the defenders should have more. Usually when the DA decides to prosecute, they already have "evidence" Most of their work is done, all they have to do is present said evidence and in most cases win. The defenders tho have to work really hard to counter all and any evidence.
e.g get a ticket from the police? that's evidence that you were speeding. you are paying the fine unless you put in effort to prove you were not.
e.g. get arrested for drugs, guns. those will be seized, the DA will look at the evidence and prosecute. your lawyer, will have to do work to show that those are not yours, or that you were legally able to possess those, or some other way. it seems the public defenders do more work and should have the same amount of budget, if not more.
Yeah, I realized that right after I posted. Seems easy enough to account for though, no?
If 70% (or whatever XX% is) of cases are handled by a Public Defender, then you'd simply require that their funding is, at a minimum, 70% of the DA's funding...
It's not just DA's and public defenders, but judges are involved too, for allowing people to be arraigned and tried without adequate representation. The judges should review cases to determine the adequacy of defense before allowing an arraignment, and that review could be conducted in front of a jury if a case goes to trial.
The justice system is deeply flawed but technology can help repair it.
Let me explain.
Legal work can be split up into two buckets – process based work and advisory work.
The advisory work revolves around analysis, comparison and collaboration – distinctly human (for now) tasks.
The bulk of legal work however is process based, which is repetitive, routine, administrative and could actually be done through the use of machine learning and AI. Examples of process-based work are document review and legal research. Document review is when parties to a case sort through and analyze the documents in their possession to determine if they are relevant to the case at hand. Legal research is the process of identifying and retrieving the necessary information lawyers need to support legal decision-making.
If LegalTech was to do the lions share of a public defender's process based legal work, they would be able to focus their advisory work. This would allow a public defender to not only to defend more individuals but most importantly, to provide proper legal help to everyone they are defending.
The inequalities and problems in the justice system could be seriously helped/fixed with better adoption and implementation of technology. The problem is that tech must be embraced not just by individual lawyers and defenders who it would help the most, but also by the decision makers themselves, government agencies/law firms, who have the final say on whether to bring tech into their organizations.
The good news is that there are strides being made towards bringing in tech to augment lawyers capabilities with technology, the bad news is that no speed is fast enough as there are a ton of people who require proper legal representation right now that are missing out.
Legal technology is pretty much totally inapplicable to the work public defenders do. There's pretty much no documents to speak of in those cases, and the technology won't interview your client for you and piece together a detailed timeline of his version of the events. And since their clients are getting charged with the same sorts of crimes over and over, they already have the relevant cases handy in their previous filings.
Perhaps legal technologies in their current forms are not as applicable to the work public defenders do but to say all LegalTech is inapplicable to the work public defenders do is a stretch.
To use your example, you could actually build technology that would help with the interview process and aid in mapping out a detailed timeline of their version of the events.
While repeat offenders may offend in the same pattern the same cannot be said about all offenders.
Public defenders develop their list of handy relevant cases through experience on the job. Tech can help train new hires quicker so that they would be able to jump in and start giving proper legal representation sooner. The system clearly needs more public defenders.
Legal research does play a key component when it comes to the sentencing of offenders. Two offenders can be charged with the same crime however it could have occurred in two entirely different circumstances with the offenders having starkly different backgrounds and motivations. Due to these differences, public defenders should do a deep dive in research in order to provide proper representation rather than relying on only their own personal list of applicable cases. Effective legal research software would go a long way in helping over-worked defenders such as Tina Peng.
I really struggle to think of what sort of legal tech would help you interview a poor client that may not speak english better than a good grasp of Spanish and a pad of paper. These are not complex cases with tons of moving parts. As for legal research--your example of finding factually on-point cases is exactly what existing search algorithms do the worst job of.
Maybe I'm pessimistic. But the gap between promises and actuality in the legal tech field is very wide, at present, so I'm really skeptical when I hear about how it will help solve what is really a political/social problem.
Well, if the public defender doesn't know Spanish using software which helps them to understand their client is a start.
I definitely agree with you on just how bad existing legal research software is at finding factually on-point results. This was part of my motivation to help found ROSS Intelligence, which is building better legal research software with ML and NLP at its core.
And while pessimism and skepticism does help identify the difficulties in implementing different solutions, it's optimism that helps find the opportunities imbedded in the difficulties found :)
Ignoring the problems with public defenders for a moment, technology could help a lot in other areas, such as:
1. Providing access to (supposedly publicly accessible) court records.
2. Automated document preparation for common situations.
3. An expert system to guide people to which documents (re: #2) they need, or if they should seek the assistance of an actual lawyer.
The goal is to allow people to interact with the legal system on their own in simple/common situations, without having to pay for a lawyer or wait for someone to help them pro bono. This would give more options to the poor or otherwise disadvantaged, who often have to simply ignore injustices or make unreasonable concessions because they lack the funds to even talk to a lawyer. This would even help in cases where a lawyer would have to be involved: it might be easier to find pro bono help if you have some of the background work already done.
#1 and #2 should fairly trivial for someone with some legal experience; there are many easy ways to implements database of documents, and numerous template systems already exist.
>> The problem is that tech must be embraced not just by individual lawyers and defenders who it would help the most, but also by the decision makers themselves, government agencies/law firms, who have the final say on whether to bring tech into their organizations.
Totally agree that systemic improvements will require adoption by decision makers and higher ups. A way to get there could be those individuals and lawyers closer to the problem demonstrating measurable improvements, and tech could be a great way to communicate that.
You mentioned strides being made to help augment lawyers capabilities. Can you elaborate on that? I'd love to read more about it.
Agreed. Measurable improvements means data that could not be refuted which is key.
Check out Clio for project management, Beagle for contract review, Ironclad for automating contract creation, Legaler for better lawyer-client communication, and the company I helped found, ROSS Intelligence, which is building an A.I. lawyer to help streamline the legal research process.
There’s a ton of exciting LegalTech projects which help augment lawyers abilities out and in the pipeline. Not all of them will directly help public defenders but some definitely will. What is great is that they will all help improve the legal system as a whole – which is a huge win.
I don't think technology will help things. Until we change our collective opinions about funding public defenders, better legal software will just cause public defenders' budget/headcounts to be reduced so that they are still taking on the same amount of work.
It's like buying a bigger backpack/purse -- until you change your ideas about what is essential to carry all the time, you'll just fill it up with more stuff.
We both agree that the decision makers have to increase funding public defenders and that their numbers should not be reduced with the uptake of technology. This dilution would simply bring us back to square one. It’s about augmenting with technology not replacing.
If done correctly we wouldn’t run into the bigger backpack scenario as the underlying reason for bringing in technology to help fix the justice system would mean ideas have changed and they would know what is essential to carry – to use your analogy.
Kind of Off-Topic, but I emailed Tina immediately upon reading this last week. It really moved me. I'd like to chat with any lawyers working as Public Defenders, pro bono or otherwise, to get a better idea of the day to day challenges they have with managing case load and communicating with clients. Things technoloy could help with. Does anyone know a good place/community/group to join?
I ask because myself, friends, and close family have all had experience with a Public defenders office at some point, the article is spot on about many clients being poor, assumed guilty, and lacking resources. I'm currently helping families navigate the criminal justice system with a company I started , but it's been on my head (and heart) to begin looking at providing resources to PD offices as well, as it's so important that these cases, particular low-level and drug offenses, are handled efficiently. I would love to get a better idea of the day-to-day challenges faced by an active public defender.
Also if anyone is interested in a amazing documentary about the courage and dedication PD's have check out Gideon's Army: http://m.imdb.com/title/tt2179053/. I think it's on Netflix.
> Kind of Off-Topic, but I emailed Tina immediately upon reading this last week. It really moved me. I'd like to chat with any lawyers working as Public Defenders, pro bono or otherwise, to get a better idea of the day to day challenges they have with managing case load and communicating with clients. Things technoloy could help with. Does anyone know a good place/community/group to join?
I mentioned this to a public defender I know, and he'd be interested in dropping you a line if you can give me a contact address. (HN still doesn't seem to have direct messaging...)
I've passed it on. FYI, you have a typo on your front page: "Mail letters d photos right from your phone." Looks like a cool service, hope it works out!
That public defenders have scarce resources to do their job is about as surprising as the fact that people living in poverty don't invest in the stock market.
> My clients, like the millions of other people in the United States who are currently represented by public defenders, deserve better.
The poor are massively underserved, disenfranchised, disrespected, demoralized and more in this country -- no doubt about it.
Unfortunately, the unfair justice system is step 1000 in a chain of events with powerful institutional momentum.
We cannot even begin to address this without addressing economic disparity first.
I agree this issue is part of the larger trend you're talking about, but we absolutely can start to address the imbalance of resource allocation in the criminal justice system without solving the underlying economic disparities, which are a generational challenge. With growing awareness of inequalities throughout this system, articles like this highlight some simple changes we could make to make the system a bit less unfair. In this case, it's simply a few more lawyers and investigators.
Shoring up the system with lawyers and investigators doesn't change the fact that those who can't afford professional representation are getting second-tier justice. Period.
Similarly, raising the minimum wage (for example) will never change the fact that there are vast, lucrative swathes of the economy that are and always will be unavailable to those without lots of spare capital. Period.
They're not getting second-tier justice. Second-tier justice would be fine by them.
They're getting seventh-tier justice. Caseloads that average a single attorney-hour. 98% plea rates. Victimless crimes. Police departments known to fabricate evidence and permitted to persecute, detain, & search with no cause. Years between arrest and trial. Prohibitive bail money. Confiscation of what savings they have to pay a lawyer, on grounds that it's connected to a crime. Tracking of all their communications. A tolerated culture of prison violence. "Stop resisting". Asset forfeiture. Sentence lengths that shock the world.
We don't need to fix all economic inequality to fix these things, because there are other times in our history and other places in the world that have drastically less of these problems, without fixing economic inequality.
The drug war didn't just throw 1% of our population in prison, to satisfy those needs it completely hollowed out due process; You need to have a wealthy family behind you at this point to experience due process as envisioned by the reformers that established it; If you live in the wrong neighborhood and have the wrong color skin no amount of money will pay for it.
End the drug war entirely. End vice prosecutions. Focus on victimful crimes.
Increase the funds PD's get to the level DA's get. A PD's got a lot more to do than a DA, because the DA has police officers behind it feeding it cases. Funding parity is a Schelling Point.
Stop electing DA's, stop electing judges, stop electing sheriffs; "Tough on crime" is the only campaign strategy these people use, and it's implied to mean "Harsher than was the case last year". That outcome ceases to be remotely just after a few years.
Enfranchise felons with voting rights. The reasoning that they're incapable of voting correctly stems directly from racial persecution.
Cameras everywhere.
Training in conflict de-escalation, like the rest of the world's police forces.
Reduce the prison sentences you give out substantially, and drastically increase spending on the crime-avoidance strategies we pilloried as bleeding-heart liberal ideas. Turns out the most strongly supported finding in criminology is that they work a lot better than increased sentencing.
With the savings from all this prison reduction, build prisons that don't inflict trauma on their prisoners, don't require violence to survive in, and most importantly, don't require joining an organized criminal enterprise, a prison gang, to be comfortable in. Gangs destroy what little benefit you get from imprisoning people.
With what's left over, shift resources away from SWAT & drug enforcement, and towards dramatic increases in the size of the detective force. Higher capture rates beat longer sentences at deterring crime by a very large factor.
Rebuild at least parts of the public mental health system that we shut down completely in the 70's.
Specifying a solution is easy; that's a purely technical exercise. The hard problem is figuring out how we get from where we are now (A) to where we want to go (B); that's a political problem.
Admittedly based on anecdotes, the public defenders I have met are highly-educated, committed, creative professionals who typically choose this profession because they see the same structural forces but believe they can make a difference at the individual level. These are not second-tier individuals. If we give them the tools, resources, and support they need to actually do their job then there is no doubt in mind this would be a positive, albeit small, step in the right direction.
I'm sure most public defenders are marvelous public servants.
But are you arguing that those who are forced to use the PD because they can't afford a lawyer are getting the same deal as someone hiring a professional defense team?
It is possible to work on several problems at once. If we're not allowed to even begin improving public defenders until we have completely solved poverty, the poor are going to be waiting for justice for a long, long time.
Slightly OT: I wonder what will happen when marijuna becomes legal across the nation and body cameras are more widely used? Will there be a reduction in overall prison population, will people get better representation due to video evidence, will there be less bad apple cops? All of these may become true to varying degrees. It will be interesting to see how we as a society handle these issues in the future.
I remember an incident where a police car hit the car in front of it in slow speed. Other police officers arrived on the scene and basically told the officer to stay quiet and tried to pin the incident on the woman driving the car ahead. All of this was recorded by the police dashboard camera.
Now, you'd think I am trying to say that dashboard cameras are great and the problem is solved when police officers have to carry body cameras. Well, no. It is not even half the battle. Even if we get a system where we trust a police officer's words the same as that of an accused, the defendant still needs to have legal support that will work hard to get the footage and more importantly a police force that is willing to work with defendants in giving them the evidence the defense needs to undermine the prosecution's case.
The main problem is the blue code of silence where police officers fear speaking out against other police officers for fear of retaliation. I am afraid this is a systemic problem with no easy solution. Who watches the watchers?
> The disturbing video shows Alexandra Torrensvilas, 23, handcuffed in the back of the squad car as the officers get their stories straight on what they are going to say happened.
> Officer Joel Francisco, 36, an 11-year veteran, crashed into the back of Torrensvilas' vehicle at a light on February 17 at midnight. The cop radioed to other officers who converged on the scene and hatched a way to bail Francisco out.
> Officer Dewey Pressley, 42, arrives and questions Torrensvilas, who tells him that she has been drinking. The 21-year veteran officer seizes the opportunity and arrests her for DUI. But the plot thickens from there.
> The cops begin to brainstorm believable excuses for the accident.
> Pressley, a Hollywood police officer for 22 years, and Francisco were fired in January. So were three other Police Department employees who were at the crash scene: Sgt. Andrew Diaz, Community Service Officer Karim Thomas and crime scene technician Andrea Tomassi, none of whom have been charged in the case.
> Neither Pressley nor Francisco mentioned in their written incident reports that Francisco was on his cellphone at the time of the crash. Both mentioned the cat.
> Pressley was acquitted of official misconduct, a felony, but convicted of falsifying records. He was sentenced to 90 days in jail and is free pending appeal.
> Francisco's deal matches the jury decision and the sentence in the Pressley case. Had he been convicted of all charges at trial, Francisco would have faced nearly 30 years in prison.
It seems like Lawyer larence Meltzer represented the accused in this case of State v. Alexandra Torrens-Vilas according to http://www.avvo.com/attorneys/33316-fl-lawrence-meltzer-1293... . Do you imagine the state would volunteer this dash cam tape if it had fallen on a overworked public defendant?
Easy solution: Put me on the jury.
A police officer testifies and right
away I assume he's lying, because he
can get away with it, because he likes
the ego boost, because he has given up
his personal integrity, because of the
"blue code" of whatever, because he
gets his jollies sticking people, whatever.
A police officer has less credibility than
the defendant. Similarly for prosecutor
expert witnesses, police forensics, police
crime lab work, etc.
In front of me, super tough, nearly impossible,
for a public prosecutor with just police
evidence to convict anyone of anything.
The prosecutor would be wise never to
use any evidence that in any way had
anything to do with the police.
Get some other, solid, clearly objective
evidence or the defendant goes free.
And for statistical evidence, I know
some statistics, at an advanced level,
and doubt that there is a single
prosecutor in the country who could
even once put on statistical evidence
that I would find less than just
fraudulent. E.g., lie detectors, finger
prints, and much more -- garbage.
DNA? Not from a crime lab.
As soon as the prosecutor or one of
their witnesses mentions prior
police record of the defendant,
the defendant goes free. Why?
Constitutional protection against
two convictions, or or even two trials,
for the same event. The issue
is what the defendant did as charged
this time -- whatever they did in
the past is just irrelevant.
A second trial for an earlier event
is unconstitutional and an attempt
at what I call fraud and, thus,
no more reason to listen to the
prosecutor. I call it fraud:
On a jury, I get to call fraud
anyway I want, and I don't have
to explain.
Have the defendant locked up
for more than a week without trial?
Violates the constitutional guarantee
of a speedy trial. Defendant
goes free.
Defendant injured while in police
custody, whether from the police,
other people in the jail,
or just a brick falling out of the
sky, violation of the constitutional
guarantee against cruel and
unusual punishment and
taking the freedom of a person
without due process,
and the defendant goes free
and wins a civil case against the
city, etc.
Can't take a person's freedom,
not even for a day, without
taking care of them, e.g.,
having a social worker
inform all their family,
make sure their house is secure
and their kitty cat fed, etc.
Fail to do that, and that
violates the constitutional
guarantee against cruel and
unusual punishment and also
punishment without due process --
defendant goes free.
There is an easy solution -- put me on
the jury.
Then when the defendant goes free and
brings a civil case against the prosecutor
and police, tough for the former defendant
to lose that case. Have the city, whatever,
pay them the $5 million or whatever.
Net, in front of me, the police, prosecutors,
etc. have to clean up their act, scrub
100% clean, at least as in the Constitution,
or the defendants will go free, just as
the founding fathers intended.
The police stopped the car because the
driver failed to use a turn signal?
BS. Likely the police are lying, and in
that case the stop was a case
of unconstitutional "unreasonable search".
That's my view, and on the jury I get
to vote that way for any reason or no
reason and don't have to explain my reason.
A police officer killed an unarmed person?
Deliberate, unprovoked, unexcusable murder.
Life or the chair.
The police have tracked mud all over our
Constitution, and it's long time
since that was way too much.
Defending our Constitution is much
of why we want police.
I appreciate your enthusiasm and upvoted you. However, this is not how most jury members think and assuming the police officers had good legal representation which they seemingly did based on the fact that they were either acquitted of the felony charges or not charged (sorry for repeating)
> Pressley, a Hollywood police officer for 22 years, and Francisco were fired in January. So were three other Police Department employees who were at the crash scene: Sgt. Andrew Diaz, Community Service Officer Karim Thomas and crime scene technician Andrea Tomassi, none of whom have been charged in the case.
It is more likely than not that you'd be excused from jury duty by competent defense lawyers acting on behalf of the ex police officers. It is in their interest to put people of a demographic that is likely to put the words of a police officer (or ex-police officer) above the words of a civilian and even above their own words on video tape.
Solution: Have judges actually get involved. Juries are a cute concept in theory (allowing citizens to check the government and justice process) but it's clear people aren't equipped in general. AFAIK, juries can't interview or request information. And then there's the laughable concept of jury instructions, where the judge ignores human psychology and pretends biases can be overcome by telling people to ignore things.
It's unbelievable that something as basic as viewing the police video requires any "legal" work at all. That kind of thing should just be assumed.
Both the police and the judges are part of the same State apparatus. As such, they will probably not bring any meaningful reductions to the power of the State.
They don't really have a choice. When a state trooper so much as gave a speeding ticket to city police officer in Florida, it caused a state wide unofficial standoff.
In the aftermath, some idiot police officer pulled over a state trooper for no reason and it turned out the trooper was related to the sheriff and got the idiot suspended.
It isn't just isolated incidents of power trips in individuals. It is a culture that sustains itself. Maybe it is just human nature. Apparently, it is completely legal for on duty police officers to not help people in distress from let's say a lunatic trying to stab them. What is to say an officer assigned to protect a judge will not stand back and watch the judge die if the judge had a reputation of being tough on cops?
> It isn't just isolated incidents of power trips in individuals. It is a culture that sustains itself. Maybe it is just human nature.
This behavior would not happen in the absence of a State-granted monopoly on power. Libertarian thinkers propose privatizing the police forces to avoid this very behavior. The customer (taxpayer) would not stand for its police force acting in such a way, and they would go out of business.
> I shouldn't be partisan in this case that affects all of us across party lines but doggamn Justice Scalia! ...
As sad as that situation was, I'm glad they ruled as they did. Can you imagine if the State was required to protect certain individual citizens, no matter what? There would be some sort of security posted at lost of random houses all the time, and we would have to pay for it! And what if two protected individuals got into a fight? Would the officers be required to fight against the other party?
I come down strongly on the side of the right of self-defense: of course the police are not required to protect you! It's simply tragic when the state removes your right to protect yourself while refusing to protect you as well.
That's a bit of a rant but it's a good point. The most effective thing ordinary people can do to fix the system is show up for jury duty when summoned.
You will be filtered out on jury selection. I agree with you, and experienced this directly when I had to face some bogus charges.
The State has the advantage in jury selection, and anti-authoritarian types (which is a good thing) are the first to go and they are extremely good at identifying them.
I'm gonna buck the trend here and say that I think there's a lot of problems with how you're thinking. The main one, in my view, is that it's much the same as the viewpoint that the police can do no wrong and everything they do is excusable because the suspect must have done something wrong or they wouldn't be looking at him anyways. The problems we're dealing with here are complex, and trying to reduce them to either "the police are always lying and covering up laziness and incompetence" or "the police are always acting in good faith" will ineviatably lead to miscarriages of justice.
I think this viewpoint comes from spending your time immersed in media that's so strongly biased that it's essentially propaganda. I'm going to take a wild guess and assume that you mostly get news from the type of sources that get linked on here, which are very quick on the trigger to print stories of alleged police misconduct, even if the evidence is rather shaky. These same sources virtually never print anything documenting the real-live effects of crime on victims, or stories of times when habitual violent offenders are difficult to bring to justice in practice, or descriptions of just how cruel and violent some of the worst offenders can be.
I think that people of a social class that rarely interacts with the legal system in any way, either as victims or suspects, are disturbingly easy to sway to one side or the other with a steady diet of propaganda. Spend a few years selectively listening only to stories of how terrible criminals are and how difficult to bring to justice, and you're ready to throw the book at anyone the police suspect without regard for the facts on the ground. Spend a few years selectively listening only to stories of police misconduct and abuse, and you'll end up kinda like Mr. graycat here.
To you, and anybody else feeling like this, I suggest, as an exercise to expand your mind and thinking, that you set yourself a project for a couple of months or so of deliberately ignoring stories of police misconduct, and perhaps even the sources that print them, and instead read only sources made up of or sympathetic to the police. Perhaps reddit /r/TalesFromTheSquadCar and /r/ProtectAndServe/. There's some other BBSes and news sources out there. Heck, here[1] is a good story from the police perspective of a violent stalker who terrorized his ex-girlfriend and repeatedly told the police every lie in the book in an attempt to get free and have another chance to hurt her.
And another one that's becoming a pet peeve of mine:
> A police officer killed an unarmed person? Deliberate, unprovoked, unexcusable murder. Life or the chair.
What is this, Western movie justice or something? How does whether the suspect was armed have anything to do with whether his death was justified? This is terrible from both sides. A suspect who does not have a weapon is perfectly capable of being a legitimate threat to the life of a police officer. Many unarmed suspects have stolen firearms from police officers and proceeded to kill them with them. Or with vehicles, other weapons, or their bare hands. Many unarmed suspects have been legitimately shot dead while trying to steal firearms from police officers. How would you recommend dealing with them?
On the other hand, we do have the Second Amendment, and it is perfectly legal to carry a firearm with a permit in most of the country. The fact that somebody possesses a gun is not an automatic justification for killing them either. Maybe a little thing called intent is important?
> descriptions of just how cruel and
violent some of the worst offenders can
be.
I agree. I hope and expect that such for
such a criminal a good and honest
conviction will be quite possible in our
legal system. E.g., per capita, we have a
lot of people in jail, too many on silly,
nearly trivial, charges. There certainly
should be enough room in the jails for the
serious criminals.
We need police -- no joke. I can easily
respect the police because of the dangers
they do face and if they are honest,
actually "serve" the public, obey the
Constitution, etc.
But the police abuses are too common:
E.g., apparently quite generally they can
lie in court and get away with it; they
can confiscate cash just because they want
to (there's a consulting company that goes
to police departments and teaches them how
to do that); can hassle people based on
trivialities as in the broken windows
approach; can lock people up for months,
in dangerous circumstances (that some of
the jails are very dangerous places is a
well known, long standing situation and
not an isolated issue), before a trial;
they can strongly coerce guilty pleas as
in plea bargains (commonly public
defenders say that that situation is
wildly out of control and has been quite
generally for decades); they have long
standing practices such a "nickel ride"
where they put someone in a van and drive
around violently causing the person to
bang against the sides of the van, and
much more. Here I'm talking not isolated
instances but wide spread practices.
> How does whether the suspect was armed
have anything to do with whether his death
was justified?
> A suspect who does not have a weapon is
perfectly capable of being a legitimate
threat to the life of a police officer.
Sure. But the police have so many
advantages in force that an unarmed person
is quite generally at a huge disadvantage.
So, when an officer shoots an unarmed
person, especially at, say, 10 feet, it
looks like the officer just took the easy
way out: He very much didn't like the
person or their attitude or behavior so
just gave up and shot him. Sure, each
case needs very careful, objective review.
And, really, likely an officer who has
shot one unarmed person will have to be
very reluctant to do so again for some
years.
Still, there are well documented cases
that are outrageous -- maybe they are too
rare to form a pattern to be addressed,
maybe not.
> Many unarmed suspects have been
legitimately shot dead while trying to
steal firearms from police officers. How
would you recommend dealing with them?
Sure, if there is a real situation like
that, the officer needs to use force. If
the officer does get to shoot, say, not at
point blank range, then the officer should
shoot for a limb and wound enough to win
the fight but not necessarily shoot to
kill.
> On the other hand, we do have the Second
Amendment, and it is perfectly legal to
carry a firearm with a permit in most of
the country. The fact that somebody
possesses a gun is not an automatic
justification for killing them either.
I know, and just by my saying "unarmed" I
know I'm already giving up this
Constitutional right. But the police keep
saying, "I felt threatened." and find that
that is justification enough to shoot to
kill. Well, if the person had a gun, it's
easier to believe the "threatened".
> Sure, if there is a real situation like that, the officer needs to use force. If the officer does get to shoot, say, not at point blank range, then the officer should shoot for a limb and wound enough to win the fight but not necessarily shoot to kill.
Please take a self-defense class. You should never "shoot to wound", you should shoot to stop, always at the center of mass. Shooting to wound, as at a limb, is very difficult and error-prone, and a miss can easily wound bystanders or damage property.
I agree with most of what you said and laud the support of constitutional justice. It would be great if more people on juries actually knew about the proper role of government (insert appropriate rant about public schools / indoctrination).
Some scholars assert that jury duty is actually forced servitude by the state and we would have better outcomes by paying jurors for their time instead of compulsory service.
> prosecutor with just police evidence to convict anyone of anything
Should we increase general surveillance from the State in order to gather non-police evidence? Who else would be doing a criminal investigation to gather proper evidence than the police? Are you including detectives/FBI in "police"?
> Have the defendant locked up for more than a week without trial? Violates the constitutional guarantee of a speedy trial. Defendant goes free.
Did you really mean trial in this case? Often both sides need lots of time to prepare for trial. We had an article on HN a little while back about the bail bonds racket, so there is lots of liberty to be regained in this area.
> The police stopped the car because the driver failed to use a turn signal?
I would push to remove frivolous laws from the books. There are WAY too many criminal penalties in the law. I'm especially disturbed by felony-level penalties imposed by non-elected agencies in the bureaucracy, e.g. felony copyright infringement[1]
Bonus side-note: Government officials receiving fines rather than felony convictions [2]
> A police officer killed an unarmed person? Deliberate, unprovoked, unexcusable murder. Life or the chair.
Just as a non-officer should have the right of self-defense, I wouldn't lay down this sort of absolute statement. There are plenty of scenarios that justify the use of lethal force even if the aggressor is unarmed. We shouldn't advocate revoking the basic right of self-defense to anyone. Is this what you're advocating?
> The police have tracked mud all over our Constitution, and it's long time since that was way too much.
All branches of government at all levels have shredded the Constitution, not just the police.
> The police stopped the car because
the driver failed to use a turn signal?
I was too brief: If the police stop
someone for a turn signal violation,
okay, charge them with the turn signal
violation. But if charge the person with,
say, some more serious crime, then have
to suspect that the turn signal issue
was false and just used as a means
of unconstitutional unreasonable search.
My experience is that a good way to
suffer an unconstitutional search
from, say, a turn signal violation
is just to drive an old car in
a poor neighborhood, or really,
any neighborhood, late at night,
etc. Police just like to stop
and search cars, for any reason
or no reason, and will use any
excuse as a way to do that.
In my case, after the stop,
I'm articulate, calm,
mature, and get away with it.
But still I get stopped due to
the violation of driving with
an old car.
For my
> A police officer killed
an unarmed person? Deliberate,
unprovoked, unexcusable murder.
Life or the chair.
The burden of proof would have to
be strongly on the side of the police
to prove that they had no alternative
to being seriously injured or killed
themselves. For the police to say
"I felt that
my life was threatened" is not nearly
enough.
In such a confrontation with an unarmed
person, the police have enormous advantages
in force -- radios, backup, cameras to
identify the person in case they run,
clubs, guns, bullet
proof vests, etc. For a person to
die looks really bad.
We've had at least one recent case
where the person was running away,
was over 10 feet away, and the police
shot them in the back and killed them
just to keep them from running away.
At present, apparently the real standard
is that a person has to obey every
command of an officer, be pleasant,
object to nothing, defend themselves
against nothing, hand over money
and personal belongings that
they may never get back, not make
a recording, not call 911, permit any
search, accept painful restraints,
not try to run away, be verbally
insulted, be sexually molested,
etc. or the officer can just shoot
and kill the person and get away with it.
One response I have would be what
I would do on jury duty. But, right,
likely a public prosecutor would never
let me on a jury.
Another alternative is to have my
startup work, get rich, be careful,
and set up some funding for
some essentially sting operations
to catch police misbehaving, where
there was overwhelming evidence from
hidden cameras and microphones,
long distance cameras, etc. that
the police did something wrong.
Then have the legal resources
to prosecute the police. Use
such actions as examples, and then
try to get some better behavior
from the police. E.g., civil
forfeiture, that is, the crime
of carrying too much cash,
that is, legalized highway robbery.
I can't feel guilty for sticking up
for our Constitution.
Absolutely. We need a serious amount of education on how to interact with the police, to know when the encounter is over ("Am I free to go?"), to know exactly how much you are required to say and not say a word more, etc. From what I've seen, the police prey upon people's ignorance in order to score more convictions, tickets, and seizures.
>officer can just shoot and kill the person and get away with it.
Unfortunately this does happen, but in a few recent cases the officer has been arrested and charged with murder.
> E.g., civil forfeiture, that is, the crime of carrying too much cash, that is, legalized highway robbery.
I'm in the Bitcoin industry, so this rings true to me ;-)
Aside from just body cameras, we need to establish a public oversight system of police conduct review. One that is not a part of the traditional legal system and one that has authority to actually punish police and lawyers and judges for misconduct.
The legal system in this regard is utterly failing.
What will happen is prisons will be full of people convicted of other crimes.
In some sense, prison capacity limits prison population (notwithstanding unconstitutional overcrowding, which has its own limit). If the prisons were emptied of marijuana convictions, then that would free up space for other convictions.
So maybe the way to reduce the prison population is to close some prisons. Not everyone convicted needs to be in prison, and not everyone caught needs to be prosecuted.
The last (and so far only) time I was called for jury duty, the judge's instructions were very explicit that the word of a police officer was to be given no special weight compared to other witnesses.
Jurors were questioned about this during the voir dire, and several people were dismissed because of an admitted bias in favor of police testimony.
Obviously, this is a sample size of one and no generalizations can be drawn, but it does stand as a counterexample.
Last time I served on a jury, the judge gave the same instruction regarding police as witnesses. Nevertheless, the defendant had a heavy accent, and did not testify in her defense. The prosecution presented their entire case through the testimony of one policeman, who was shown to be wildly exaggerating to the point of an outright lie in a key element of his testimony. He never recanted or even corrected his testimony. Yet the first vote was massively in favor of convicting. Scary!
I'd give the word of a police officer
"special weight" -- assume he was
bitterly, hatefully, fraudulently lying
through his teeth, even if just for the
fun of it.
I was on a criminal jury trial in Manhattan in May. The guy was being charged with multiple assault and resisting arrest charges against cops. The incident happened a couple years ago. It was basically the cops' word vs. the defendant. You could tell both sides were not telling the whole truth. It's a much longer story, but in the end we found him not guilty for all those charges. Luckily I had a rational, sane jury that no matter what you think it was clear there wasn't proof beyond a reasonable doubt.
Sometimes I wonder what would have happened if you don't have that kind of jury..
But if we didn't convict the innocent, public prosecutors couldn't exhort the public into voting them back into office on the basis of an absurdly high conviction rate!
Why is a conviction rate a key performance indicator? I thought the western justice system existed mainly to inhibit crime, and if conviction rates are high, the system is not doing a very good job at inhibiting it.
I live in a western country (Finland) where crime inhibition seems still to be the main purpose of the justice system - although there is constant discussion about "getting tougher on crime".
A close friend of mine is a public defender, and gave me some disturbing stats.
According to the American Bar Association, it is unethical for a defense lawyer to take more than 400 cases a year; 350 if dealing with juvenile cases; three if they're capital (death-penalty) cases. Every PD my friend knows regularly goes double those limits, because they have no choice and the states aren't interested in upholding the ABA's limits.
> When people ask how to push back against police misconduct, how to decrease the costs of mass incarceration and how to ensure fairer treatment of our nation’s most disenfranchised citizens, part of the answer lies in fully funding public defender’s offices and enabling us to represent our clients in a meaningful manner.
If the justice system is a funnel, these public defenders are at the very bottom. Adequate funding may relieve pressure, but the long term solution is a better filter at the very top. One solution: https://news.ycombinator.com/item?id=9802861
"At that point, he realized that the client had never been served to appear for the court date on which he allegedly jumped bail."
Why is it the public defender had to notice that? Why didn't someone else notice, why was he even arrested in the first place? There are more problems with the system...
> Our office represents 85 percent of the people charged with crimes in Orleans Parish but has an annual budget about a third the size of the district attorney’s.
Clearly the state has weighted things for maximum convictions.
Shouldn't public defenders have exactly the same budget as prosecutors?
Ms. Peng's client is most certainly not the State. As a public defense attorney, her clients truly are the accused unable to retain private legal services - the indigent. As Ms. Peng argues, the service provided by public defenders is a constitutional right, not to mention one of the fundamental elements in a system designed to provide for adequate and universal representation. That the State issues her salary is a direct result of the constitutionality of the services public defense offices provide, and is the mandated prerogative of the State in due compliance with the Constitution. Ms. Peng has granted us an insider view of what is becoming an increasingly slippery slope. We cannot eschew the rightful defense of any group, no matter how "marginalized," and presume in the same breath that those criteria will never broaden or change. Nor can we expect legal disenfranchisement, and an inevitable increase in unjust incarceration, to resolve anything.
I'm trying to outline the problem that the State is not interested in funding those public defense offices. They are doing the absolute minimum required by the Constitution. In contrast, look how well-funded and heavily-equipped are the police and other law enforcement agencies.
That's the most sad part of this article to me. Many people have lost innocent-until-proven-guilty in their minds. Tina has a good response in the article:
> The answer is that I, and other public defenders, don’t represent criminals. We represent poor people who are facing criminal charges — charges on which they are presumed innocent until proven guilty in court. We represent members of our communities who have a right to real and meaningful legal representation, even if they are poor.