New York’s Stop and Frisk Case: With Trial Over, What Should We Expect?

On Monday, May 20, Judge Shira Scheindlin of New York heard final arguments in a trial about stops and frisks by the New York Police Department (NYPD).  The Center for Constitutional Rights and a number of individuals has sued the NYPD.  They allege that the NYPD has used stops and frisks for the last ten years in violation of 1) the Fourth Amendment right against unreasonable searches and seizures,  and 2) the Fourteenth Amendment right to equal protection of the laws, because stops and frisks have overwhelmingly targeted racial minorities — chiefly black and Latino men.   The judge’s decision may not  come for some months.  I discussed the case on NPR’s Tell Me More on May 21 (here) along with Delores Jones-Brown of John Jay College of Criminal Justice.

Here’s a short course on stop and frisk in American law, codified by the U.S. Supreme Court’s case of Terry v. Ohio (1968).  Generally, an arrest or a search requires that police have probable cause to believe that the suspect is involved in a crime.  Probable cause is less evidence than “proof beyond a reasonable doubt,” and less evidence than “more probable than not” (the usual 50.1% of evidence required to win a civil case in the U.S.).  A stop and frisk is less intrusive than a traditional arrest or search: it is a temporary detention (stop) and a pat down of the outer clothing for weapons (frisk).  So it requires only reasonable, fact-based suspicion — an amount of evidence less than probable cause.  To use the Supreme Court’s terminology, an officer may perform a stop when he/she has reasonable suspicion that crime is afoot and that the suspect is or was involved; the officer may also perform a frisk when he/she has reasonable suspicion that the suspect is armed.  Reasonable suspicion is a very low standard of evidence, but it is enough for stop and frisk because the stop is supposed to be brief and temporary, and the frisk is cursory and only for weapons, not a general search for evidence.

In 2002, the NYPD’s own statistics showed that officers performed 97,000 stops and frisks; by 2011, the number had increased to about 700,000.  (You can access the NYPD’s  statistics here.) Crime was already at historic lows in 2002 and is even lower now.  The NYPD claims that the continued drop in crime shows the effectiveness of its intensive use of stops and frisks, even though only about ten percent of these actions yielded any contraband or resulted in an arrest.  Over the same period, roughly 88 percent of those stopped and frisked were black and Latino men, leading to charges that the NYPD stop and frisk program was a form of racial profiling.

Judge Scheindlin’s comments during the final arguments on May 20 lead me to think that she will decide that the stop and frisk activity of the NYPD violates the Fourth Amendment requirement of reasonable suspicion.  She said she thought that getting results in only about ten percent of the cases — and finding guns (the objective of the NYPD’s stop and frisk activity) in far fewer cases than that — showed that the police were acting without even enough evidence to meet the very low standard of reasonable suspicion.  “A lot of people are being frisked or searched on suspicion of having a gun and nobody has a gun…[T]he suspicion turns out to be wrong in most of the cases.”  Proving that the racial skew in the statistics is racial profiling is more difficult, requiring both convincing statistical evidence and evidence of actions by the NYPD that target racial or ethnic minorities.

What do you think?   I’ll be keeping you posted.

Clarity on Miranda: Why the Boston Bomber Won’t “Walk on a (Miranda) Technicality”

For those who want clarity on how the Miranda warnings, and the government’s use of the “public safety” exception, here’s my interview on WESA FM Public Radio on the program Essential Pittsburgh.  This wide-ranging discussion allowed host Paul Guggenheimer and I to thoroughly explore all the aspects of the Miranda warnings.  How it is actually used by police?  Does the warning actually stop people from talking to the police, undermining efforts to prosecute the guilty?  And how it might impact the prosecution of the Boston bombing case?

In the days since the federal government’s announcement that they would not read the Boston bombing suspect the Miranda warnings, under the “public safety” exception, I’ve had some conversations with some acquaintances — all reasonably bright, aware people.  I’ve asked them what they thought would happen to the bomber in the courts if the government did not read the suspect his rights.  The unanimous reply: the Miranda failure means he’ll be freed because some court will let him “walk on this technicality.”  Those conversations, the uninformed media coverage of the issue, and the willingness of politicians of both parties to twist the law for their own political gain are what motivated me to write an op-ed for yesterday’s Pittsburgh Post-Gazette and to discuss the issue on the radio.

Misunderstanding Miranda: Why The Boston Bombing Case Won’t Be Compromised By Miranda Warnings

With all the talk about whether the surviving Boston bombing suspect should receive Miranda warnings prior to questioning, our political leaders and the media have obscured what the Miranda case requires, what it does, and its effect on police investigation.  My article “Misunderstanding Miranda,” in today’s Pittsburgh Post-Gazette, clears away the unfortunate fog.  Here’s a sample:

Just hours after the second Boston bomber was taken alive, the government announced that it would not give the man Miranda warnings before questioning him. Instead, the Department of Justice said, the attacker would be questioned without warnings under the public safety exception…

Let’s start with a clear understanding of the Miranda warnings. Failing to give Miranda warnings does not interfere with the power of the police to make an arrest. Not giving the warnings does not affect the ability of the prosecution to try a suspect. In fact, not reading a suspect his Miranda warnings does not even violate the person’s rights.

There’s a lot of misunderstanding of Miranda out there, and the public discussion over the last few days has made it worse.  It’s important to know that our police officers and security personell will not be slowed down by Miranda warnings.  The article will tell you why.

 

 

 

Supreme Court: Drug Detection Dogs Used at a Home Require a Warrant

On November 5, I posted here about Florida v. Jardines, in which the U.S. Supreme Court would decide this question: when a police officer takes a dog trained to sniff for drugs onto the porch of a home to sniff the air coming from under the door of a house, does this action constitute a search under the Fourth Amendment?  If the answer was yes, this would mean that police would need a warrant from a court before bringing the dog up to the door.  In past cases, the Court had given police considerable leeway to use dogs; no warrant had been required before having the dog sniff a piece of personal luggage (the Place case is here) or a package addressed to someone (the Jacobsen case is here).

The Court has now issued its opinion in Jardines: bringing a drug-sniffing dog up to a home is a Fourth Amendment search, and requires a warrant.  The author of the opinion was Justice Antonin Scalia, which may surprise those who think of Scalia as the author of the Court’s most conservative cases.  But it should not shock anyone.  The case follows the pattern of one of Scalia’s opinions from 2001: Kyllo v. U.S.  In Kyllo, the police used a thermal imager on a home; the device detects patterns of heat, and the police used it to see considerable excess heat coming from the defendant’s home, which indicated the presence of a marijuana growing operation inside.  According to Scalia, this required a warrant because the target was a home, which is where people conduct their most intimate activities.  The imager, used from outside, was designed to detect activity inside.  Any method of “seeing” inside the home, Scalia said, requires the judicial oversight of a warrant obtained prior to the search.

Scalia used some of the same reasoning in Jardines.  Yes, the dog was outside the home.  And it is true that many non-family members have implicit permission to come onto the porch of the home, right up to the door: letter and package carriers, delivery people, and even police officers wanting to talk to the homeowner.  But the dog is there specifically to detect activity inside the home, and that is more like the thermal imager than someone delivering mail.  Folding this reasoning around the Court’s rediscovered interest in the law of trespass,  Scalia said the presence of the dog is an intrusion that the Fourth Amendment doesn’t permit without a warrant.

Jardines does not put dog sniffs of homes off limits to police.  Rather, police must first demonstrate to a judge that they have probably cause to believe that there is criminal activity the dog could detect inside the house.  Probable cause  is one of the lower legal standard in the law; it does not require anything close to proof beyond a reasonable doubt.

On the 50th Anniversary of Gideon, Part II: How We Provide Counsel for the Defense of the Indigent Accused

In a post here last week about the 5oth anniversary of the U.S. Supreme Court’s decision in Gideon v. Wainwright, I asked why the Constitution requires the state to pay for a lawyer for defendants who cannot afford a lawyer.   Here, we move on to another question: how does our society shoulder this burden?

We can answer that question in two ways.

The first answer is really an evaluation: we do not do it very well.  I kept my eyes open for stories about Gideon in the media and on the web in the last couple of weeks, and I found none saying that we were doing a great job.  Instead, the picture was bleak almost everywhere.  The New York Times’ recent stories on Gideon (here and here) were typical, recounting stories of people whose difficulties were made worse by inadequate or non-existent legal defense.   At the local level in the city where I live, the newspaper ran a lengthy negative story (here) about public defense services in our region and our state.

The second way to answer the question is structural.  How are publicly-funded criminal defense services delivered in the U.S.?  According to the American Bar Association’s Criminal Justice Standards for Defense Function, there are three basic models, and sometimes they are used in combination.  They are:

* Defender offices — These are public agencies, funded by government.  The lawyers who work in these agencies are salaried, sometimes with outside non-criminal law practices on the side, and sometimes not.  (The better rule is to prohibit these outside practices.)

* Court appointment systems — In these arrangements, courts appoint private lawyers to represent the indigent from a list that lawyers voluntarily join.  In most places, lawyers perform this work for a low flat fee per case.  This creates negative economic incentives for the lawyers to spend adequate time on the cases.

* Contract systems — In these systems, counties bid out all of the year’s criminal defense work to an individual lawyer or a law firm.  Despite the fact that the existing national standards mandate that these contracts not be awarded on the basis of the lowest bid, that is often how these arrangements are made.  The economic incentives in contract arrangements are, if anything, even worse than in court appointment systems.  Court appointment systems can also leave lawyers beholden to the appointing judges, sometimes intimidating the lawyers out of the necessary zealous representation.

The best practice is the establishment of an independent defender office, with the use court-appointed lawyers to take caseload overages and cases in which there are multiple defendants needing separate lawyers.

But in truth, all of these systems suffer from very basic problems.  There’s no political constituency in the U.S. that favors more funding for criminal defense, and few politicians are willing to stand up and say that we can’t have a functioning justice system based on adversary presentation of evidence unless we pay for it.  So, while there are some very good public defense operations in some places, we constantly see:

* chronic under-funding of defense agencies;

* crushing caseloads, far too large for any lawyer to do a competent, ethical job;

* little or no resources available for necessary non-lawyer services, such as investigation, expert witness services, and the like;

* governance structures for public defense that undermine the independence of the agencies;

* no resources for lawyer training;

* no continuity of representation for defendants through the pretrial and trial process; and

* unnecessary and sometimes lengthy waits for legal services, even for defendants in custody.

I don’t want to seem unduly negative.  There are some very good public defense agencies out there, and many thousands of dedicated lawyers who work in them.  But we, as a country, simply do not do enough to fulfill this important obligation.    And when we don’t, it isn’t just a matter of the accused not getting the services they should.  What’s happening is more basic: we are giving short shrift to our own values, and to our Constitution.  And there’s no way to square that with the idea that we are the fair people we think we are.

On the 50th Anniversary of Gideon, Part I: Why Provide the Assistance of Counsel to the Accused at State Expense?

March 18 marks the 5oth anniversary of the U.S. Supreme Court’s decision in Gideon v. Wainwright.  The Gideon case requires that if person charged with a felony wants the assistance of a lawyer but cannot afford one, the state must provide a lawyer at no charge.  The Court based its decision on the Sixth Amendment‘s guarantee of the right to the assistance of counsel.  When facing felony criminal charges that could result in prison, the Court said, lawyers were “necessities, not luxuries.”

In a decision nine years later, the Court extended the right to counsel to misdemeanor cases in which the trial judge might send the accused to jail.  But the right to counsel remains limited to criminal cases; while many jurisdictions have created organizations that provide lawyers  in civil cases (divorces, child custody cases, etc.) for people who cannot afford to pay, the  state is under is no constitutional obligation to do so.

There has been a lot said in the run-up to this 50th anniversary about how well the promise of Gideon has actually been carried out around the country.  I’m going to post about some of those issues later this week.   I want to begin with a more basic question, which I discussed in an interview on public radio a few days back: why should the state have to pay for lawyers for indigent defendants?  There are three important points to make.

First, we don’t supply counsel because of poverty.  We may or may not believe that there is a moral obligation to help the poor with basic needs, but our Constitution does not require that the state do this.  As Justice Harlan once said in another case, the Constitution does not include a philosophy of leveling.  The bottom line is that this shouldn’t be thought of as an act of charity.

Second, we handle cases in this country in an adversary system of justice.  Unlike other countries, evidence in our system is presented by both sides.  Each side works at exposing the weaknesses of the other through cross-examination and presentation of competing evidence.  The essence of such a system is the ability to challenge the other side’s evidence effectively.  If the accused has no lawyer, he or she will be unable to mount an effective challenge.  This would destroy the balance in the whole system.  This isn’t a matter of giving the defendant a “sporting chance,” or having an equal shot at winning.  Rather, in a process initiated by the state, the purpose of which is to punish the defendant and take away his or her freedom, it is fundamentally unfair to have one side of the adversary process at such a basic disadvantage.

Third, we don’t provide counsel to the accused because he or she deserves it; we don’t do it for them.  We do it, instead, for us.  Our values, enshrined in the Constitution, require that before the state can strip a person of property, liberty, or life, we must accord that person due process of law and a fair trial.

This may seem ironic, since many people accused of crime seem to have no regard for the law.  But that isn’t the point.  We don’t do it for them.  We do it because of who we are and what we value.  We do it for us.

Picking a New Police Chief: Six Crucial Considerations

On Feb. 20, Pittsburgh Police Chief Nathan Harper resigned at the request of Mayor Luke Ravenstahl.  Harper quit amidst a federal investigation of corruption allegations involving police department contracting and possible misuse of funds from unauthorized bank accounts.  (Harper has not been charged with any wrongdoing.)

Pittsburgh now faces a situation that cities all over American face periodically: the selection of a new chief.  In Pittsburgh, the mayor makes the selection, but as you would guess, many people are voicing their opinions on what matters in the selection of the new chief.  All of this became even more complicated when, just days after forcing Harper’s resignation, Mayor Ravenstahl unexpectedly abandoned his bid for re-election.  (The Mayor denied that the investigation played any part in his decision; he has not been charged.) So at this point we have an acting chief, a lame duck Mayor serving out the remaining ten months of his term, and an unresolved investigation.

On March 6, Pittsburgh’s City Council will hold a public hearing on the choice of the new chief; I have been invited to give testimony.  Here are a few of the points I’ll make.

Pick now, or wait?  Given that we know we will have a new mayor in less than a year, Mayor Ravenstahl should strongly consider staying with an acting chief, and allowing the new mayor to select the new chief.  Since there is a reasonable chance that the new mayor will simply prefer to have his or her own chief running the department, we should wait.

Insider or outsider?  Candidates from inside and outside the department each have their advantages.  Insiders would know the lay of the land, and would bring continuity.  An outsider would bring fresh eyes to the situation and might be more willing to make needed changes.  Ultimately, it depends on whether we think the department should continue heading down the same path, or should get a fresh perspective from the top down.  I would hesitate to rule out any excellent inside candidate, but with the ongoing investigation, a fresh perspective seems necessary.

Integrity is paramount.  With the ongoing scandal, nothing is more important than restoring the reputation of the agency in the eyes of the public.  For that reason, the next chief must be not only a very good police officer and a strong leader, but a person of unquestioned integrity.

Experience is key.  This is not the time for someone to learn on the job how to be a chief and an administrator.  Whoever is picked should have experience as a chief or deputy chief in a department that is at least half the size of Pittsburgh’s.  The person should also have experience working with communities in the city to meet their goals, and an unquestioned commitment to working as partners with citizens as part of real community policing.

Diversity in the ranks.  I’ve been working with the Pittsburgh Police command staff for some years, as well as a number of other departments in our county.  There is universal agreement among them that their agencies do not have sufficient racial, ethnic, or gender diversity.  There is strong disagreements about how to become more diverse. Nevertheless, the next chief must bring a rock-solid commitment to diversity in the ranks, and a willingness to closely re-examine current recruitment and hiring practices.

Process cannot be ignored.  The search should be real (not wired for an insider), and must be nationwide.  And it should include input from a citizen’s advisory board formed for this purpose, which would interview all of the final candidates and give the mayor feedback on them.

Those are my six crucial considerations.  What would yours be?

DNA Testing and Privacy: the Maryland v. King Argument in the Supreme Court

In yesterday’s post, I discussed Maryland v. King.  Those arguments,  heard at the Court on February 26, considered whether a state should be permitted to take a DNA sample from every person arrested (not convicted — arrested) for a felony.  I asked in my post that we put questions of  individual privacy aside, and instead ask whether such wide sampling would be a good idea from a crime-solving point of view.  (Some experts do not think so, as discussed in the post.)

Today, let’s put the question of privacy back into the equation, because that appears to be what the Justices will do.

In his recap of the Feb. 26 argument, Scotusblog’s Lyle Denniston tells us that the key points were posed by two of the Court’s conservative justices.  According to Denniston, Justice Samuel Alito clearly favored the idea that law enforcement should be able to take these samples.  DNA sampling “is the 21st century fingerprint” Alito said at least twice.  According to his way of thinking, there is no constitutional difference (in terms of the degree of intrusion on individual privacy) between taking a fingerprint and taking a DNA sample.

The other pole of the argument was taken up by conservative icon Justice Antonin Scalia.  When the lawyer for the state of Maryland used a long list of cases solved through DNA testing to support her argument in support of the law, Justice Scalia reacted forcefully.  According to the National Law Journal:  “Well, that’s really good!” Scalia exploded. “I’ll bet if you conducted a lot of unreasonable searches and seizures, you’d get more convictions, too. That proves absolutely nothing.”  In other words, the question isn’t whether the state’s action solves cases; some methods of solving cases are simply not allowed under the Constitution, even if they could be proven to work better than others.  The question is whether the Constitution — in this case, the Fourth Amendment’s prohibition of unreasonable searches — allows the state to do what it wants to do.

During Tuesday’s argument, Justice Alito commented that King could be “the most important criminal procedure case this Court has had in decades.”  That will depend on how the Court decides the case, which it will do sometime before the end of June.  But one thing we do know:  the debate between law enforcement’s desire to use all the tools it can to fight crime and the Constitution’s protections of the individual against state intrusion will go on.

Put Privacy Aside: Is Collecting DNA From Every Arrested Person a Good Idea?

Today the U.S.  Supreme Court hears arguments in Maryland v. King, the Court’s latest foray into  DNA testing.  Most reports have focused on the clash between law enforcement’s desire to test every arrested person in order to try to solve old cases, and those who advocate for a strict interpretation of the Fourth Amendment’s protection of privacy.  For example, a report by the excellent Nina Totenberg of National Public Radio discussed the positions of police, who believe taking a sample from every person arrested is a minimal intrusion that can have a big payoff, and the arguments of defense attorneys and civil libertarians, who feel that allowing testing of all arrestees would surrender the basic principles of the Fourth Amendment’s protection against unlawful searches and seizures.

But there’s a question that may be far more important: from a crime fighting point of view,   is it a good idea for police to take and process a DNA sample for everyone who gets arrested?   Of course there will be some cases — such as the King case itself — in which the time-of-arrest sample leads to an arrest for a different, serious crime.  But taking samples from every arrestee may actually hurt our efforts to use DNA most effectively to make ourselves safe.  According to an article in Slate by Brandon Garrett and Erin Murphy, real public safety gains from DNA lie not with taking samples from every jaywalker and burglar and hoping for a hit in a cold case, but instead in taking many more samples from crime scenes.  In other words, we get more hits when we process samples from active crime scenes and match them against our already-large DNA database, instead of fishing for leads among the whole population of more than 12 million people arrested every year.  And all of those additional samples from arrestees crowd out and slow down the processing of samples from real crime scenes and victims, creating backlogs.  In other words, bigger DNA databases is not the answer to crime.

[B]igger is only better if DNA databases grow in the right way: by entering more samples from crime scenes, not samples from arrestees. DNA databases already include 10 million-plus known offender profiles. But a database with every offender in the nation cannot solve a crime if no physical evidence was collected or tested.  And police collect far too few such samples….The police solve more crimes not by taking DNA from suspects who have never been convicted, but by collecting more evidence at crime scenes.  Even worse, taking DNA from a lot of arrestees slows the testing in active criminal investigations….Backlogs created by arrestee DNA sampling means that rape kits and samples from convicted offenders sit in storage or go untested.

The bottom line: even if the Supreme Court says we can take a sample from every person arrested, doesn’t mean we should.

 

Guilty Verdict Against PA State Supreme Court Justice: Should She Have Testified?

Today a jury in Pittsburgh found PA Supreme Court Justice Joan Orie Melvin guilty of misuse of public employees in her judicial campaigns.  Here’s the story.  Also convicted was her sister and administrative assistant, Janine Orie.  A third sister, former state senator Jane Orie, was convicted previously of similar violations in a separate trial.

Last week, at the conclusion of the defense case, Justice Orie Melvin told the court that she would not testify in her own defense.  This had many people asking why, and those questions are sure to intensify now that she has been found guilty.  Was it a mistake for her to refuse to take the stand?

My short answer is no: I think she didn’t testify because she and her lawyers recognized it would have been a very bad idea.  In brief, here’s why.

The bottom line is that the defendant doesn’t just get up on the stand and tell her story.  The defendant gets cross-examined, too.  And a good cross-examiner can make any defendant, innocent or guilty, look untruthful, evasive, or downright criminal.  In addition, if the defendant has ever been convicted of another crime, the prosecution can usually (not always) trot it out to impeach the defendant.

So the decision on whether or not to testify requires a balancing of risks: the risk that the jury members will say to themselves (though they are not supposed to, since the defendant is presumed innocent) “if she wasn’t guilty, she would have testified,” versus the very substantial downside risks of cross-examination.  There are a few types of cases in which there is no choice: the defendant MUST testify (e.g., a self-defense case in which only the defendant survives and claims that he was in fear of the attacking victim, with no other witnesses present.) But my own experience as a defense lawyer was that almost always, defendants damaged their cases, often severely, when they testified.  And if the judge thought the defendant lied while testifying, the judge imposed a harsher sentence.

My interview yesterday on WESA public radio’s Essential Pittsburgh show explains all of this in depth.  You can listen to it by clicking here and then clicking on the audio bar below the phrase “Testifying in Your Own Defense.”