Noose display may become a hate crime in Missouri

Missouri’s 2008 legislative session will surely see many bills introduced that purport to solve “problems” which may or may not even exist in Missouri. It IS an election year. One of those bills is from Senator Yvonne Wilson, D-Kansas City.

The Senator has filed SENATE BILL NO. 763 which makes displaying a noose a hate crime in Missouri if that display causes someone to fear property damage or personal injury.

I would note that it’s already a crime in Missouri to place another person in fear of personal injury.

This is just more social legislation forcing people to be nice, even when there seems no particular trouble in Missouri over this issue. Senator Wilson seems to recognize this, but considers this measure essential because Louisiana’s Jena Six trial “raised eyebrows” all across the country.

Even if there were a report of a Missouri noose being displayed (somewhere besides at a rodeo, I mean), more laws are not always the answer. Not every wrong must have a criminal remedy. Who can dispute that a society that resolves to fix every hurt would be a nightmare to live in?

Senator Wilson should also consider that her bill (and its attendant publicity) may be both the cause of–and the remedy for–any future display of nooses. I hope not.

Another difficulty with such prohibitive legislation is that draping a noose over a tree branch is more a symbol than an actual threat. Hate speech, yes, but still more symbol than threat.

One symbol is easily substituted for another, and designating one symbol as a crime will simply generate a new symbol to carry the same bigoted message. In 2004 we outlawed cross-burning. This year, it’s nooses. Next year, perhaps the “Stars & Bars.” After that… we’ll have to see.

Finally, if we want to pass this questionable law, then lets do it right. As written, this bill does not effectively address the real harm it is trying to stop.

A person seeing a noose displayed outdoors in public would hardly feel as threatened as some poor kid who finds a noose stuffed into or hidden inside his gym bag.

Can a noose be both displayed AND hidden at the same time? I suspect not. So if Senator Wilson moves ahead with this bill, it could at least be rewritten to address the larger problem.

The time is ripe for Missouri to record police interrogations

I was prosecuting a criminal case once and my witness, a state trooper, had done a good job testifying on direct examination.

The defense attorney was a hard charging guy who had taught me some valuable lessons when I was a new lawyer. During an uncustomarily gentle cross-examination of my trooper, the attorney strolled over to his briefcase and brought out a small tape cassette & player and laid them on the defense table.

Then he asked:

Now Trooper, my client didn’t agree to let you search his car, did he?”

Yes, he did,” the trooper said.

Are you sure?

Yes.” The trooper got a funny look on his face as he (and everyone in the room) wondered where this was going.

Isn’t it true,” the attorney persisted, “that he told you ‘NO’ and you said you would search anyway?

No,” the trooper said again. The attorney picked up the tape and began to load it into the player.

Are you sure?” the attorney said, as he waived the cassette player around in front of the witness. This was about the time that my witness directed that what-do-I-do-now look to me sitting at the prosecution table.

Naturally, I looked away from the Trooper (giving him the universal “you’re on your own now” signal).

Seeing no aid coming from me, the trooper squared his shoulders, looked the attorney in the eye and said “Your client gave me permission to search.” The defense attorney stared hard at him. The trooper gave him a cast-iron stare back.

Then the attorney switched to another line of questioning as he slipped the recorder back into his briefcase. The match was over and his client was quickly convicted.

I believed the trooper that day; and not just because the lawyer blinked and the trooper didn’t. The trooper had always been a straight shooter and I expect he still is. But at that moment, he and I both wished that WE had a tape to prove what had been said.

Now comes this story of a New York police detective being charged with 12 counts of perjury because a teenager was smart enough to record his interrogation using an MP3 player. Unfortunately, the detective swore under oath that the interrogation had not occurred at all.

A dirty cop is more damaging to the criminal justice system than anything I can imagine. If he lies, it may take a long while before prosecutors and the courts catch on. Meanwhile, innocent people are charged, perhaps convicted.

Once the perjurer is caught, the public looses confidence in the system and juries are less likely to convict the guilty, thus turning the entire system on its head.

Perhaps it is time for Missouri to join those states that have required audio and/or video recording of all custodial interrogations of suspects.

These days high quality digital audio recorders that fit unseen in a pocket, record for 36 hours straight, and costs fifty bucks are available at any Walmart. If I was a police officer, I’d carry one for the whole shift, if only for my own protection.

It could be mandated that recording must begin at–and include the reading of–the suspect’s Miranda rights and continue, uninterrupted, until the end of the interview. This would end a common practice of obtaining a confession (by unknown means), then smoothing out the rough spots with the suspect; and only then turning on the camera for the jury.

It may be appropriate to require video recording at the police station, but allow audio-only in the field.

There could be reasonable exceptions for unusual situations where the police make a good faith effort to follow the rules, but otherwise, statements of the defendant while in custody would not be admissible unless recorded.

It hard to see the downside of such a rule. It protects the accused. It protects the police from false accusations. I suspect police and prosecutors would integrate the practice very easily. Courts and juries would love it. So why not do it?

20 year old to police: I’m watching you.

You may have read about this 20 year old from the St. Louis area. His name is Brent Darrow and he drives around with his car wired for video and audio. Brent Darrow is polite. He knows his rights. And he is making some police officers look bad.

I watched these two videos Brent made showing his encounters with police.

Video 1

Video 2

  • In the first video, the officer acted like a self-important jerk who threatened to INVENT up to NINE criminal charges, after the kid had the insolence to ask why he was being stopped. Thankfully, this clown seems to have been fired.
  • In the other video, the police stopped Brent at a DWI checkpoint. After asking for Brent’s license information, the officer said “Where you headed tonight?” and Brent answered, “I don’t wish to discuss my personal life with you officer.” That refusal meant that Brent would not be on his way for awhile. Not because he seemed intoxicated or was suspected of a crime, but because he drew a line at his privacy.

I’m not criticizing the police for asking the questions. They often ask questions knowing they have no authority to force answers. They will ask things like: “Can I search?” “Have you been drinking?” or “Where are you going?”

That’s OK. It’s their job to ASK. And the good ones do ask. But if the answer is no–and if they have no reasonable suspicion for holding you–a good officer is not going to get all bent out of shape about it. They are professional enough to hand back your license and say, “Thank you and have a nice evening, sir.” That’s what a good cop does.

Now I suspect this kid Brent is deliberately baiting the police. But as far as I can see, he is not loud or disrespectful, except that he refuses to give up any of his rights or privacy beyond what the law demands.

Most police officers that I know are not hyper-sensitive about their authority. They accept a refused request with grace; and endure a lot worse in the form of insults and profanity.

But some officers ought to behave better, but won’t, unless someone is watching.

  • Cell phones
  • CamCorders
  • Digital recorders
  • MP3 players, etc

Get a clue, officer. Everybody is watched now, including you.

It’s not so great to be the State . . . except when it is.

Let’s even up the books and note some advantages that the defendant has in a criminal case.

In the last post I mentioned that the accused gets to “hide” evidence in his possession that would tend show him to be guilty. And he CAN appeal a loss, because, while double jeopardy prevents the state from re-trying him, he can ask for a new trial. If he wins the appeal he may get one.

Some other differences relating to the defendant

  • He doesn’t have to testify; and no one can even mention to a jury that he hasn’t testified. A smart defense attorney might even leave the impression that the “mean old state” didn’t even let allow him to tell his story.
  • The whole burden is on the state to prove the case. If the defendant can raise a single reasonable doubt about ONE element of the state’s case, the jury must acquit the defendant.
  • The defendant gets to choose between having his case decided by a judge or a jury. That is important in most cases.
  • The defendant gets to choose (in many cases) between having his punishment decided by a judge or a jury.
  • The defendant cannot be convicted unless all 12 jurors agree. While the principle that a verdict must be unanimous applies to both “guilty” and “not guilty” verdicts, this rule is really in favor of the defendant.

My experience is that unless a jury can resolve its differences fairly early in the deliberations, the jurors holding out for a “not guilty” verdict tend to be more tenacious, while the “guilty” votes seem a bit more likely to yield, as in the movie 12 Angry Men.

As I’ve mentioned in another post, even the prosecutor and the defendant’s attorney are treated differently if they make an error in the trial. The prosecutor’s mistake is called “misconduct,” while a bumbling defense attorney is called “ineffective.”

The question of fairness and balance really comes down to the question of whether our courts are successful in convicting the guilty and releasing the innocent. That is an issue we will never resolve.

Why it’s great to be the State . . . except when it’s not.

If there is one word that should describe any criminal trial, that word is “fairness.” We usually think of fairness in a dispute as treating both sides the same, but in a criminal case the rules are very different for the two sides.

Each side has built-in advantages over the other. The idea is that those differences should balance one another. And that fairness and justice should result.

You can decide for yourself:

Starting with the state:

  • The state files only those cases it wants to file. Never mind what the police, the victim or the public want. The state doesn’t have to charge the bad cases; and in a perfect world, it never would. (This is much like a poker game where one player gets to throw out any hands he doesn’t like. Of course, that’s good if it means an innocent person doesn’t get charged.)
  • The state can dismiss the case anytime before trial. If they are not ready on the morning of trial, they can drop the charge and refile it that afternoon. This is a big-time screw job on the accused. Nobody backs the State into the trial corner.
  • With most defendants, the state has greater resources, i.e., money for scientific testing, experts, police, investigators. Mostly, they have whatever they need to try the case.

There are also some disadvantages in being the state.

  • The state has the burden of proving the charges. If they fail to prove every point in their case they lose. The defense may do nothing at all and still win.
  • The defendant may secretly know a lot of things that would hurt his case: names of witnesses, the existence of unfavorable documents. etc. But unless he is going to offer them at trial, he does not have to inform the state. The state, however, must hand over any unfavorable evidence it has. They cannot just ignore such evidence. They must give it to the defense.
  • Another disadvantage in being the state is that they have NO RIGHT TO APPEAL a “not guilty” verdict. This is different from civil cases, where each side can appeal a verdict. The reason there can be no appeal is because that would amount to double jeopardy if the State won on appeal and retried the case.

Those are some key differences that affect the state. In my next post we’ll cover some advantages to the the defendant.