Saturday, May 5, 2012
Monday, April 2, 2012
Supreme Court 'Strip Search' decision strikes a blow against personal privacy and constitutional rights of citizens arrested for minor offenses.
George Clooney was recently arrested along with his father for their part in a protest outside the Sudanese Government Embassy. Clooney, when asked about the arrest was quoted as saying, "It's actually a humiliating thing to be arrested no matter what you do, but I'm proud to be standing here with my father..." The reality of an arrest is always humiliating. The police have the power to physically prevent your movement; to handcuff you; to transport you away from a scene in a marked police vehicle with lights flashing and sirens screaming on the basis of their determination that you have broken the law. People oftentimes spend at least a night or two in jail prior to their release after such an arrest and regardless of the minimal nature of the offense charged; the experience takes a certain toll.
Now imagine that Mr. Clooney, after peacefully demonstrating was not only arrested; but was also subjected to a strip search by corrections officers and in front of other inmates prior to an entry into a pretrial detention center. With today's Supreme Court decision in Florence v. Board of Chosen Freeholders of the County of Burlington et al., any person, arrested for any reason, minor non-drug/ non-violent offense, civil offense, etc. could be subjected to a visual strip search prior to their entry into the general population of any jail/pre-trial detention center. So, what, exactly, is a visual strip search? According to a prison manual referenced in a 2003 New York Federal case and cited by the dissenting opinion in this case; a strip search is:
That description would make most of us cringe, but to the majority in today's opinion, such searches are now warranted for every single person entering the general jail population even if they have been arrested for the most minor, non-drug/non-violent offense and without any showing of reasonable suspicion that such an intrusive search is necessary. The petitioner, Albert Florence, in this case was arrested on a warrant from a prior traffic stop which had resulted in a fine. The warrant was issued when he failed to appear for a hearing to enforce the unpaid portion of the fine. He did in fact pay the remaining balance of the fine after the warrant was issued; however, an error within the court system failed to erase the warrant. So, years later, during a routine traffic stop, he was taken into custody based on the incorrectly outstanding warrant. Although the matter was eventually cleared; Mr. Florence was subjected to two different visual strip searches at Burlington County Detention Center in New Jersey and Essex County Correctional Facility.
The majority opinion claims that the safety concerns of jails justify the intrusion on our civil rights; but as the dissent so rightly points out, they simply lack the actual empirical data to prove that these types of strip searches in all cases are necessary to maintain security and order in our nation's jails. Justice Breyer writing for the dissent makes the point that metal detectors; pat-frisks; mandated showers with delousing agents (to protect inmate populations and officers from lice infestations); and searches of clothing are already being used to detect the potential contraband, illness, and tattoos signifying gang affiliation of a new inmate in the name of facility safety and security. The heightened level of intrusion of a visual strip search is not necessary to maintain those standards of facility security. The dissent cites a California case which showed that of 75,000 new inmates who were strip searched over a five year period, only 16 searches led to the discovery of contraband and in 13 of those searches the contraband found would also have been detected during a patdown or search of shoes/outer clothing. So contrary to Justice Kennedy's apparent belief; the majority of citizens who are arrested and detained unexpectedly on minor matters are not secreting weapons and/or drugs inside their nether regions.
It is interesting that two of the examples that the majority uses to make the claim that even those arrested for non-violent offenses may be harboring some more deviant and dangerous tendencies are both emotional and fear-laden cases of terrorism on U.S. soil. The majority states that Timothy McVeigh; the Oklahoma City bomber, was stopped hours after the bombing for driving without a license plate and that one of the 9/11 terrorists received a speeding ticket just two days before the tragic and deadly events. Although what good a strip search would have done in either situation is unclear; the majority uses these two events to help create a justification for civil liberty intrusions based on fear rather than rationale. We have seen this time and time again when it comes to the woefully ineffective and overzealous Transportation Security Administration and today's decision strikes yet another blow against constitutional rights in the name of fear and governmental overreaching. Read the entire Supreme Court opinion here
For more information on Clooney's arrest and why he was protesting the Sudanese Government watch his interview on PBS Newshour here.
Now imagine that Mr. Clooney, after peacefully demonstrating was not only arrested; but was also subjected to a strip search by corrections officers and in front of other inmates prior to an entry into a pretrial detention center. With today's Supreme Court decision in Florence v. Board of Chosen Freeholders of the County of Burlington et al., any person, arrested for any reason, minor non-drug/ non-violent offense, civil offense, etc. could be subjected to a visual strip search prior to their entry into the general population of any jail/pre-trial detention center. So, what, exactly, is a visual strip search? According to a prison manual referenced in a 2003 New York Federal case and cited by the dissenting opinion in this case; a strip search is:
"'a visual inspection of the inmate's naked body. This should include the inmate opening his mouth and moving his tongue up and down and from side to side, removing any dentures, running his hands through his hair, allowing his ears to be visually examined, lifting his arms to expose his arm pits, lifting his feet to examine the sole, spreading and/or lifting his testicles to expose the area behind them and bending over and/or spreading the cheeks of his buttocks to expose his anus. For females, the procedures are similar except females must in addition, squat to expose the vagina.'" Dodge v. County of Orange, 282 F. Supp. 2d 41 (SDNY 2003).
That description would make most of us cringe, but to the majority in today's opinion, such searches are now warranted for every single person entering the general jail population even if they have been arrested for the most minor, non-drug/non-violent offense and without any showing of reasonable suspicion that such an intrusive search is necessary. The petitioner, Albert Florence, in this case was arrested on a warrant from a prior traffic stop which had resulted in a fine. The warrant was issued when he failed to appear for a hearing to enforce the unpaid portion of the fine. He did in fact pay the remaining balance of the fine after the warrant was issued; however, an error within the court system failed to erase the warrant. So, years later, during a routine traffic stop, he was taken into custody based on the incorrectly outstanding warrant. Although the matter was eventually cleared; Mr. Florence was subjected to two different visual strip searches at Burlington County Detention Center in New Jersey and Essex County Correctional Facility.
The majority opinion claims that the safety concerns of jails justify the intrusion on our civil rights; but as the dissent so rightly points out, they simply lack the actual empirical data to prove that these types of strip searches in all cases are necessary to maintain security and order in our nation's jails. Justice Breyer writing for the dissent makes the point that metal detectors; pat-frisks; mandated showers with delousing agents (to protect inmate populations and officers from lice infestations); and searches of clothing are already being used to detect the potential contraband, illness, and tattoos signifying gang affiliation of a new inmate in the name of facility safety and security. The heightened level of intrusion of a visual strip search is not necessary to maintain those standards of facility security. The dissent cites a California case which showed that of 75,000 new inmates who were strip searched over a five year period, only 16 searches led to the discovery of contraband and in 13 of those searches the contraband found would also have been detected during a patdown or search of shoes/outer clothing. So contrary to Justice Kennedy's apparent belief; the majority of citizens who are arrested and detained unexpectedly on minor matters are not secreting weapons and/or drugs inside their nether regions.
It is interesting that two of the examples that the majority uses to make the claim that even those arrested for non-violent offenses may be harboring some more deviant and dangerous tendencies are both emotional and fear-laden cases of terrorism on U.S. soil. The majority states that Timothy McVeigh; the Oklahoma City bomber, was stopped hours after the bombing for driving without a license plate and that one of the 9/11 terrorists received a speeding ticket just two days before the tragic and deadly events. Although what good a strip search would have done in either situation is unclear; the majority uses these two events to help create a justification for civil liberty intrusions based on fear rather than rationale. We have seen this time and time again when it comes to the woefully ineffective and overzealous Transportation Security Administration and today's decision strikes yet another blow against constitutional rights in the name of fear and governmental overreaching. Read the entire Supreme Court opinion here
For more information on Clooney's arrest and why he was protesting the Sudanese Government watch his interview on PBS Newshour here.
Sunday, March 18, 2012
When hard cases make bad law: Why the Rutgers Conviction is Wrong
There is an old and oft repeated saying, heard among lawyers and judges, that hard cases make bad law. The recent tragedy at Rutger's University where a young man, Tyler Clementi, took his own life after learning that his roommate had secretly taped him kissing an older man, is just such a case.
The tragic loss of what seemed to have been a gifted and sensitive young man has been compounded now with the conviction of his roommate, Dharun Ravi, on bias intimidation, invasion of privacy and other charges. The case against Ravi was not a strong case for bias intimidation or any type of hate crime charged. It was also not a typical case of bullying. There was no evidence that Ravi directly belittled Clementi, threatened him, hurled epithets at him on a regular basis or engaged in any other verbal or physical intimidation. When Clementi requested a room change after finding out that Ravi had spied on him via his web cam, Ravi text messaged him to say he knew he was gay and that it didn't bother him.
Whether Ravi was in fact comfortable with his roommate being gay is not even the issue. He need not have been comfortable with the sexual activity going on in a shared dorm room; just as any young college roommate might not be comfortable with their roommate's gay or straight nocturnal activities. For some young people getting kicked out of their dorm by a roommate who is having sex is a rite of passage or a mere annoyance. Yet for others, the idea that a roommate may be engaged in sexual activity in their shared room could upset them; the idea that an older individual might be engaging in sexual activity in their room with a roommate might even be considered shocking.
The man who was Clementi's guest and who was seen by Ravi on the webcam was 32 years old; over ten years older than both Clementi and Ravi. There was no evidence that Ravi threatened Clementi with any webcam footage and in fact the footage that showed Clementi and the older man kissing was only ever seen by a handful of other students. Contrary to earlier reports, there was never any video showing the two engaged in sexual intercourse. Clementi was said to have checked Ravi's twitter feed approximately 38 times prior to his suicide; an act that was attributed to his fear of what he might say about his interactions with this older male. The fact that Clementi ultimately took his life makes this a terribly sad fact, but one that still doesn't show any intentional act on Ravi's part to instill that fear and intimidation in Clementi.
The identity of the older male in Clementi and Ravi’s room has been protected throughout this case and yet isn’t it just as easy to find potential fault with him and his actions? If he remains insistent on maintaining his privacy and anonymity isn’t it at least possible that he was the one putting pressure on Clementi when he heard that his roommate had ‘caught’ them on his webcam? A 32-year-old male who needed to hide the fact that he was meeting a 19-year-old male student for sex in his dorm room could be very insistent and even intimidating regarding the protection of his own anonymity. Why did prosecutors work so hard to keep his identity a secret?
Doesn’t Ravi, and each one of us, retain at least some first amendment rights to freedom of speech? Are college students who report on twitter about who Sally went home with after the party last night in violation of some law now if it turns out that Sally is devastated by the news of her sexual exploits reaching the masses? One of the jurors was reported after the verdict commenting on the dangers of posting on twitter and Facebook for her own children and how she would now advise them to be so much more careful of what they say. This creates an unreasonable burden on freedom of speech and strains the legal definitions of 'bias intimidation', 'hate crime' and 'invasion of privacy'. Clementi was a roommate in a shared dorm room; he never had any rights to private and exclusive use of the room and his roommate could have legally and rightfully walked into the room that they shared at any time. Ravi's observation of his roommate, although obtained by web cam, was also an observation of his own room; something he had a legal right to do just as a homeowner can install a 'nanny cam' or other hidden camera to secure and observe their own legal premises.
The prosecutors and the jury made an unsupported leap from the facts to the law in a case that was widely touted as a banner case against cyber bullying and homophobia. In reality, the case had little to do with either concept, as there wasn't any real evidence of either bullying or homophobia presented. If Ravi had simply walked in on Clementi and his date while they were being intimate and expressed shock what would have occurred? If he had then tweeted or posted on facebook or simply told his friends what he saw, isn't it possible that Clementi, if he had a sufficiently sensitive mindset and was otherwise troubled, would feel the same potential humiliation and seek the same drastic and terrible 'solution'? The overreaching of the New Jersey hate crime legislation in this case is dramatic and should be appealed before it becomes a standing precedent for a new line of cases where tragedy only begets more tragedy and where ordinary free speech is subjected to chilling new constraints.
The tragic loss of what seemed to have been a gifted and sensitive young man has been compounded now with the conviction of his roommate, Dharun Ravi, on bias intimidation, invasion of privacy and other charges. The case against Ravi was not a strong case for bias intimidation or any type of hate crime charged. It was also not a typical case of bullying. There was no evidence that Ravi directly belittled Clementi, threatened him, hurled epithets at him on a regular basis or engaged in any other verbal or physical intimidation. When Clementi requested a room change after finding out that Ravi had spied on him via his web cam, Ravi text messaged him to say he knew he was gay and that it didn't bother him.
Whether Ravi was in fact comfortable with his roommate being gay is not even the issue. He need not have been comfortable with the sexual activity going on in a shared dorm room; just as any young college roommate might not be comfortable with their roommate's gay or straight nocturnal activities. For some young people getting kicked out of their dorm by a roommate who is having sex is a rite of passage or a mere annoyance. Yet for others, the idea that a roommate may be engaged in sexual activity in their shared room could upset them; the idea that an older individual might be engaging in sexual activity in their room with a roommate might even be considered shocking.
The man who was Clementi's guest and who was seen by Ravi on the webcam was 32 years old; over ten years older than both Clementi and Ravi. There was no evidence that Ravi threatened Clementi with any webcam footage and in fact the footage that showed Clementi and the older man kissing was only ever seen by a handful of other students. Contrary to earlier reports, there was never any video showing the two engaged in sexual intercourse. Clementi was said to have checked Ravi's twitter feed approximately 38 times prior to his suicide; an act that was attributed to his fear of what he might say about his interactions with this older male. The fact that Clementi ultimately took his life makes this a terribly sad fact, but one that still doesn't show any intentional act on Ravi's part to instill that fear and intimidation in Clementi.
The identity of the older male in Clementi and Ravi’s room has been protected throughout this case and yet isn’t it just as easy to find potential fault with him and his actions? If he remains insistent on maintaining his privacy and anonymity isn’t it at least possible that he was the one putting pressure on Clementi when he heard that his roommate had ‘caught’ them on his webcam? A 32-year-old male who needed to hide the fact that he was meeting a 19-year-old male student for sex in his dorm room could be very insistent and even intimidating regarding the protection of his own anonymity. Why did prosecutors work so hard to keep his identity a secret?
Doesn’t Ravi, and each one of us, retain at least some first amendment rights to freedom of speech? Are college students who report on twitter about who Sally went home with after the party last night in violation of some law now if it turns out that Sally is devastated by the news of her sexual exploits reaching the masses? One of the jurors was reported after the verdict commenting on the dangers of posting on twitter and Facebook for her own children and how she would now advise them to be so much more careful of what they say. This creates an unreasonable burden on freedom of speech and strains the legal definitions of 'bias intimidation', 'hate crime' and 'invasion of privacy'. Clementi was a roommate in a shared dorm room; he never had any rights to private and exclusive use of the room and his roommate could have legally and rightfully walked into the room that they shared at any time. Ravi's observation of his roommate, although obtained by web cam, was also an observation of his own room; something he had a legal right to do just as a homeowner can install a 'nanny cam' or other hidden camera to secure and observe their own legal premises.
The prosecutors and the jury made an unsupported leap from the facts to the law in a case that was widely touted as a banner case against cyber bullying and homophobia. In reality, the case had little to do with either concept, as there wasn't any real evidence of either bullying or homophobia presented. If Ravi had simply walked in on Clementi and his date while they were being intimate and expressed shock what would have occurred? If he had then tweeted or posted on facebook or simply told his friends what he saw, isn't it possible that Clementi, if he had a sufficiently sensitive mindset and was otherwise troubled, would feel the same potential humiliation and seek the same drastic and terrible 'solution'? The overreaching of the New Jersey hate crime legislation in this case is dramatic and should be appealed before it becomes a standing precedent for a new line of cases where tragedy only begets more tragedy and where ordinary free speech is subjected to chilling new constraints.
Sunday, June 19, 2011
A Fight Worth Ending: Why The War On Drugs Should End.
This is not a war on drugs, this is a war on people and the people have to call for its end. It is hypocritical and racist for our government to attack the minority and poorer populations for drug use/sale when we see the use and abuse in every level of society. Illegal drug use appears in every profession, in positions of trust within our government, and across all races and socioeconomic categories. Drugs are not destroying our society; our reaction to illegal drugs within minority communities are destroying our society and the people's trust in the criminal justice system.
Marijuana arrests for minor possession in NYC have skyrocketed in recent history. The majority arrested are African American and Latino youth; yet the largest users of marijuana are young white males. Cocaine is purchased by wealthy wall street brokers, lawyers, doctors and other 'white collar' professionals and used in the most expensive and elite clubs, restaurants and homes of Manhattan. Are the largely minority dealers who sell to these privileged adults really to blame for their use and/or abuse of a chosen narcotic? More and more respected and intelligent members of society are advocating for the legalization of marijuana, calling into question why we deem certain drugs, like alcohol, acceptable for use and others illegal and forbidden.
These heightened numbers of drug arrests and political rhetoric regarding splashy 'large scale' drug arrests actually come about in an atmosphere of reduced violent crime, prison closings and budget cuts. We don't need more police, more laws, and more enforcement; we can actually do with much less. This should be a positive, and is, except to those who stand to benefit from prosecutions and incarcerations. The day my business shrinks because no one is being arrested for illegal drugs anymore will be a welcomed day of great significance. It will mean we have finally given our minority and low income citizens a fighting chance rather than fighting them.
Marijuana arrests for minor possession in NYC have skyrocketed in recent history. The majority arrested are African American and Latino youth; yet the largest users of marijuana are young white males. Cocaine is purchased by wealthy wall street brokers, lawyers, doctors and other 'white collar' professionals and used in the most expensive and elite clubs, restaurants and homes of Manhattan. Are the largely minority dealers who sell to these privileged adults really to blame for their use and/or abuse of a chosen narcotic? More and more respected and intelligent members of society are advocating for the legalization of marijuana, calling into question why we deem certain drugs, like alcohol, acceptable for use and others illegal and forbidden.
These heightened numbers of drug arrests and political rhetoric regarding splashy 'large scale' drug arrests actually come about in an atmosphere of reduced violent crime, prison closings and budget cuts. We don't need more police, more laws, and more enforcement; we can actually do with much less. This should be a positive, and is, except to those who stand to benefit from prosecutions and incarcerations. The day my business shrinks because no one is being arrested for illegal drugs anymore will be a welcomed day of great significance. It will mean we have finally given our minority and low income citizens a fighting chance rather than fighting them.
Tuesday, June 14, 2011
Kentucky v. King, or, how the Supreme Court thinks people should respond when the police bang on their door...
The Honorable Barry Kamins gave a great update on New York Search and Seizure Law last night; one key Supreme Court case on the topic was Kentucky v. King, which states the Courts' test for warrantless searches in 'exigent circumstances'. The case involved a pursuit of a suspect who disappears into an apartment building leaving the police, who are following closely behind, to decide which of two apartments the man has entered. They smell marijuana coming from one apartment and bang on the door shouting, "Police, police, police!" No one comes to the door in response but the officers claim they hear the sounds of people moving and items being moved about. Determining that criminal evidence is about to be destroyed they announce they are coming in and knock down the door and enter the apartment. The suspect they were originally chasing is, of course, not in this apartment at all, however they do find a few people, one smoking marijuana, as well as visible quantities of marijuana and cocaine inside. In their decision determining whether the police created the exigent circumstances of the sounds of evidence possibly being destroyed, thereby nullifying the exception and creating a suppressible search, the court looked to whether the police violated or threatened to violate the 4th amendment prior to the exigency. The Court framed it's decision finding the warrantless entry by the police to be okay by narrowly focusing on the test to be used to determine when exigent circumstances have been caused by the police. Here, they determined that the occupants of the apartment created the exigent circumstances prompting the police to enter by making the noises which suggested the destruction of evidence rather than answering the door and demanding a warrant or a reason for the police presence. A witty and critical review of the Court's finding and the reality of how everyday citizens interact with the police can be found in Linda Greenhouse's NY Times article, Justice in Dreamland. We as criminal defense attorneys advise people to 'know your rights' when dealing with the police, however, as many cases show us those rights are not always so clear and the black letter of the law versus how it is placed into practice and exercised in the real world is oftentimes quite different. Police have incredible power in our society and sometimes a good offense, such as staying away from situations where the police may question you, obeying laws, etc. is not enough. In that case, a call to your attorney and a great defense is your next best bet!
Friday, June 3, 2011
The Wrong Man
Eyewitness (mis)identification played a key role in my most recent trial where an innocent man was prosecuted and taken to trial on the assumption that an eyewitness correctly recognized him from a momentary interaction with the suspect. Hitchcock fans may recognize the chilling storyline of an innocent man wrongfully accused of a crime because he resembles the actual suspect from "The Wrong Man" starring Henry Fonda. The film was actually based on the true story of Christopher Emmanuel Balestrero, a Bass player at the Stork Club in 1950's New York who was arrested for a series of robberies which he did not commit. Hitchcock's retelling of the musician's harrowing ordeal before the real perpetrator is ultimately caught is no less powerful today than when it was first released. These stories keep unfortunately repeating themselves in our legal narratives with the most press going to those who are freed on DNA evidence after decades in custody. How many others languish in jails without the benefit of DNA to free them? How many others have taken pleas out of fear and live with the consequences and shame of criminal convictions for crimes they did not commit? How many more will there be before our system institutes meaningful and effective reforms to address the most glaring causes of wrongful convictions? Hollywood may continue to retell this tale, but by working together with legislators, prosecutors and police and ensuring that changes take place, we can make more of the stories fictional rather than factual.
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