Due Process and the Disabled

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  1. Avatar LeeEsq says:


  2. Avatar Kazzy says:

    “…people with developmental disabilities ‘are often overwhelmed by police presence’.”

    Fixed it.

    More seriously, everything you said here should be obvious to folk. That it is not is deeply concerning.

    Of course, there is the alternative to people with D/ID being so eager-to-please the police…

  3. Avatar Mad Rocket Scientist says:

    It’s not about justice, it’s about conviction records & rates.Report

    • Avatar LeeEsq in reply to Mad Rocket Scientist says:

      This. This is why the DA should not be an elected position. It won’t solve all the problems but atl least it would take away the political pressure to get a high conviction rate. Lets not let the peope off the hook easily either. Most Americans like high conviction rates just fine.Report

      • Avatar Brandon Berg in reply to LeeEsq says:

        So in the case of District Attorneys, democratic selection didn’t work very well? I wonder if this is true of any other political positions.Report

      • Avatar NewDealer in reply to LeeEsq says:


        I’m against elections for judges and district attorneys.

        Elections work fine for legislative and executive positions but not admin or judicial ones.Report

      • Avatar Kazzy in reply to LeeEsq says:

        Well, it depends on what you mean by “work”?

        The will of the people is likely met, perhaps moreso with such a position than most others because of the general bloodlust of the public. Sure, we might raise our fists in outrage over this case, but how many voters will act differently based upon this information?

        It might be said that the system is working VERY well, depending on your criteria.Report

      • Avatar ScarletNumber in reply to LeeEsq says:


        The judiciary is SUPPOSED to be an independent branch of government. I don’t think DA’s or judges should be political positions.

        Say what you want about NJ, but at least we are smart enough to not elect these positions. Not that we are perfect, since we can’t appoint a full Supreme Court because the Senate is too concerned with maintaining balance on the court.Report

      • Avatar Brandon Berg in reply to LeeEsq says:

        @scarletnumber I meant that the other way—democracy fails in a much wider range of situations than acknowledged by Lee’s comments.Report

      • Avatar Murali in reply to LeeEsq says:

        So in the case of District Attorneys, democratic selection didn’t work very well? I wonder if this is true of any other political positions

        Lots, maybe most, possibly all of them.Report

      • This is why the DA should not be an elected position. It won’t solve all the problems but at least it would take away the political pressure to get a high conviction rate.

        I’m hopeful that making the position non-elected would take away some political pressure for a high conviction rate, but I’m not positive that would be the result. Presumably by non-elected, you mean appointed, and again, presumably, appointed by someone who is elected. That someone might run on a tough on crime platform promising to appoint a law and order DA.

        However, maybe that state of affairs would be at least less likely than what obtains now.Report

    • Avatar Will H. in reply to Mad Rocket Scientist says:

      There is no greater right than the right of the state to obtain a criminal conviction, by any means necessary to do so. Suborning perjury, falsifying evidence, threatening jurors– any manner of thing whatsoever is permissible provided that a conviction is obtained in the end.
      All that crap about the citizens having rights detailed in the first ten amendments? Disposable.
      The rights of citizens are completely arbitrary when compared to the rights of the states.Report

  4. Damn. Thanks for bringing this to our attention James. I looked into some previous articles written on it, and it just gets worse.

    For instance, it seems that the confession itself was never recorded. It’s also admitted that Sanford pretty swiftly approached the cops to say that he knew what happened while they were still at the scene of the crime.


    Your article also indicates that Smothers initially pleaded his Fifth Amendment right against self-incrimination when the issue was first raised. While that’s not evidence against Smothers himself, I fail to see why it would not be admissible evidence of Sanford’s innocence. I’m also appalled that the trial judge’s explanation for not giving weight to Smothers’ subsequent confessions (and indeed, the testimony of Smothers’ own lawyer after he released her from attorney-client privilege) is that Smothers had the opportunity to come forward earlier – how is whether Smothers had such an opportunity relevant? What’s relevant is whether Sanford had access to that evidence, and clearly he didn’t since Smothers pleaded the Fifth.

    One other thing that I find strange – everyone seems to agree that Sanford approached the police to tell them what happened, but I can’t find any record of what he actually told them at that time, only that after he was taken into custody they got him to confess.

    Also – Sanford is blind in one eye.Report

  5. Avatar NewDealer says:


    I would argue that society as never really figured out how to treat the mentally ill and disabled especially when they do commit crimes. This is not a comment on the case above but rather an acknowledgement that sometimes mental illness causes people to commit crimes. Last year two people were pushed to their deaths on the NYC subway tracks. In both cases, the alleged pusher had long histories of mental illness.

    We have not yet decided on what level of mental illness or disability should absolve a person of a crime, or if it should absolve them at all. A lot of people seem to think the bar should be very high. An equal number of people think the bar should be lower to the old Bazelon standard of no liability if the crime was the product of a mental disease or defect.

    The sad truth is that we probably use prison as a way of keeping the mentally ill and disabled out of sight and out of mind.Report

    • Avatar Murali in reply to NewDealer says:

      This is because there is a real difficulty with determining what amount of illness genuinely impairs volition in such a way as to nullify culpability. The laxness in the way DSM guidelines are drawn up is does not help either.

      I am not sure whether there is an in principle public way of dealing with the problem either. Often this is because there is no clear dividing line between cases where a person is not in fact responsible because of his mental illness and cases in which the person is still responsible.Report

  6. Avatar Mike Schilling says:

    “Meanwhile, the DA’s office maintains that the signed confession, eyewitness testimony, gunpowder residue, DNA evidence, videotape of Mr. Benford shooting Mr. Ashton, and Mr. Ashton’s dying declaration that ‘Benford killed me, just like he said he would in those two dozen letters I showed the police’ are irrelevant, and there are no grounds for reviewing Mr. Sanford’s conviction.”Report

    • Avatar Jaybird in reply to Mike Schilling says:

      How in the bleeping bleep do these people sleep at night?Report

      • Avatar Mike Schilling in reply to Jaybird says:

        And if one is overturned, they don’t even say “I apologize if anyone was offended by unjustly being sentenced to die.”Report

      • Avatar Jaybird in reply to Jaybird says:

        I mean, I’m going through my list of “Reasons I Want To Be A DA” and there’s the whole “hoping for justice” crap, “revenge against criminals” crap, and even the “eh, they were hiring and I kept getting promoted and one day I woke up here” crap but none of them gets me to the mindset where I don’t freaking care if someone innocent of any crime gets threatened with an LWOP/Death Row by my office.

        And it’s even more alien to me to think that I care BUT IN THE OPPOSITE DIRECTION because I can get a conviction here.

        WHAT THE HELL???Report

      • Avatar Chris in reply to Jaybird says:

        I guarantee you that in the prosecutors’ heads, this works out exactly like it’s supposed to, with the right guy going down for the right crime. The evidence we read as exculpatory, they have good reasons (in their heads) to dismiss, and if we only saw the complete picture, which the biased media is not giving us, we’d agree with their decisions.Report

      • Avatar NewDealer in reply to Jaybird says:

        Jaybird and Chris,

        The problem with that line of thought is that I’ve also seen it applied to public defenders and criminal defense attorneys. As in “How can you defend people you know are guilty of horrible and violent crimes?”

        The standard Public Defender answer is that they are defending the Constitution and the rights of people, the system, etc.

        So people begin see themselves by their titles and roles. This can go to Hannah Arendt’s Banality of Evil thesis. Perfectly reasonable and decent people can do unreasonable and horrible things (in this case wrongful convictions) given the right incentives and other roles.Report

      • Avatar Chris in reply to Jaybird says:

        Oh, I definitely didn’t mean to defend it.Report

      • Avatar Jaybird in reply to Jaybird says:

        I don’t think that Public Defenders have discretion. They provide a vigorous defense (sure) because it is everybody’s *RIGHT* to a vigorous defense according to the Constitution. If you don’t like it, move to Somalia.

        It’s the DA who has enough free will to say “you know what, we’ve got enough evidence here to get me to say that maybe we got a little overzealous in the wake of the tragedy…”Report

      • Avatar morat20 in reply to Jaybird says:

        I get the distinct impression that — among police and DA’s both — there is a real risk of something akin to tunnel vision.

        Somebody looks like a good suspect, the folks investigating it suspect him — whether it’s because of some interesting circumstantial evidence or gut instinct or what — and he/she becomes THE suspect.

        Or rather, he or she becomes guilty and the focus shifts from “finding out who did this” to “how do we send him/her to jail for as long as possible.”

        Unlike TV shows, I don’t think investigators or DAs routinely realize they’re after the wrong guy at the end of Act 1. They just double down on that guy — and really believe he’s the one.

        It’s not…nefariousness or evil. It’s just..human nature. They’re mentally invested in this person being the one, so they look for confirming evidence and discount exculpatory evidence.

        But a lot of the “holy crap, that happened” stories boil down to an investigator “liking” a suspect for the crime from the get-go, and just zeroing in on that suspect to the exclusion of everyone and everything else. I’m not sure how you really train that out of someone. (You see the same problem in science — whose practitioners HAVE training against that. It’s just when you zero in on your pet theory your papers just get mocked, nobody goes to jail. You know, like Hoyle and his steady state stuff)Report

      • Avatar Mad Rocket Scientist in reply to Jaybird says:

        Isn’t that why we have judges, to smack police & DAs upside the head when they get all OCD on the wrong person?Report

      • Avatar morat20 in reply to Jaybird says:

        In a sense, but judges aren’t investigators — and they only know what they’re told about a case. It’s relatively easy for them to spot REALLY obvious tunnel vision if the defense attorney has actual time to deal with the case (which is not the case for those provided to the poor), but they’re not there to nitpick procedure.

        Plus, here in Texas at least — we elect our judges too. They all run on who is tougher on crime. Not kidding.

        It’s a little thing, measured against the scope of a Presidency — but if I were Obama, being involved in forcing video taping of police interrogations when I was just a little state legislator would still be something I considered one of my better achievements.Report

      • Avatar Mad Rocket Scientist in reply to Jaybird says:

        Funny thing, he’s the executive. If he wanted to, he could easily mandate video taping any & all police interactions with the public & suspects. He directly controls so much federal money that goes to local PDs that it would be trivial for him to force the issue.Report

      • Avatar greginak in reply to Jaybird says:

        There are a whole bunch of biases that can bias an investigation or evaluation. It takes a lot to try to avoid them. One way of doing that is to try to form multiple hypotheses about about all the evidence you have. It also helps to have peers criticize your work with an eye towards making it better. My guess is cops and DA’s don’t really do much of either of those things. To some degree DA’s can only work with what cops give them also.

        It is not judges jobs to discipline or supervise DA’s. As noted above, judges only know what they are presented, so they may very well not know about all sorts of stuff that might change how the case is viewed.Report

      • Avatar morat20 in reply to Jaybird says:

        Funny thing, he’s the executive. If he wanted to, he could easily mandate video taping any & all police interactions with the public & suspects. He directly controls so much federal money that goes to local PDs that it would be trivial for him to force the issue.

        If this was 14th Century England and he was the King, sure.

        But he actually can’t do any of that. He *might* be able to force the FBI to do so, per executive order, but I think they already do.Report

      • Avatar BlaiseP in reply to Jaybird says:

        When Obama was a state senator in Illinois, that’s exactly what he managed to get through, mandatory videotaping of interrogations.Report

      • Avatar Mad Rocket Scientist in reply to Jaybird says:


        I’m not talking about a directive to force PDs to do it, I’m talking about the federal money he directly controls that flows to PDs all over the country. All he has to say is no more juicy federal dollars for you unless you start videotaping police/citizen interactions.Report

      • Avatar morat20 in reply to Jaybird says:

        So all he has to do is violate the Constitution?

        Seriously, the President’s discretionary powers over federal money is not what you think it is.

        It’s not even that powerful to purely federal agencies. He has absolutely ZERO authority to arbitrarily deny federal funding like that. Doing so would, flatly, be a rather massive power grab and absolutely unprecedented.

        Congress can — and does! — often tie federal funds like that. But the President can only do it for federal agencies Congress has left him complete discretion over (few, if any — not even the Post Office. I guess the military would be the closest, but it’s not like he can zero out weapons systems he doesn’t like without seeing a crapstorm from Congress) and not at all to state grants!

        You are literally saying “Obama could do it, if he punched Separation of Powers in the teeth and stole it’s lunch money“.Report

      • Avatar Mad Rocket Scientist in reply to Jaybird says:


        See: Warfighter to Crimefighter program (DOD – absolutely under his purvue)

        He can shut off funds sharing from civil asset forfeiture cases.

        He can turn of Byrne & COPS Grants (administered by the DOJ – also under his purvue)Report

      • Avatar morat20 in reply to Jaybird says:

        Yeah, he really can’t.

        Unless the authority to do so is specifically written into those programs, he can’t. Congress isn’t — or at least hasn’t always — been run by flaming morons. They don’t give the Executive that much discretionary power, and what IS given to him is almost exclusively required — by law — to go through the standard decision making process for whatever agency the funds are for.

        But yeah, okay. You just sit there and claim the President has this broad executive authority to zero out spending to force local and state governments to dance to his tune, one that no President has ever actually noticed even though Congress does it all the time.

        It must be a weird mental block, that occurs only to people in the Oval Office. They all weirdly thing Congress holds that power, that Congress doesn’t give them that much leeway, and frankly that Congress would give up that power when you pried it out of their cold, dead, grubby little hands…

        Crazy presidents!Report

      • Avatar Shazbot3 in reply to Jaybird says:

        I would suspect Congress can’t do that either, certainly not after the SC’s Obamacare decision, where they decided that Congress cannot require that States set up exchanges and expand Medicaid to get their prior legels of federal-transfer Medicaid funds. (They narrowed the coomerce clause.)

        And healthcare and health insurance are at least reasonably construed as “interstate commerce” and thus the federal government has the right to regulate them.

        But police interogations by state police are so far removed from interstate commerce that I cannot see how the SC would say that the feds have any power to withdraw previously promised federal transfer funds to influence state policy. (There will be a similar battle over marijuana policy, though at least marijuana sales are plausibly interstate commerce.)Report

      • Avatar BlaiseP in reply to Jaybird says:

        Obama’s most potent weapon is the bully pulpit. He could generate enough Headline Heat under this issue, pointing out how he managed to get this done in Illinois with bipartisan support.Report

      • Avatar morat20 in reply to Jaybird says:

        Why would he? While I think it’s a great accomplishment — and so, according to what I’ve read, so does he — why would he use political capital that way?

        I mean, the guy’s obviously not a libertarian, but that’s not exactly a federal issue. Now, the fact that apparently the FBI doesn’t record interrogations? I can lay that on him, that’s certainly WELL within his purview and powers to order.

        Then again, I suspect little stuff like that gets…lost…in the Presidency. Never thought of, doesn’t come up in meetings — I mean, heck, what are the odds he even knows what the FBI policy is?

        Sure, he can ask and 30 seconds later he’ll have an answer and 20 minutes later could have the head of the FBI on the carpet — but why would it come up?

        I doubt over use of SWAT and police brutality ever actually comes up in meetings. Like…ever. Not until it’s in the news — over and over.Report

      • Avatar Stillwater in reply to Jaybird says:

        All he has to say is no more juicy federal dollars for you unless you start videotaping police/citizen interactions.

        I still can’t quite get my mind around the fact that I live in a country where videotaping cops is illegal.Report

      • Avatar Mad Rocket Scientist in reply to Jaybird says:

        Funny, seems to me that over the past 20 years or so, congress can’t seem to abdicate enough authority to the executive.

        Now, from what I’ve read (& IANAL, so I may have this wrong), congress sets the funding for the programs, but the ultimate dispensation of those funds rests with the DOJ or DOD, & thus the president. Now if he was to create such a rule, it is more than likely congress would agitate to over-rule his decision, & would attach such language to the next funding bill. Still, he can make a change right now & use his bully pulpit to agitate for it to be permanent.

        But you are right, it probably doesn’t come up. Except it’s a topic he cared about enough as a Senator to make it happen in IL. I think you are right, he doesn’t want to spend the political capital to make it happen.Report

    • Avatar NewDealer in reply to Mike Schilling says:


      DAs have a problem that most people have. Most of us generally really don’t like to admit we are wrong. I mean we really, really dislike it. We tend to double down rather than say “mea culpa”.

      The problem is that when DAs do this, there is a wrongfully convicted persons whose life and liberty hangs in the balance.

      Perhaps there is something to the concept of Saving Face and allowing people to correct or admit to their mistakes while not punishing them too hard.Report

      • Avatar Michael Cain in reply to NewDealer says:

        Does anyone know whether the DA (the elected official) reviews all the things the assistant DAs (hired staff) are doing, or are the assistants pretty much off on their own?Report

      • Avatar NewDealer in reply to NewDealer says:

        District Attorneys and ADAs are held to extra-ethical requirements when it comes to bringing a case. They are not supposed to bring cases if they have doubts or don’t think they can meet their burden of proof. You here stories in the media to this effect every now and then and often to great rage because the stories have some kind of tragic element.

        This is in theory more than reality. It is very rare to hear about a DA or ADA being punished by the ethics committee for violating the Brady Rule or bringing cases that should have been brought to trial. It happens every now and then but rarely. A few years ago an ADA in Santa Clara County was disbarred for Brady violations.

        There was also a Supreme Court case where they ruled against an ADA who expressed doubt on a case and was fired. But this is on free speech grounds. The free speech rights of government employees are interesting:


        From what I know, most intro ADAs and PDs are given misdemeanors and then they are promoted up to more serious crimes. This might be different in more short-staffed districts.

        I think from a psychological stand-point there is also a fair bit of hardening and gallows humor. You see and hear a lot of stuff that most people avoid and you need to be able to divorce yourself from this. I would not want to be an ADA or a PD.Report

      • Avatar Pierre Corneille in reply to NewDealer says:

        But what about the other part of Michael’s question? How closely do DA’s typically oversee and sign off on ADA’s?

        I don’t know the answer, but I imagine it varies.Report

  7. Avatar Patrick says:

    This is one of those cases where use of Executive Privilege along with a rebuke to the DA’s office could restore a lot of faith in the system.Report

  8. Avatar ScarletNumber says:

    This situation sounds completely made up or something out of another country.

    It is scary that there are places in America where this happens.

    ProTip: Never trust a prosecutorReport

      • Avatar Stillwater in reply to Mad Rocket Scientist says:

        Problem with that advice, MRS, is that most people think that’d be rude. And that miscarriages of justice only happen to other people.

        My mother had a wake-up call about this precise issue a few years ago. Driving home from work after having a glass of wine with a friend, she was pulled over. The cop asked her if she’d been drinking and she confessed that she’d had a glass of wine with a friend. Harmless enough to tell the truth, right?

        He pulled her out of the car, cuffed her, threw her in the backseat, took her downtown and locked her up for a time. When they got around to testing her BAC, she passed, so they let her go. Afterwords she told me she never thought something like that could happen to her. Especially in the small town she lived in. I don’t think she’s recovered from the embarrassment of it all.Report

      • Avatar Mad Rocket Scientist in reply to Mad Rocket Scientist says:

        It was the first thing my sensei told me so many years ago. If I ever get into a fight & the police are called, shut up & ask for a lawyer.

        Be very respectful & polite, tell the officer you really want to co-operate, but you want to protect yourself & would like to speak to a lawyer before making a statement.

        The officer will be annoyed, he may arrest you, but for the love of god, shut up until you talk to a lawyer.Report

      • Avatar Stillwater in reply to Mad Rocket Scientist says:

        Exactly. As a matter of strategery, you want to appear accepting of the Process. As a matter of integrity – and common sense, -you want to protect yourself. Don’t talk to cops.

        A friend of mine down near The Border has a strategy for dealing with Border Patrol cops. TO get to “town” – a podunk about 80 miles away – he has to pass through the checkpoint, and this happens a couple times a week. They can ask you if you’re an American citizen, and he answer “yes”. They can ask you where you’re coming from, to which he jerks his thumb back behind him. And they can ask you where you’re going, to which he extends his index finger in the direction of the road he’s on.

        Weird thing is that when he tells other folks about this, they look at him like he’s the asshole.Report

      • Avatar J@m3z Aitch in reply to Mad Rocket Scientist says:

        He should just nid when they ask him if he’s a citizen. Then he can do the whole thing without uttering a word.Report

      • Avatar J@m3z Aitch in reply to Mad Rocket Scientist says:

        “Nid,” of course, should be “nod.” God only knows how the police might respond to someone who nids at them.Report

      • Avatar Stillwater in reply to Mad Rocket Scientist says:

        God only knows how the police might respond to someone who nids at them.

        Cuffs, beat downs for resisting arrest, 72 hours in the hole, pepper spray in the face… Don’t taze me bro!

        I should admit, tho, that I don’t hate cops. I just feel better when they’re not around.Report

      • Avatar Mike Schilling in reply to Mad Rocket Scientist says:

        God only knows how the police might respond to someone who nids at them.

        Shoot his dig.Report

      • Avatar Mad Rocket Scientist in reply to Mad Rocket Scientist says:

        Mike FTW!Report