February 27, 2015

Grand Jury Reform in New York?

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Jonathan Lippman, Chief Judge of New York's Court of Appeals, got nationwide press with his recent address on the state of New York's judiciary. He proposed, in that address, to increase the role of the judge in the grand jury process, at least in cases where civilians have been killed by police officers.

The issue of homicide by police officers has been on a lot of minds since the killings, last year, of Michael Brown in Ferguson, Missouri, and Eric Garner, here in New York. In both cases, grand juries failed to indict the officers involved and - given the opinion of a former Chief Judge that a competent district attorney could get a grand jury to "indict a ham sandwich" - it was widely assumed that prosecutors had rigged the proceedings. (For instance, a British publication, The Independent, published an article under the headline "A grand jury could 'indict a ham sandwich', but apparently not a white police officer.")

To quote Judge Lippman (at page 2 of the State of the Judiciary address):

Of immediate concern are the perceptions of some that prosecutors' offices, which work so closely with the police as they must and should, are unable to objectively present to the grand jury cases arising out of police-civilian encounters.

To counter this 'perception', Judge Lippman recommended that in cases involving police officers accused of felony assault or homicide against a civilian,

a judge be physically present in the grand jury room to preside over the matter. The judge would be present to provide legal rulings, ask questions of witnesses, decide along with the grand jurors whether additional witnesses should be called to testify, preclude inadmissible evidence or improper questions, and provide final legal instructions before the grand jury deliberates.

In order that justice not only be done, but 'be seen to be done', the Chief Judge also proposed making certain grand jury evidence public after the proceeding is concluded.

The state's prosecutors seem to have been stung by Judge Lippman's remarks. A Times Union article quotes Robert M. Carney, the District Attorney of Schenectady County, as saying that "I haven't talked to any of my colleagues, but I can't imagine any of them are going to look at that say that it is a good idea" [sic].

According to Mr. Carney, "it would violate the separation of powers in the legal system to have judges so involved in the grand jury process that they order witnesses." He points out that "they're not prosecutors."

This is a very interesting point of view, but represents a fundamental misconception of the role of the grand jury - and of the role the prosecutor should have in it.

Continue reading "Grand Jury Reform in New York?" »

February 6, 2015

Criminalizing 'Sneaky' in New York

The 'Dread Pirate Roberts' - Ross Ulbricht, to you and me and the FBI - has been convicted of several crimes in connection with Silk Road, the 'black market' website described in the video above. We don't intend to get too far into that case, but a statement by the defense, as quoted in the Daily Beast got our attention: "the government equates the desire for privacy... with criminal intent."

New York's Court of Appeals would seem to agree with the government, there. The court got a good deal of ink last year when, in People v. Golb, it struck down as unconstitutionally vague and overbroad a law that forbade communicating with someone "in a manner likely to cause annoyance or alarm." Among journalists, the takeaway message seemed to be that a great blow had been struck for liberty and free speech.The New York Times, for instance, published a piece under the title 'Top Court Champions Freedom to Annoy'. And New York Magazine - with more feeling than accuracy - published an article about the case, entitled 'Annoying Someone Is No Longer a Felony in New York'. (Aggravated harassment in the second degree, as defined in subdivision 1 of Penal Law Section 240.30 was a misdemeanor, not a felony).

Where the court closes one door, however, it often opens another. In upholding the defendant's convictions for criminal impersonation and forgery, the Court of Appeals in Golb made it clear to prosecutors just how easy it can be to charge someone with those crimes.

And it's all too easy, as noted in Judge Lippmann's thoughtful dissent from this part of the majority's decision. It goes so far, in fact, that it's arguably an unconstitutional attack on free speech.

Continue reading "Criminalizing 'Sneaky' in New York" »

December 8, 2014

Reprieves, Commutations and Pardons in New York

Caesar Decides.jpgAs sources all over the country have been reporting, actor Mark Wahlberg is seeking a pardon for a crime committed in his youth. Wahlberg was convicted in (and seeks clemency from) the Commonwealth of Massachusetts, but the coverage piqued our interest, and we thought we'd take a brief look this week at pardons and the whole issue of executive clemency and then see how it works in New York.

Executive clemency has a long history, as noted in a very interesting essay in the London Review of Books. Prior to the American revolution, the British Crown had the power to grant reprieves, commutations and pardons, and after the revolution these powers were appropriated by US jurisdictions (and the federal government). According to Ex Parte Wells, a venerable Supreme Court case discussed in the essay, this was because

[w]ithout such a power of clemency, to be exercised by some department or functionary of a government, it would be most imperfect and deficient in its political morality, and in that attribute of Deity whose judgments are always tempered with mercy.

Here in New York, the 'functionary' who exercises the power of clemency is the governor. Our state constitution, in Article IV, Section 4, says that

[t]he governor shall have the power to grant reprieves, commutations and pardons after conviction, for all offenses except treason and cases of impeachment, upon such conditions and with such restrictions and limitations, as he or she may think proper, subject to such regulations as may be provided by law relative to the manner of applying for pardons.

The governor is required by Executive Law Section 17 to report any grant of clemency to the legislature. But Section 15 of the Executive Law just echoes the language of the constitution, so in practice the governor is restricted and limited only by what he or she "may think proper."

What the executive branch thinks proper is, in turn, set out in a small packet published by the Department of Corrections and Community Supervision. It's called 'Information Concerning Executive Clemency', and it includes the guidelines to be used by officials reviewing applications for a pardon or for commutation of a sentence.

An applicant for a pardon has to show a compelling need for a pardon and, unless the grounds for the request include actual innocence, had better be able to point to "a substantial period of good citizenship." The minimum period of incarceration might be reduced in response to a request for the commutation of an inmate's sentence. The inmate must show very exceptional circumstances, by clear and convincing evidence. The governor will not get involved in any area that is the responsibility of the parole board.

The procedure for requesting clemency seems very simple. Per the guidelines,

[a] formal application for executive clemency is not required; nor is an applicant required to retain an attorney. A written request for executive clemency consideration will suffice to cause a review and compilation of necessary information to determine eligibility, need for further investigation, scope of any investigation and eventual decision.

However, the applicant should not hold his or her breath while awaiting a favorable decision. The New York Times indicates that, as of January of this year, Governor Cuomo had granted a grand total of three pardons. Adding this number to figures provided by the New York State Defenders Association tor the years 1995 to 2010, we see that less than 75 people have obtained clemency in the last generation.

December 1, 2014

More Habeas Corpus - Woodfox v. Cain

Swamp at Night.jpeg

"What makes you think she's a witch?"
"She turned me into a newt!"
"A newt?"
"I got better."
"Burn her anyway!"

-Monty Python and the Holy Grail

Our last entry was about the writ of habeas corpus, used in the US primarily to get federal review of state actions, and the "narrowing of the federal courthouse door" caused by AEDPA (the Antiterrorism and Effective Death Penalty Act of 1996).

Specifically, we looked at Lopez v. Smith, a US Supreme Court decision that came down in October of this year. Mr. Smith had complained that a state court ruling in his case violated the US Constitution. The US Court of Appeals for the Ninth Circuit agreed with Mr. Smith, but based its decision on Ninth Circuit case law. It thereby failed, in the opinion of the Supreme Court, to show that the state action violated 28 USC 2254(d)(1) (an AEDPA provision) by flouting "clearly established Federal law, as determined by the Supreme Court . . ."

This week, we thought we'd look at an even more recent appellate opinion suggesting that the doorway - though narrowed - hasn't been walled up altogether. The case is Woodfox v. Cain. That's Albert Woodfox, an inmate of the Louisiana State Penitentiary, against Burl Cain, its warden (you'll recall that a habeas corpus proceeding is very primal; you're protesting your illegal imprisonment).

The US Court of Appeals for the Fifth Circuit decided the case on November 20th, focusing on an AEDPA provision that was little more than a footnote in Lopez v. Smith: 28 USC 2254(d)(2). This allows a habeas petition to be granted where a state court decision "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."

Woodfox involved an alleged constitutional infirmity in the Louisiana grand jury system. As noted in a prior Supreme Court case, (Campbell v. Louisiana, cited in Woodfox) grand jury foremen in Louisiana were, in essence, extra members of the grand jury, personally chosen by the judge. African Americans were statistically under-represented when it came to being chosen as grand jury foremen. The US district court had ruled that

the state court was not entitled to AEDPA deference; that Woodfox had successfully made out a prima facie case of discrimination in the selection of the grand jury foreperson; and that the State of Louisiana, acting through Respondent- Appellant Warden Burl Cain, had failed to rebut the prima facie case.

Continue reading "More Habeas Corpus - Woodfox v. Cain" »

November 21, 2014

From the US Supreme Court: Habeas No Corpus Today

Thumbs Down.jpeg"We have found a witch! (A witch! a witch!) Burn her burn her!"

Monty Python and the Holy Grail

The Writ of Habeas Corpus is a way to challenge illegal imprisonment. In fact, it's been the primary way to do that since King John signed the Magna Carta in 1215.

It's such an established part of our jurisprudence that the US Constitution doesn't even pretend to grant the right. All the Constitution says, (in Article I, Section 9), is that habeas corpus can't be suspended except "in cases of rebellion or invasion." In other words, habeas corpus is a given.

But there's always a catch, and the catch here is that the Constitution says nothing about imposing crippling limitations on the vehicles through which habeas corpus petitions must be brought.

By way of illustration, we thought we'd look at a recent per curiam decision of the US Supreme Court denying federal habeas corpus relief to a California inmate.

In Raul Lopez, Warden v. Marvin Vernis Smith, the Supreme Court overruled a federal district court and the Ninth Circuit Court of Appeals, which had granted habeas corpus relief to the inmate, Marvin Vernis Smith. (the term 'per curiam', by the way, is Latin for 'by the court'; it implies that the court is speaking with one voice)

Mr. Smith had been convicted, after a jury trial in a California court, of first degree murder. He was given a sentence of 25 years to life. All of Smith's state court appeals had been denied (an appellate court first overturned the conviction, then affirmed it - having been ordered by the California Supreme Court to think again).

So Mr. Smith sought habeas corpus relief in the federal courts. This is a time-honored procedure, as we've said: once your state court appeals run out, you can apply to the federal courts. To succeed in a federal court, however, you have to show that the state courts have denied you a right guaranteed under the US Constitution. Here, Mr. Smith argued that his right to due process and his sixth-amendment right "to be informed of the nature and cause of the accusation" had been violated.

Continue reading "From the US Supreme Court: Habeas No Corpus Today" »

November 10, 2014

YouTube Oversight in Saratoga County

As you've probably heard, a Saratoga County sheriff's deputy has now resigned and faces charges in the Town of Halfmoon, after a viral YouTube video showed him apparently going ape on a couple of men last week. WNYT reported the resignation and the charges - official misconduct and harassment - today.

If Sergeant Shawn Glans is in fact the deputy in the video, and if he really did and said the things depicted in the video, it's an excellent thing that he's gone.

That's just one small bright spot, though, in a bleak landscape. The revelations of this weekend tell us some very discouraging things.

First of all, as noted in a press release issued by the Saratoga County Sheriff over the weekend, Glans was disciplined because of "a video posted online which appeared to show an inappropriate interaction [with] a civilian during a roadside interview. " In other words, the sheriff is saying he found out what his own deputy was up to from YouTube. Not from the deputy himself or the two other deputies who, according to WNYT, witnessed his behavior. Those other deputies haven't resigned, as far as we know.

Furthermore, the video and the comments Glans has made since its release raise concerns about the way the Sheriff's Department may have been doing things during the many years this man was a member. In the video, the deputy uses obscene, abusive, and threatening language in addressing two men in a parking lot. He does something to one of them out of camera shot that sounds a lot like a slap. And why? What had happened to warrant - even in the deputy's mind - this kind of behavior? Well, it looks like one of the men politely insisted that the officer observe the constitution - in simple terms, the man refused to consent to a search of his vehicle.

Continue reading "YouTube Oversight in Saratoga County" »

October 31, 2014

No Trick/No Treat - Cell Phone Crack-Down in New York

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New York's Legislature has been busy this year. So, as trick-or-treaters make last-minute adjustments to their costumes (and November, with a courtly gesture, murmurs "enter freely and of your own will"), younger drivers, in particular, may notice the cold wind of regulation whipping round their ankles.

As of Saturday, November 1, 2014, at 12:00 AM (the witching hour), penalties for drivers caught talking on a cell phone or texting will be increased. The potential fines for everybody will go up by $50: the maximum fine for a first offense will be $200. The number of points for everybody (five - we repeat - five!) will remain the same.

Younger drivers - 'probationary and junior drivers with a Class DJ or MJ driver license or learner permit' face greatly enhanced administrative sanctions under the new scheme. Specifically, for those drivers, a first offense involving cell phone use or texting while driving will result in an automatic 120-day suspension.

And if one of those drivers should get convicted again within six months of the end of such a suspension, his or her license will be revoked for at least a year.

Note that we say 'at least' a year. If your license is 'suspended' it's essentially asleep. A suspension ends automatically. In this case, it ends when the 120 days have passed and a suspension-lift fee has been paid. A revocation doesn't end automatically. Once your license is revoked, you have no license. You must reapply for a license - and, of course, you might not get it. We're linking here to a DMV webpage noting the enhanced penalties we've been discussing.

Laws governing the use of electronic gadgets while driving have been tightening up for some time. In 2011, as we've had occasion to mention, the use of hand-held devices became a two-point moving violation. In 2013, we noted in our Vehicle and Traffic Round Up, two points became the current five, and younger drivers were to receive an automatic suspension.

Distracted driving is, of course, a serious problem, and it seems to be getting worse as time goes on. A federal informational website, distraction.gov, states that in 2012 "an estimated 421,000 people were injured in motor vehicle crashes involving a distracted driver, . . . a nine percent increase from the estimated 387,000 people injured in 2011." That site also suggests that - although there are many ways to be distracted - "because text messaging requires visual, manual, and cognitive attention from the driver, it is by far the most alarming distraction."

In making things yet worse for the digitally-minded driver, New York isn't alone; this is a nationwide trend. According to the Center for Disease Control's website "[m]any states are enacting laws--such as banning texting while driving, or using graduated driver licensing systems for teen drivers--to help raise awareness about the dangers of distracted driving and to keep it from occurring." However, as the CDC also points out, "the effectiveness of cell phone and texting laws on decreasing distracted driving-related crashes requires further study."

Anyway, we wish you a happy Halloween. But don't go as a texting teen driver.

October 2, 2014

Making Sure Justice (or at least the Defense) is Blind

Blind Justice Circle.jpgImage: Thomas Nast [Public domain], via Wikimedia Commons

Defense attorneys know the value of confidentiality and discretion - and the damage that can be done when information isn't kept confidential and discretion isn't exercised. It's a constant irritation, for instance, that newspapers announce our clients' arrests to the world, when our clients have been convicted of nothing - and in many cases, will be convicted of nothing. The papers sometimes kindly publish a defendant's address, as well, in case wing nuts don't know how to find the defendant.

In other English-speaking countries, by the way - countries with justice systems equivalent to ours, and with a free press - things are handled differently. In New Zealand, as pointed out by communitylaw.org.nz, a judge can order the defendant's name suppressed in certain cases, including those where publishing the name may "cause extreme hardship to the person charged with, or convicted of, or acquitted of the offence, or any person connected with that person."

Anyway, the bottom line here is that if you want to know what your client might have done - what your client's charged with now - all you've got to do is read the papers. Try to find out what he or she's has done (or at least been convicted of), and that can be a different story, in upstate New York.

Courts treat criminal histories (more commonly referred to as 'rap sheets') as highly confidential. This is as it should be. Rap sheets, which are prepared by the state's Division of Criminal Justice Services, have
all kinds of information (including social security numbers, etc.) that shouldn't be given out to the general public.

But rap sheets do contain information that a defense attorney's just got to have - like the client's criminal history.

Yet certain (though by no means all) courts in our part of the state seem to feel that - although the defense attorney might be permitted under limited circumstances to have a peep at this important information, an actual copy of the document is out of the question.

The law - and the court system as a whole - disagree. We'd like to thank Al O'Connor and the New York State Defenders Association for providing us with a copy of a memorandum issued more than 20 years ago by New York State's Office of Court Administration. This memorandum reminded judges that under the Criminal Procedure Law "the defense must receive copies of the rap sheet when the court receives copies."

This same attitude - that certain information is just too hot for the defense to handle - can sometimes be found when it comes to the pre sentence investigation report prepared by county probation departments. This document is of vital importance, as it can determine - literally - your client's fate. Yet once again, certain (though by no means all) courts in our area tend to feel that although a defense attorney might, under the watchful eye of a clerk, have a look at the report, the attorney can't be trusted with a copy.

And, again, that's not what the law says. Section 390.50 of the Criminal Procedure Law requires that the pre sentence report be made available to the defense attorney (or to the defendant, if there's no defense attorney involved) for inspection and copying, at least a day before sentencing.

We are now done complaining, for the moment.

August 19, 2014

Ignition Interlock Do's and Don'ts - and Don'ts

Alice_05a-240 Wide.jpgImage by Sir John Tenniel ("Alice's Adventures in Wonderland" (1865)) [Public domain], via Wikimedia Commons

Since 2009, New York has required drivers convicted of driving while intoxicated to install ignition interlock devices (IIDs) in any vehicle they either own or operate. Per Section 1193(1)(b)(ii) of the Vehicle and Traffic Law, the minimum period of this restriction will be 6 months, and it can be longer.

You'll have to submit an affidavit at sentencing. In this affidavit you'll either provide detailed information about any vehicle you own, or certify that you have no vehicle. The court will give you ten days from sentencing to get an IID installed in any applicable vehicle, but from the moment you're convicted you must have one in any vehicle you drive. For this reason it's recommended that you get one installed before sentencing.

There's another reason to get it installed early, if you decide that it's inevitable. You get credit for this period even if you haven't been sentenced yet. (Before you do it, however, be warned: the wording of the statute suggests that - once you get it installed - "the period of interlock restriction" has commenced, whether you've been sentenced or not.)

Complying with the interlock requirement costs money, of course, although financial assistance in is available for low-income drivers. A 'financial disclosure report' is available through New York's Division of Criminal Justice Services. Drivers requesting assistance should fill it out and submit it to the court prior to installation, if they're getting it installed early, and in any case prior to sentencing.

Once you have your IID installed, all you have to do is figure out how to live with it. And this may or may not be a problem for you, if our clients' experience is anything to go by. Some of them have had no issues at all. Others have found the devices a chronic headache.

Continue reading "Ignition Interlock Do's and Don'ts - and Don'ts" »

July 31, 2014

DUI/DWI In New York - Relicensing Litigation

Stop Castle 2.jpgImage: LeCours Chertok & Yates, LLP, (incorporating an image entitled "Amberly Castle" by Nathaniel Buck, Samuel Buck (British Museum) [Public domain], via Wikimedia Commons)

As we've noted before, New York's Department of Motor Vehicles has 'gotten tough' on drivers with a history of alcohol-related incidents. New rules were introduced as an 'emergency' measure in 2012, and drivers with three or more alcohol-related incidents on their driving records found their applications to be relicensed denied, in some cases permanently. Thanks to these rules, New York may be the toughest state in the union when it comes to relicensing after an alcohol-related conviction.

The new regulations were challenged, of course. Article 78 of New York's Civil Procedure Law and Rules provides a vehicle for testing the legality of administrative actions, and aggrieved (former) motorists have taken full advantage of it. At least five of these Article 78 petitions have made it through the system, from initial filing to (predictable) denial: Brown v. New York State Dept. of Motor Vehicles in Nassau County; Gaebel v. New York State Dept. of Motor Vehicles in Sullivan County; Carney v. New York State Dept. of Motor Vehicles, in Rensselaer County; and Acevedo v. New York State Department of Motor Vehicles and Allen v. NYS Dept of Motor Vehicles, both filed in Albany County.

Petitioners have raised many objections to the new regime, some of them reflecting the petitioners' desperate circumstances. Messrs. Gaebel and Carney quite frankly asserted - among other things - their 'hardship'; Mr. Carney, for instance, claimed in Rensselaer County Supreme Court that the "permanent loss of his license is disproportionate to the offense" for which he lost it, and that judicial relief was "necessary to ameliorate the harsh imposition of this sanction by DMV." He also argued that DMV's rules violated the equal protection clause of the US Constitution because a lifetime look back necessarily discriminated against older drivers; they'd had more time to mess up. Mr. Gaebel pointed out that a

back injury requires him to attend doctors' appointments and there is no public transportation to permit him to get to these appointments on his own. At present, the Petitioner indicates that he is not even eligible to get a conditional license, which would permit him to drive to his medical appointments.

Acevedo v. New York State Dept. of Motor Vehicles is representative of these cases. (You can link to the decision, above.) Mr. Acevedo's petition was filed in the Supreme Court, Albany County, in April of 2013. A decision was handed down in February of this year.

The petitioner, as summarized by the court on page 3 of its (printed) decision, had attacked on many fronts:

[He] maintains that the regulations conflict with the provisions of VTL §§ 510, 1193, and 1198 (among others). He asserts that they violate the Separation of Powers doctrine; and that the underlying enabling legislation is unconstitutional, as an overly broad delegation of legislative authority. In the alternative, he contends that the Commissioner [of Motor Vehicles] exceeded her authority as delegated by the legislature. The petitioner also alleges that the new regulations violate his right to due process; that they constitute an illegal Ex Post Facto law; that they are arbitrary and capricious; and that [DMV's] delay in processing petitioner's application was illegal and improper.

Unfortunately, the court's response to these arguments amounts to a very articulate, carefully reasoned - and 40-page-long - bronx cheer. The regulations are not an 'illegal Ex Post Facto law', per the court. Nor do they violate drivers' right to due process. DMV hasn't exceeded its authority as delegated by the legislature - and the legislature did, indeed, have the power to delegate that authority, etc.

This is not necessarily the final word, in any of these cases: there are two levels of appellate court in New York that can - and probably will - consider these issues. There's also, potentially, a federal court challenge.

But for now, the regulations stand, and for drivers subject to these regulations, the results can be tragic. To be fair, though, the rules only apply to drivers with three or more lifetime alcohol-related incidents, and that means you do have to meet DMV more than half way. You get not one, but two, bites at the apple before the apple bites you back.

July 13, 2014

Intrusions - Warranted and Unwarranted - to Order

You might be asking, if you saw the news segment above, "did I really hear that?" Could the Commonwealth of Virginia really have planned to take pictures of a minor's engorged member (having first chemically induced the engorgement)? You might also ask, if you're a New Yorker, "could anything like that happen here?"

As for the Virginia incident, the situation does seem a little murky, but the lawyer and the guardian ad litem for the minor clearly say it happened. The Washington Post has said so, as well. The Manassas (Virginia) City Police Department, the agency investigating the minor's alleged crime (which supposedly involved 'sexting'), did issue a press release denying the story. But after the uproar caused by the original story, the Washington Post published a Follow-up article quoting a police official as saying "We are not going to pursue it" and further stating that the police department intended to let the warrant expire. That surely would indicate that the original story was true.

It's not surprising that the police would ultimately get cold feet in this affair, quite apart from the unpleasant publicity. Given that the accused in the Virginia case is only 17, the creation of the proposed photo - as noted by the guardian ad litem in the first Post piece - would actually appear to constitute the production of child pornography. For instance, under Virginia law 'child pornography' is defined as "sexually explicit visual material which utilizes or has as a subject an identifiable minor." 'Sexually explicit visual material', in turn, includes any "visual representation which depicts . . . sexual excitement" in a minor. Add the fact that the whole point of the police exercise proposed here was to 'depict sexual excitement' in the minor defendant, et voilà...

However, it won't astonish anyone familiar with Virginia that the police set out to make the picture in the first place. The term 'trans-vaginal ultrasound' is still closely associated with the Commonwealth; and Just last year, Virginia made a desperate attempt - ultimately unsuccessful - to revive its law forbidding 'crimes against nature'. (A 'crime against nature' would include most sex acts between two persons that cannot lead to pregnancy).

There's no real reason why the same scenario couldn't arise in New York, though. In fact, something somewhat similar has already happened here, as we'll discuss below.

Continue reading "Intrusions - Warranted and Unwarranted - to Order" »

July 6, 2014

The Cop and the King of the Cannibal Isles

Cakobau.jpgCakobau (1815 - 1883). Photo by Francis H. Dufty (1846-1910) (National Library of Australia) [Public domain], via Wikimedia Commons

"Woman pudding and baby sauce, Little boy pie for second course, He'd swallow them all without any remorse, The King of the Cannibal Islands."

Anon. 19th Century Song

People respond to the utterly alien in various ways. Natives of the south seas, for instance - and their supposed eating habits - have been a stock cartoon theme for generations. 'The King of the Cannibal Islands' is a 19th century song - decidedly 'un-P.C' - that was taught to New York school children as recently as the 1960s. It's a very silly piece, as you'll note from the lyrics above, and from more than one rowdy rendition on YouTube.

What was the source of all this material? In the 18th and 19th centuries Europeans and North Americans came in contact with peoples, including certain Pacific Islanders, who practiced cannibalism: peoples who, for ritual and/or terroristic purposes, sometimes killed and ate other human beings. That children's song, for instance, might or might not refer (obliquely, per a Popular Science article from 1895) to an actual Fijian paramount chief named 'Thakombau' or, more properly, Seru Epenisa Cakobau. Cakobau converted to christianity and worked to end cannibalism in Fiji, and so naturally became known as the 'cannibal king'.

Clearly, people can find a real cannibal funny, if the cannibal lives far enough away, or is long dead. But the key to feeling comfortable with someone - if that someone might feel comfortable with the idea of eating you - is distance. We don't necessarily laugh at the utterly alien when we find it next door - and even a theoretical cannibal 'creeps us right out', if he might be cruising our streets.

Continue reading "The Cop and the King of the Cannibal Isles" »

June 26, 2014

9-Zip! Cell Phone Searches Require Warrants (Unless...)

Cell Phone and Hand.jpegImage: LeCours Chertok & Yates, LLP
The US Supreme Court has decided that the search of a cell phone - as a general rule - can't be conducted without a warrant. The decision, Riley v. California, has had a lot of media attention, including coverage in the New York Times and the Guardian. The Guardian article provides a link to the opinion, but for convenience, we include a direct link to it here.

All nine justices concurred in the ruling, and eight of them joined in the opinion by Chief Justice Roberts. 'The Supreme Court Justices Have Cellphones, Too', as the Times pointed out this morning (this was the title of an op-ed piece by commentator Linda Greenhouse).

Concluding that "privacy comes at a cost," the Court concedes at page 25 of the opinion that "our decision today will have an impact on the ability of law enforcement to combat crime." Cell phones are excellent ponds to fish in, after all. Officers may find evidence that will help them convict you of the offense for which you've been arrested. They may find evidence of other offenses they might not otherwise have known about.

And, of course, they may also find things that will just humiliate you if they're made public. Officers may or may not have been exploiting this power for private ends routinely. But the potential is always there, as shown by a case reported in the Houston Chronicle some years ago. While searching a young woman's cell phone 'incident to arrest', an officer found that she had some racy photos of herself stored there. The officer downloaded them, and showed them to his buddies and co-workers.

You can see why, as was evident in another Times piece from April, there was a lot of nervousness as to how Riley would come out.

Continue reading "9-Zip! Cell Phone Searches Require Warrants (Unless...)" »

June 18, 2014

History of Crime

Hogarth.jpegImage: William Hogarth [Public domain], via Wikimedia Commons

When you have a minute, take a look at "Computing Crime and Punishment" by Sandra Blakeslee in the New York Times. (You'll find it well worth your while, if only for the 1871 mugshot that accompanies the piece.) The article is a discussion of research made possible by the online publication of The proceedings of the Old Bailey, 1674-1913. Named for the street it's located on ('Old Bailey') the Old Bailey is the central criminal court in London. The courthouse was built in 1673 and its staff has been keeping meticulous records ever since.

Computational analysis of those records, according to Ms. Blakeslee, indicates a change over time in the way the British criminal justice system has treated different sorts of crime. The article is especially concerned with changing attitudes in the 18th and 19th centuries toward violence. At the end of the 17th century, apparently, violence - whether perpetrated by members of the public or by the state - was considered normal, everyday, and just-to-be-expected. By the 19th century, there was a consensus that violence was most emphatically not 'normal'. In the 1840s, the Proceedings tell us, "only those found guilty of the most serious offences (murder, wounding, violent theft, arson, sodomy) were sentenced to death (though only murderers were actually executed)..."

To illustrate this shift toward humanity and away from brutality - and particularly away from the brutal punishment of property crime with the same severity as violent crime, Ms. Blakeslee mentions the case of John Ward, put to death in 1765 for stealing a watch and a hat; she points out that, not long afterward, a woman who slowly tortured a servant to death got the same punishment. The case does, in one sense, support her contention. We can guess that had the prosecution taken place in 1840 instead of 1765, Mr. Ward would have survived his brush with the law.

Continue reading "History of Crime" »

June 9, 2014

Self Reporting and New York Licenses - The Devil's in the Details

Bosch TwoMonsters.jpgImage: Hieronymus Bosch (circa 1450-1516) [Public domain], via Wikimedia Commons

It's easy to get confused when it comes to your criminal or driving history (and those elements of either that might count as both). Life is long, but memory isn't.

As of March of this year, prosecutors no longer have to rely on their own memories or guess about the 'rest of the story', when it comes to your driving history. According to an announcement by the Governor, prosecutors now have access to an abstract of your driving record that includes not just the moving violations you have been convicted of, but everything you have been accused of in the last ten years, as well.

You and your attorney, however, are still pretty much on your own. The abstract DMV prints out for you, will likely list only violations - and then only those that occurred within the last four to five years (except for alcohol-related convictions, which stay on for ten).

Relying strictly on your memory can have bad consequences. One case that recently came to our attention involved a driver relocating from another state, who apparently 'over-reported' on a license application. The application was denied, because of New York's current 'three strikes' policy (see our entry of October 1, 2012). The driver had claimed to have three out-of-state alcohol-related convictions.

It only occurred to the driver after the denial that it might be a good idea to get a driving history from the prior state. A review of that record, however, revealed no mention of a third conviction. This jogged the driver's memory: one of the three charges had actually been dismissed.

What do you do when you've made a mistake of this kind? Well, you may be able to submit a new 'Driver History Disclosure' to DMV. But remember that it's essential to be truthful on these applications. If you 'under-report' (or 'over-correct' when you find you've made a mistake), you can find yourself - as a representative of DMV pointed out - with a whole new level of problem.

So, if you're relocating from another state, it's a good idea to do a search of the National Driver Register before you submit your license application to make sure you haven't forgotten anything. The National Driver Registry (NDR) is administered by the National Highway Traffic Safety Administration in Washington, DC. According to its web page,

NDR is a computerized database of information about drivers who have had their licenses revoked or suspended, or who have been convicted of serious traffic violations such as driving while impaired by alcohol or drugs. State motor vehicle agencies provide NDR with the names of individuals who have lost their privileges or who have been convicted of a serious traffic violation.

New York's Department of Motor Vehicles has prepared an Individual's Request for National Driver Register file Search. For a $10 fee DMV will verify your signature and submit the request for you. Or you can sign the request in the presence of a notary public and submit it to the National Driver Register yourself. If you submit it without going through DMV, there is no fee.