Law

Cowardice is Eternal

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Glenn posts about an interesting case.

Two subway workers in New York called the police when they witnessed a rape in progress, but didn’t do anything to physically stop the crime. A case brought against them was thrown out of court, the judge saying that calling the cops is all that is required of witnesses.

Glenn isn’t any too happy about the ruling. He says….

“In a previous day, in a different culture, such men would have been afraid of being called cowards for failing to help a woman under such circumstances.”

I don’t think Glenn remembers Kitty Genovese. That particular incident might not have occurred in another culture, but it certainly happened in a previous day.

Look at it this way. At least the New York residents who saw the crime called police this time around. That is certainly an improvement over past performance. Maybe, after another four or five decades, people who live in New York will even become as brave as those of us who hail from flyover country.

Those who follow the links above will no doubt note that two of the three examples are where people who were legally carrying concealed weapons confronted a crazed killer. Since New York effectively bans that sort of thing, we really can’t expect them to have the same level of civic concern. This is, I think, one of the points that Glenn was trying to make.

But also note that the last link leads to the story of two unarmed vacationers who tackled a rifle wielding gunman who was shooting at the White House. Neither of them were from New York.

The Law in the Real World

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Daniel J. Solove wrote a short essay titled “Why the Innocent Are Punished More Harshly Than the Guilty”. His position is that wrongly accused innocent people will, at least sometimes, refuse plea bargains and reduced sentence deals. Instead they will simply insist on their innocence, which will lead to harsher sentences than if they played ball and admitted guilt.

Jonathan wrote a cut-and-paste post of his own, agreeing that our criminal justice system is terribly outdated, woefully inaccurate, and completely unreliable. (Paraphrased for dramatic effect, of course.)

This set off a little back and forth in the comments. Since law enforcement is an interest of mine, I decided to chime in. My remarks soon became too large for a simple comment, so I decided it might be more useful to write a post of my own.

The first comment I want to discuss is by Shannon Love. He runs the numbers an concludes that our justice system works pretty well most of the time, but might be improved if judges were allowed to empower panels of experts to ensure that only reliable scientific testimony is admitted.

This is actually something I come across fairly regularly when someone finds out that I used to work in law enforcement. “Why don’t the cops have this piece of equipment, why doesn’t the courts do things this way?” As Lexington Green points out in his own comment, there just isn’t enough money to do everything. And there never is going to be, since expectations rise as technology increases capabilities. As the system can accomplish more, the public will demand more. And the media isn’t helping any.

Take the popular television drama CSI, where a PhD and a group of others with advanced degrees work the night shift. Just how much money does it take to lure such a dream team away from their studies, anyway? And this is just the graveyard shift! Is Stephen Hawking working the daylight hours?

Forget adding to the burden on the budget by advocating new programs. We can’t afford what is on our plate’s now.

Ginny points out that eyewitness testimony is unreliable, but she is not too crazy about living in a world that encourages us not to believe our “lying eyes.” She also thinks it might be a bad idea to get rid of it. Jonathan says “Eyewitness testimony is not reliable. Everyone knows this except, it appears, lawyers.”

It just so happens that I’ve recently discussed that very thing on my own blog. Bottom line is that the vagaries of eyewitness testimony is extremely frustrating to the professionals who choose a career in law enforcement, but it really is something the system can’t do without. The reason why is that juries always want to to listen to someone who was there, even if it is some flight of fancy. Get a criminal dead to rights, with a non-existent alibi and fingerprints all over the corpse, and you can still have a shaky case unless you can get someone to say that they saw them do the deed.

Harsh reality dictates that no one on the enforcement side of the law cares if the witness really saw what they say they saw, it only matters if the jury will believe. Educating lawyers on basic science would be pointless since their job is only to convince the jury that the science is correct if it bolsters their case, or to convince them that it is suspect if it harms their defense.

Educating juries, now. That might do something.

On that same comment, Jonathan also says “…there is a non-trivial percentage of convictions of innocent people, about which prosecutors profess unbelief even in the face of incontravertible DNA evidence.”

I’m not really sure what he means by that. If Shannon Love’s figures are correct, then only a tiny percentage of death penalty cases are overturned by re-examining the DNA evidence. Is anything less than a 100% confidence rate unacceptable?

If so, I’m afraid that Jonathan is not being very realistic. It is an imperfect world, and violent crime is usually a chaotic and frenzied act that the guilty will desperately try to deny any responsibility for. The standard of “beyond reasonable doubt” recognizes this basic flaw in the fabric of the world, and it is really the best we can do.

(I can’t say for sure how many capital cases are overturned by DNA evidence, or even how many cases have seen the evidence re-examined, because there doesn’t seem to be any statistics on this issue. Groups in favor of abolishing the death penalty claim that no one should be executed because some cases are overturned, which isn’t an argument I find particularly compelling because they like to lump in instances where someone was freed on procedural grounds. This muddies the water further, and I really can’t see any clear picture here.)

Quote of the Day

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In terms of solutions, I would advocate getting rid of acceptance of responsibility benefits. I would also advocate reforming the plea deal system so that there can’t be enormous disparities between punishments offered in a plea deal and possible punishments if a defendant chooses to exercise his or her right to go to trial.
 
I would also dramatically reform the trial process, which is not a particularly good truth-finding mechanism. The rules of evidence, for example, are based on false and long-disproven empirical and psychological assumptions. A big step forward would be reforming the rules regarding eyewitness testimony, which studies consistently show to be extremely unreliable. Certainly the studies that demonstrate its unreliability should be allowed at trial — they’re currently not. And perhaps eyewitness testimony should be excluded from trial if it is so unreliable — at least under certain circumstances.
 
We’re in the 21st Century and the law still uses slightly-updated medieval methods for determining truth. As all the DNA exonerations are showing, our criminal justice system is woefully inaccurate. It’s time we thought about how to reform and modernize it.

-Daniel J. Solove, responding to a commenter on his post, Why the Innocent Are Punished More Harshly Than the Guilty

He’s right.

The British Police Are Sifting Through Facebook

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The headline reads “Police tackle Internet knife gangs“, but it is completely false.

It seems that the cops in the UK are looking at profiles in Facebook and other popular Internet sites. If they see a picture of someone posing with a knife, a picture taken in a public place, then they go arrest the miscreant. It would appear that simply having a knife in public is enough to have the full weight and power of the law come down on your head. The police can arrest you, and the courts will convict you, even if there isn’t any reason for them to suspect you are up to no good with that knife.

It is legal to own knives as long as you keep them at home, but that doesn’t stop the cops. Even though no law has been broken, they still will lecture the poor knife owning bastard and confiscate his legally bought and held possession.

Notice, if you will, that there is no hint that a gang is involved. The cops are targeting people who want to look tough in a picture on a social networking site, not criminals. What gang? Where are the gangs? There aren’t even any “Internet gangs”, just some isolated kids!

Let us consider this as yet another reason why I thank God every day that I was born an American.

(Hat tip to Milo, who seems to have morphed into my go-to info source for British government overreach.)

Rocketing to Hell

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Did you guys see this?

Seems the European Union is attempting to establish a “European Criminal Records Information System”. The idea is to share information concerning criminal convictions between the member states, and the lack of a program to do this was first noted in the European Council Declaration on Combating Terrorism of 25 and 26 March 2004.

A criminal database is something I heartily approve of, particularly when dealing with all of those little bitty countries that make up the EU. Far too many hardened criminals would slip through the cracks if the police and courts don’t know their past history. In fact, I’m wondering why it took the member nations five years to get off their collective backsides and get around to actually taking action.

But I was taken aback when I looked over the categories of offenses that would make up the data entered into the database. The sheer number of offenses is staggering, taking up at least half of the PDF file I linked to above. And some of them are not anything that I would consider a crime.

For example, number 0200-00 is “Knowingly taking part in the non-criminal activities of a criminal organization”. So that means lawyers who defend gangsters in court are considered criminals?

I was also intrigued by the way that the listed crimes illuminated, if not the actual conditions in the EU, then at least the fears of the people who live there. Section 0400 concerns “trafficking in human beings”, which should most certainly be a crime. But there are eight separate crimes listed! Simply trafficking in humans isn’t enough, they have to break it down.

Take a look at 0403-00, which is “Trafficking in human beings for the purposes of organ or human tissue removal”. That is certainly scary enough, but 0407-00 is reserved for those who kidnap children to remove their organs! What the hell, is Europe turning into one big horror movie? A horror movie where, thanks to draconian gun control laws (section 0500), all of the victims are unarmed? Consider this the next time you plan a vacation overseas.

It isn’t until section 8 where we see violent crimes against individuals crop up. 0807-00 is all about “Offences related to committing suicide”. Take my word for it, if they manage to break this particular law then punishing them is a waste of time.

If you want to see just where the EU is going, then take a look at sections 1205-00 and 1206-00. Both of them say that it is a crime to “insult” the State, the Nation, the symbols of the State or Nation, or representatives of the State/Nation. Does this mean that it is considered a crime if someone writes an op-ed that is disparaging of a politician? Sure sounds like it.

I could go on for awhile, but you get the idea. Click on this link and take a look for yourself.

Keep in mind that this is simply a list of offenses where someone has already been found guilty. It is not a list of new laws, nor is it a sentencing guideline. But if this is an accurate snapshot of what the EU considers to be crimes, then it is probably too late for them.

(Cross posted at Hell in a Handbasket. Hat tips go to Milo and the Libertarians.)