David Letterman’s bizarre outing as a dirty old man raises the question: Why is blackmail a crime?

• Is it a crime to spread gossip? No.

• Is it a crime to pay someone not to gossip? No.

• Is it a crime for someone to ask the subject of gossip to pay money in exchange for not spreading the gossip? Yes, in Missouri and in most other states.

The odd thing is that Letterman’s blackmailer could have spread the story of Letterman’s sexual escapades without consulting with Letterman at all. It’s sleazy, but it’s not a crime. If true, it is not even slander.

Letterman’s alternative to blackmail was to have his exploits published in the tabloids. If you look at it that way, it seems that blackmail–rather than being a crime–gave Letterman an additional option. That is, the blackmailer gave him the chance to kill the story in exchange for money.  And having a choice, Letterman is arguably better off.

Some issues come up over and over:

• The police want to search my car. Should I agree?
  

• Are the police allowed to lie to me?

• The police didn’t read me my rights. Will they drop the charge?

• Police Interrogation: No lawyer will save you; you must save yourself.

• I’m stopped for a DWI. Do I blow into the breathalyzer?

• Top Ten (10) Things NOT to Do If You Are Arrested.

• Search Warrants in Missouri: How it’s done. Part One.

• Search Warrants in Missouri: Part Two. The exceptions.

• Search Warrants in Missouri: Part Three. More exceptions.

• Search Warrants in Missouri: Part Four. The automobile exception.

Most people would agree that driving around without a seat belt shows a definite streak of self-destructiveness. This is probably why we see frequent “Click-it or Ticket” PR initiatives coming from law enforcement promising a “crackdown” on seat belt violators.

Thursday September 11, 2008 is another crackdown day for some Missouri law enforcement. So be warned. Buckle-up or they are going to get you on Thursday. Or so they say.

Scare tactics aside, Missouri law enforcement have no power to pull over a driver for a seat belt violation. They can only write a ticket for a seat belt violation if there is another valid reason for the stop. The law is clear: “No person shall be stopped, inspected, or detained solely to determine compliance with [the seat belt law]“

Police can hardly crack down because they already push the law as far as it can go, even to the point of adding a check box to  every ticket, so they can effortlessly add a seat belt violation to any other charge.

We will have to wait to see if 2009 brings another bill in the legislature to let police pull anyone over if they see a seat belt violation. The yeahs will say we can save lives. They are surely right.

The nays will say it just gives the cops another excuse to get into your business. Another bit of liberty lost.

Perhaps I complain too much about the criminalization of trivial offenses. Sometimes the law is questionable. Other times the police and prosecutor get over-zealous.

One of the kinds of cases I came to dislike as a prosecutor were those dealing with animals. This is one of those areas where people get very upset, often out of proportion to the actual harm done.

A man may forgive you for kicking him, but he will never forgive you for kicking his dog.

Cases involving animals are often brought by in conservation agents. And that brings me to another kind of case I learned to dislike.

Conservation agents are mostly nice guys who belong to what you might call a “niche area” of law enforcement. Real cops deal with everything from traffic tickets to murder and usually are able to put things in perspective. But niche cops–that is, conservation agents, meter maids, dogcatchers, liquor inspectors, and the like—sometimes lack the larger view that enables them to view small cases as . . . small.

When I was a new prosecutor I was given a case about a fellow who had been caught possessing an illegal raccoon. My boss said it would need to be tried and that it would be good practice for me. I read all of these reports and met with the conservation agent, who was very interested in the public chastening of this particular lawbreaker.

The defendant was apparently unrepentant and refused to accept that he was a criminal who deserved to be punished (in this case by up to one year in jail).

So I went into court and masterfully laid out my case for the judge. The conservation agent was serious and professional; the evidence was ironclad, proving beyond all doubt that this stubborn lawbreaker had defiantly possessed an illegal raccoon and had been caught red-handed.

Then the defendant took the stand. The fool admitted everything! He explained how he had discovered this weakened & starving baby raccoon alone in his garbage can on a cold winter night. He took it in. Fed it. Raised it.

His children turned it into a family pet.

All of this in blatent violation of the law, § 252.040, RSMO.

And if that is not shocking enough, when summer came, the animal was pressed into service as mascot for the defendant’s softball team. He claimed that the raccoon was a big hit in his little uniform and tiny cap.

I gave an eloquent closing argument, exposing the defendant’s contempt for the law and heartless exploitation of this motherless creature. I suggested that the court make an example of him.

The judge found him guilty and sentenced him to a $5.00 fine. The example, apparently, was for me.

When I read some of the proposed Missouri legislation each year two things give me reason for hope:

1. The really goofy stuff usually doesn’t pass; and
2. The really, really, goofy stuff (as noted in other posts) appears elsewhere, not in Missouri.

In Virginia and Maryland they are looking to outlaw the boorish fad of dispaying rubber bull testicles (popularly known as “trucknuts”) beneath the ball hitch on pickup trucks. Even motorcycles are sporting a set these days.

The Virginia bill is sponsored by the lawmaker who gained notority for his failed attempt to ban baggy pants in 2005.

These well-meaning goobers think that the common good is inevitably advanced by making all coarse or annoying conduct a crime.

Perhaps it would be best if no one displayed trucknuts, drank alcohol, wore baggy pants, or broke wind in public, but some things are best regulated by social convention rather than the criminal courts.

Thank you, Missouri, for leaving me alone. It’s good to be reminded why I like it here.

Most police officers are reasonably hard-working. They have a job to do. Their job is to catch people who break the law. The ones that work the hardest do not sit around waiting to see if someone will commit a crime right in front of them. No, they go looking for evildoers to arrest. Like I said, it’s their job.

If the police pull me over about a bad tail light, I am relieved to find that I am only getting a warning. But then the officer asks: “Say, before you go, would you mind if I search your car.”

This happens more often than you may imagine. He may want to search clothing too, or a purse. Depending on how things develop, he may even say: “How ’bout we go over and search your house?” What should I do?

I suppose if I’d lost something and wanted Officer Friendly to help me find it, I would be grateful for the help. Perhaps terrorists have taken over my back seat and this is my chance to escape.

Otherwise though, I’m having trouble thinking of reasons why I would agree to having a stranger nosing around in my stuff. No matter if I have anything to hide or not, it seems unlikely that having my car tossed is going to get me on my way any sooner. I’m not talking about being rude; not talking about physically resisting a search. I’m just talking about NOT AGREEING to a search.

It seems like a no-brainer when you put it that way, doesn’t it? Actually, people agree to those searches by the thousands. And criminal cases are filed all the time as a result of searches that the citizen simply agreed to.

Bottom line: I can always say no. No law requires me (or the average citizen) to agree to this invasion of my privacy. If the officer actually has legal grounds to search, he’s going to go ahead and search anyway, with or without my permission.

Time is running out on this legislative session, but until it does we still have a substantial pile of bills that may yet become law. One bill that whose purpose eludes me is House Bill 926, sponsored by Rep. Jeff Roorda of Barnhart, Missouri.

House Bill 926 imposes an excise tax on controlled substances and illicit alcoholic beverages. Just so you get the idea, here’s how it works with a marijuana “dealer,” which is defined as a person who possesses more than thirty-five grams of marijuana, or one or more marijuana plants.

A marijuna “dealer” would be required to pay a tax of $3.50 per gram of marijuana possesed, and $350 per marijuana plant. A gram of marijuana is enough to make two medium sized cigarettes, so that works out to about $35 for 20-pack of marijuana cigarettes. (The tax on cocaine is $50/gram and methamphetamine would be $200/gram).

I know, you have to be thinking, “What clear-headed dope dealer (or user) is going to be stupid enough to come forward and pay taxes on his illegal drug inventory?” Well here is the brilliance of this plan: The “dealer” doesn’t have to give his name or other identifying information. The “dealer” can pay the tax in person or by mail. The Director of Revenue will then issue the appropriate tax stamps which must be immediately affixed to the illegal drugs.

Now. Here’s where this bill shows its teeth: If the police should later catch the dealer in possession of the illegal drugs, but not displaying the appropriate tax stamps, the police get to fill out even more forms than they do now. They send the forms to the Director of Revenue, who then sends the “dealer” a bill for the unpaid tax, plus interest and penalties. The bill also creates a five-person “Unauthorized Substance Tax Commission” to oversee the program.

That’s it. I don’t think much of the plan. As an anti-crime measure, its laughable. As a revenue generator, I’m skeptical that any “dealer” will pay in advance. I’m also skeptical that many “dealers” will be paying anything from their jail cells. If it takes in more than the program costs, I’ll be shocked. If you have a better idea, leave a comment.

Every proposed bill in the legislature addresses a pressing need, at least in someone’s eyes. The proponents of Senate Bill 73 would seem to be big animal lovers. I like dogs and cats myself, but here is the deal:

Under the old law, a person could be convicted of animal neglect if he

1. Intentionally failed to provide adequate care and control over any animal in his care; and
2. thereby caused substantial harm to the animal.

Under Senate Bill 73, sponsored by Democratic Sen. Jolie Justus, animal owners will be looking at a possible fifteen days in jail if–through negligence–a person fails to provide adequate care or adequate control of their animal, even if no harm whatever comes from it.

Bottom line: if your dog chews through the rope and gets loose; or if some busybody neighbor thinks its too hot (or cold) out for Spot; or if the cat escapes because the door stayed open too long, then you can have a criminal record and and maybe a jail sentence. And that’s even if nobody (including the animal) suffers the slightest harm.

In case you’re wondering, Missouri law sets a looser standard regarding the care and control of your kids. Thank heaven, otherwise I’d have doubtless been jailed myself by now.

When I was a child we had an expression that seemed true enough at the time. People still say it. We used it whenever someone was doing something that seemed foolish. We would shrug and then remark: “Well, it’s a free country.” Sometimes I still say it, but today it seems less a comment on foolish behavior, and more a sad irony.

Back in law school, I remember fellow students complaining that people did lots of stupid and mean things and how come those things weren’t against the law? The professor pointedly said: “Not every wrong is a crime, nor does every bad behavior have a legal remedy.” He explained that this was a given in any free society.

The contrary view is that with enough tweaking of the law, we can reach the paradise of perfect conduct. Even our words and our thoughts can be controlled and criminalized. There is nothing a more restrictive law can’t fix.

So we have this divide–or disconnect–between those who think a little freedom can be left to us; and those who would legislate so much of life as to make criminals of us all.

Senate Bill 60 (criminalizing “celebratory” gunfire) stirred my memory. I recalled that a Mythbusters show (on the Discovery channel) had questioned whether a bullet fired straight up into the air could hurt someone when it came down.

I checked. The answer seemed to be “no.” If the bullet went straight up it would come down with a speed of a really hot fastball (about 100 MPH), not enough to penetrate skin.

On the other hand, bullets fired at lower angles had hurt and killed people. These were likely fired at low enough angles that they retained their spin and ballistic trajectory (and speed). Mythbusters declared the myth busted, but also confirmed and plausible. So Senate Bill 60 may save somebody somewhere. Meanwhile keep those barrels pointed straight up.

Senate Bill 60 would expand the crime of Unlawful Use of a Weapon to anyone who “discharges or shoots a firearm into the air for celebratory purposes in an urban area.”

This will be a felony and will doubtless increase civility and safety among city-dwellers. Happy New year and Fourth of July!

I submit, however, there is more to be done. Today I was watching a movie, Back to the Future, Part III, when I was reminded of a remaining loophole in the Missouri weapons statute. Many of you will recall this pitiless scene:

BUFORD: Mad Dog? I hate that name. I hate it, you hear? Nobody calls me Mad Dog. ‘Specially not some, duded-up, egg sucking, guttertrash.

Buford starts shooting at the floor around Marty’s feet. Marty jumps and cries out.

MARTY: AHH!

BUFORD: Dance! Come on! Come on, runt, you can dance . . . (fires another shot) better than that!

Marty keeps moving his feet, finally ending up in a Michael Jackson “moonwalk.”

I wanted to cry.

Not to criticize Senator Yvonne Wilson’s efforts, but it would have been simple matter to add language making it a crime to “discharge or shoot a firearm into the ground for the purpose of making another person dance.” Maybe next year.