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As we mentioned in a May entry, Utah has amended its drunk-driving statutes(s) to lower the blood alcohol content (BAC) necessary to take a simple instance of driving with alcohol in your system and convert it into Driving Under the Influence (this is referred to as ‘Driving While Intoxicated’ in New York).  The new standard in Utah is a BAC of .05 of 1 percent.  This makes Utah’s anti-drunk-driving scheme the strictest in the US, as every other state uses a standard based on a blood alcohol content of .08.

We’re taking a follow-up look at the statute, because it may represent the future standard for the rest of the US.  To cite our 2013 entry on the subject yet again, much of the rest of the world has adopted a .05 (or stricter) standard, and the National Transportation Safety Board (NTSB) has been advocating a .05 limit for some time.

Even New York, under Governor Andrew Cuomo, has apparently considered reducing the blood alcohol content necessary to create a per se criminal offense at .05, just as Utah has.  This was according to an article in Glens Falls’ Post Star, entitled “How Low Should It Go? The .05 BAC Debate.”  A change along those lines would seem to be consistent with the anti-impaired driving push reflected in 2012’s ‘3-strikes’ rule. That rule has been discussed several times in this blog, of course; promulgated by the Department of Motor Vehicles without legislative input, the rule delays, or in some cases prohibits, re-licensing for drivers with a history of offenses involving alcohol or drugs.  Its purpose is to keep impaired drivers off the road, and the purpose of a .05 standard is the same.  The Post Star’s article was published in 2013, though, when the National Transportation Safety Board first suggested the .05 standard. New York is still at .08, of course.

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A recent New York Times piece bears the pithy headline: ‘How Much Is Too Much Marijuana to Drive? Lawmakers Wonder’. We wondered too. We took a look at the article, and at the American Automobile Association’s new study, cited by the Times. It’s posted on AAA’s website, along with a lot of other interesting information on this topic. The study’s called ‘An Evaluation of Data from Drivers Arrested for Driving Under the Influence in Relation to Per se Limits for Cannabis’ and its answer (on Page 3 of the report) to the question posed by the Times, “how much is too much?” – that “a quantitative threshold for per se laws for THC following cannabis use cannot be scientifically supported,” – boils down to “it depends.”

Meanwhile, at least three states, according to the study (on Pages 2 and 25) have put per se limits on the amount of THC you can have in your system and drive legally. ‘Per se‘ is latin for ‘in and of itself’. If you adopt a per se rule, you’re saying that any other fact is irrelevant. “I don’t care whether you were impaired or not,” the rule says, “I’m not punishing you for being impaired; I’m punishing you for driving with x amount of a substance in your system!”

The authors of AAA’s study concluded, however, that if the purpose of per se statutes is to deter impaired driving, they don’t do a very good job. Because of the nature of THC (‘THC’ is short for ‘delta-9-tetrahydrocannabinol’, and it’s what winds up in your system after you use marihuana), it has different effects on different metabolisms; in particular, you build up a tolerance to it over time. If you set an arbitrary limit on the amount of THC a driver can have in his or her system, you essentially make it legal per se to drive with less than that in your system. The authors fear this means that a good many people who are are impaired will get away with driving in that condition, because they have a low tolerance, but don’t meet the per se standard. Contrariwise, drivers who are seasoned marihuana users, and therefore can have a higher level of THC in their systems without being impaired, will be prosecuted, impaired or not.

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“What’s in a name? That which we call a rose By any other name would smell as sweet.”

Romeo and Juliet (II, ii, 1-2)

What’s in a name? ‘Lèse-Majesté’ is an attractive name. It’s French, derived from the latin laesa majestas, which Black’s Law Dictionary (5th Edition) defines as ‘injured majesty’; this term covers “any offense against the king’s person or dignity.” It can be a synonym for high treason.

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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.
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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.
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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.

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“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.

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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.
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You might be asking, 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.
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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.
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