Wednesday Writs for 3/27

Em Carpenter

Em was one of those argumentative children who was sarcastically encouraged to become a lawyer, so she did. She is a proud life-long West Virginian, and, paradoxically, a liberal. In addition to writing about society, politics and culture, she enjoys cooking, podcasts, reading, and pretending to be a runner. She will correct your grammar. You can find her on Twitter.

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66 Responses

  1. Kolohe says:

    L2 –
    some people: Lee Boyd Malvo was only 17 and criminal laws and procedures treating him as a fully grown adult are unfair and possibly unconstitutional.

    also some people: 16 year olds should be able to vote.Report

    • pillsy in reply to Kolohe says:

      The opposite inconsistency has always been my reason for wanting to lower the voting age.

      If you’re old enough to do the time, you’re old enough to vote on whether it should be a crime.Report

    • Road Scholar in reply to Kolohe says:

      Can we agree that our (societal) concept of age of majority is sort of a mess? I mean… depending on the state, you can enter in an allegedly life-long contract (of sorts) to marry a teenager, while in others you can barely legally have sex with someone that age. Eighteen to vote, join the military, or purchase tobacco (and now some places marijuana). Twenty-one to drink. Until recently you had to be 23 to get a license to operate a big rig across state lines (it’s now 21).

      Admittedly 17 isn’t super young, but I’ve long been troubled by the trend of treating juveniles as adults in the CJS. Given what we know of brain development vis-a-vis judgement and impulse control that trend seems particularly perverse.

      And FWIW I’m not in favor of 16-yr olds voting but I can’t give you good logical reasons pro or con TBH.Report

      • pillsy in reply to Road Scholar says:

        The other thing here is almost all the arguments cited for not letting 16 year olds vote apply to many, many adults.

        How many people would be allowed to vote if we barred people on account of being impulsive, or ignorant, or not having a job, or…Report

        • Road Scholar in reply to pillsy says:

          Right. Well, all these age-based restrictions are allegedly meant to address the question, “Is this person mature enough to make this choice or handle this responsibility?” But people vary and in particular, individuals mature at different rates to different end-points. I just don’t feel that as a society we’ve done a great job of figuring that all out in anything like a consistent, evidence-based, manner.Report

          • Chip Daniels in reply to Road Scholar says:

            Our concept of law demands a series of bright lines, while the natural world has none.

            So any definitions of life/death, human/nonhuman, mature/immature will always contain some arbitrary logic to them.

            I’m not opposed to the arbitrariness per se, but I note that how we adults treat adolescents seems to align most often with how angry or sympathetic to them we happen to be.
            And like everything else, our judgement is tainted by the same biases and prejudice we bring to every issue.Report

          • Maribou in reply to Road Scholar says:

            Age based restrictions on voting in the modern era rest primarily on a different but related concept, the idea that people under a certain age may be under the direction or control of their parent(s) and thus said parent(s) votes will be unfairly weighted because of their number of children.

            However, a similar argument was also used among the arguments against women’s suffrage …. and I’m sure it was unacceptable there.

            To me the two arguments *feel* different, but I’m not sure why …. perhaps they both boil down to an underlying maturity argument.

            I do know that I agree with you that age of majority is a mess.

            If it were up to me voting, as a civic responsibility, would be one of the first rights acquired, and being treated as an adult for criminal and tort purposes one of the last…. chronologically speaking.Report

            • pillsy in reply to Maribou says:

              To me the two arguments *feel* different, but I’m not sure why …. perhaps they both boil down to an underlying maturity argument.

              I think it’s something like that. There may not be a bright line, but it’s pretty easy to see that, say, a three year old who was voting would either be voting randomly or voting as their parents directed.

              If it were up to me voting, as a civic responsibility, would be one of the first rights acquired, and being treated as an adult for criminal and tort purposes one of the last…. chronologically speaking.

              Same here. As rights go, voting is one of the least dangerous, which is one of the reasons I find it a bit odd how hung up we as a society get on the “wrong” people getting the franchise.Report

        • Jaybird in reply to pillsy says:

          This is a seriously draconian policy but I cannot help but see the logic in it.

          We should not leave democracy up to people being impulsive, or ignorant, or not having a job.

          Being a felon might be a good proxy for the first two… maybe we should have “proof of employment” cards provided by the government with every tax return every year? Present them at the voting area to get your ballot.Report

        • Chip Daniels in reply to pillsy says:

          How about we we barred people running for office on account of being impulsive, or ignorant, or not having a job, or…?Report

      • Jaybird in reply to Road Scholar says:

        From what I understand, a lot of families choose to try juvies as adults because it’s cheaper. Trying a minor as a juvie has fines, fines, and more fines. All you get if you try them as adults is jail time.Report

        • Road Scholar in reply to Jaybird says:

          Honestly, this sounds like some shit you just made up. I mean… since when do the families of the accused get to choose whether the case is tried in juvie or adult court?Report

          • Jaybird in reply to Road Scholar says:

            I know about the information from this article:

            The J.L.C. found that the vast majority of states impose some kind of fines on juveniles. The report documents that in twenty states, the law authorizes courts to collect payment from children or their families to cover the cost of probation or supervision. In thirty-one states, the law authorizes courts to collect payment from children or families to pay for testing, whether it be for drugs, DNA, or other blood tests. Meanwhile, forty-seven states charge parents for their children’s involvement in the criminal-justice system, including, in some cases, requiring parents to pay for their children’s incarceration.

            This article talks about the procedure to get a waiver

            I can’t find the article I saw the other day that talked about families negotiating with the court for the kid being tried as an adult so if those two aren’t sufficient, I’ll withdraw the claim.Report

            • pillsy in reply to Jaybird says:

              This seems designed to create conflicts of interest for the parents, which seems to be, ah, not exactly what we should want.Report

              • Oscar Gordon in reply to pillsy says:

                Says you! Those laws are there so parents are held to account for being shitty parents and raising little monsters that they’ve now unleashed upon our peaceful society!

                “end sarcasm”Report

            • Road Scholar in reply to Jaybird says:

              I’m not disputing the business about the fines and such incurred by the family of an accused juvie. I just find the idea of a family being able to negotiate with the court or a prosecutor for a transfer to adult court hard to believe. And yeah, I’ll need a citation for that.Report

              • Em Carpenter in reply to Road Scholar says:

                Not saying Jaybird didn’t read that somewhere, but I will say it’s not something I’ve ever seen happen where I practice (or ever heard of, actually, but that doesn’t mean much.)Report

              • Jaybird in reply to Road Scholar says:

                I don’t know that it’s a “being able to negotiate” as much as a “we can’t afford this! What can we do?” “Well, if I prosecute him as an adult…” thing.

                But, I can’t find the article that talked about this phenomenon so I’ll withdraw the claim.Report

              • Em Carpenter in reply to Jaybird says:

                The thing is, fees and fines and costs don’t go away when charged as an adult. Court costs are hundreds. You can be assessed the costs of your incarceration. You can be fined. You pay fees for being permitted to participate in community corrections programs (probation or house arrest for example). The only difference here is that the financial responsibility is on the kid now, not the parents.Report

              • DavidTC in reply to Em Carpenter says:

                The only difference here is that the financial responsibility is on the kid now, not the parents.

                Luckily, most 17-year olds who have no job, and committed a crime and are now held financially liable for it, do not immediately turn back to crime as literally their only option to make the money to pay off their fines.

                *holds finger to earpiece*

                What? What’s that?Report

  2. Kolohe says:

    L5 – has the US Supreme Court weighed in on this yet? Going from memory, and looking on line, there seems to be many different rulings at the federal level on whether or not a person needs to provide information and/or biometrics to unlock data stored on a device. (and conflicts over whether a company hosting it needs to provide it)Report

    • Road Scholar in reply to Kolohe says:

      Yeah, this one seems headed to SCOTUS to me. Just as a practical matter it’s physically possible to force someone to put their fingertip over the sensor or hold the device up to their face or whatever. But force someone to utter the passcode? Have these people never seen a spy movie?

      I also find the constitutional argument advanced by the state to be strained at best.Report

  3. Road Scholar says:

    L10 is just breathtaking. I mean… I can sorta see the argument that it isn’t exactly a civil rights violation per se, but that just leaves it at a simple crime of theft. Has it actually been established whether the cops did or did not in fact steal the money? If the ruling is essentially saying that cops can just flat out steal shit as long as they flash a badge and/or have a search warrant???Report

    • Em Carpenter in reply to Road Scholar says:

      It appears that the underlying facts have not been adjudicated. The motion that was at the heart of the appeal was based on “the facts, if taken as true”. A qualified immunity argument is to be taken up at the earliest stage and the rubric under which it’s decided is that even if the facts are true, the law would not allow the plaintiff to prevail (in a claim alleging violation of rights under color of law).
      And qualified immunity shields the officers from suit unless the plaintiff has alleged violation of a clearly established constitutional right- which is where the decision in this case goes crazy, in my opinion. And it was unanimous. I need to delve deeper to try to figure out where they are coming from.Report

      • Oscar Gordon in reply to Em Carpenter says:

        Yeah, I’m not sure how they squared that circle around simple theft. Did the cops log the property and claim CAF?Report

        • Road Scholar in reply to Oscar Gordon says:

          NO! That’s the thing here. From what I could glean from the article the cops seized and logged $50,000 (I guess as CAF). The cops are like, “Other money? What other money?”Report

          • Em Carpenter in reply to Road Scholar says:

            Yep, that’s what the plaintiffs allege.
            I have heard this many, many times in my days as a defense lawyer. Watch the Five Seven sometime. This is not a shocking thing, if true.Report

          • veronica d in reply to Road Scholar says:

            Why wouldn’t the cops steal money? What would dissuade them? Morals?


            Like seriously, of course they steal money. That stupidly obvious. Of course they beat suspects. They do what they can get away with, routinely, with near impunity.Report

  4. Road Scholar says:

    Just wanted to say Good Collection of Links today, Em. Lots of meat here.Report

  5. Road Scholar says:

    L3: This just really serves to illustrate how crucial it is to respect for constitutional rights in our CJ system, including the right to a vigorous defense by competent counsel as you outlined in your piece the other day. I don’t know much about the case other than what was written here, but is this guy actually for reals guilty of killing those people? Is there forensic evidence establishing guilt? If so, the prosecutor just insured that real justice will NOT be obtained. And all for being a racist asshat.Report

    • Em Carpenter in reply to Road Scholar says:

      This case has a lot of people who argue for his actual innocence. (One thing his lawyers note is that in the two of his trials where there were some blacks on the jury and no allegations of bias in jury selection, the jury hung both times.)
      I’m not sure about forensic evidence, I haven’t dug in, but as I recall there is at least a lot of circumstantial evidence pointing to his guilt. I think this is one of those cases that had an entire podcast or documentary devoted to it so there are people who claim his actual innocence.Report

  6. LeeEsq says:

    L6: I can vouch from personal experience on the trickinesx of the situation. One of my clients spoke a dialect of a dialect of Chinese. This sub-dialect was on the list of official languages. One of the Chinese interpreters at 26 Fed spoke it. The trial was delayed to get the interpreter officially certified in the sub-dialect. Interpreters of Chinese dialects like Fuzhou are flown through out the United States so Courts have interpreters.Report

    • Em Carpenter in reply to LeeEsq says:

      I tweeted about this earlier this week. It was interesting to me that the article specifically mentioned K’iche- it’s a Mayan language spoken by very few people, mostly Guatemalans.
      I had a client charged with very serious, life-sentence type charges (child sex abuse.) He was from Guatemala and K’iche was his native tongue. At that time, there were TWO K’iche interpreters in the US- both on the west coast. He spoke no English, and just passable Spanish. His statement was taken with the help of a Spanish-speaking state trooper doing the translating-for another trooper.
      The differences between Spanish and K’iche were enough to cause serious issues in his “confession”; for example, he used a Spanish word that meant small child, which translated to a term of endearment for “girlfriend” in Ki’ che, similar to how “baby” is used in English, but unfamiliar to the officer who interpreted. You can imagine how that could lead to some crucial misunderstandings in this type of case, right?
      Because I was court-appointed counsel, I had to ask the court for an order allowing me to hire and get money to pay for a K’iche interpreter- which my client was entitled to, but would be very expensive, given the cross-country flight and all.
      The judge was giving me a hard time and would not give me a ruling in my favor. I think he was trying to wait us out in hopes my client would just plead guilty, which I could not have ethically facilitated, knowing I couldn’t honestly say he understood and thus pleading guilty freely and voluntarily.
      I was prepping a writ of mandamus to the state supreme court when the prosecutor dropped all charges and my client was deported.Report

      • LeeEsq in reply to Em Carpenter says:

        Okay, your client should not have been simply deported unless he had a previous removal order issued against him. If he did not, his case should have been referred to the Immigration Courts because only an Immigration Judge can issue a removal order.Report

        • Em Carpenter in reply to LeeEsq says:

          He was here illegally and had a hold placed on him when he was arrested. I admittedly have no idea what the process was after the charges were dropped and my representation ended. Deported was what was reported to me.Report

  7. Aaron David says:

    L4 – The first time I had jury duty, it was basically for a guy (not a minor) putting a rock on the railroad tracks, in plain sight of a sheriffs deputy. In the course of the two-day trial, we heard expert witnesses who exclaimed that this could derail a train(?), saw a defense attorney whip a ballast rock out of his pocket (later had to be entered into evidence) and I was admonished by the judge for wearing shorts. We, the jury, stated that while the defendant was guilty of stupidity, he was not guilty of any crime. (Yes, we actually said that)

    Later on, I ran into the judge, who confided to me that the whole thing started because the guy did all this, and then flipped off the cop. Of course, they never even tried to present that fact for the prosecution.Report

  8. Stillwater says:

    [L10]: This one’s bizarre and infuriating I need help understanding it.

    Writing for a unanimous court, Judge Milan Smith held that even if police officers did steal (an allegation they repeatedly denied), the two men “did not have a clearly established Fourth or Fourteenth Amendment right to be free from the theft of property seized pursuant to a warrant.”

    Weird, right? But the article *also* quotes the following from the ruling:

    We need not—and do not—decide whether the City Officers violated the Constitution.

    So here’s what I don’t understand: if the court concludes that the plaintiffs did not have a clearly established right against cops stealing their stuff during the execution of the warrant, how can it conclude that it’s not deciding whether the cops violated the plaintiff’s rights? Clearly, from the court’s view, there was no prior right which the cops *could*[1] have violated, right?

    [1] Or more accurately, I suppose, ‘did’ violate.Report

    • Em Carpenter in reply to Stillwater says:

      Hmm. Let me dive in a bit and see if I can figure out what they meant there.Report

      • Em Carpenter in reply to Em Carpenter says:

        OK this is long so bear with me:

        This is what’s called a 1983 claim (because it is brought under US Code chapter 42 section 1983). That is a claim that one’s civil rights have been violated “under color of law”; i.e., through some action of the government or an agent of the government.
        In deciding whether the cops are entitled to qualified immunity from a 1983 claim, the court has two questions to consider:
        1) Whether the cops violated a constitutional right;
        2) Whether that right was clearly established at the time of the alleged violation.
        The Court may decide which of these questions to decide first. If the one they choose is answered negatively, they need not move to the other question.
        Here, they have decided that at the time of the alleged theft, there was no clearly established right- meaning no state statute or court holding that would put the officers on notice that they were violating a civil right by their actions. The court says that there existed no law or case in California that would have alerted the officers that seizing and not returning property while executing a search warrant violated civil rights. Therefore, they stop the analysis and do not have to decide whether the officers’ actions violated that particular right… because it doesn’t exist.
        Get that?
        The court went on to compare the allegations to cases from other jurisdictions where similar claims were brought when property seized pursuant to warrant was not returned, and the circuits are split as to whether or not its a constitutional right violation. Therefore, there is no settled right that the officers should have known they were violating. Quoting the opinion:
        “The Second, Sixth, Seventh, and Eleventh Circuits have held that the government’s failure to return property seized pursuant to a warrant does not violate the Fourth Amendment. Some of these courts have reasoned that because “the word ‘seizure’ [has been] defined as a temporally limited act,” the Fourth Amendment provides protection only against the initial taking of property, not its continued retention.”
        (The Fourth circuit has held otherwise, incidentally.)Report

        • Oscar Gordon in reply to Em Carpenter says:

          So there needs to be a specific law at some level of government that police can not steal private property during the execution of their duties?Report

          • Em Carpenter in reply to Oscar Gordon says:

            Seems to be the holding, yes.
            They are making the distinction here that the seizure was pursuant to a legally obtained search warrant, and that there is no law warning them that it is a constitutional violation to fail to return what they seize.
            They seem to ignore the allegation that they don’t even admit that they took the money they didn’t log.Report

        • Road Scholar in reply to Em Carpenter says:

          Okay, I get that. It’s lawerly to the extreme (no offense intended) but whatever.

          The thing that gets me is that the whole framework for this case seems off. It’s not like the government is saying, “Yeah, we seized this stuff and we’re not giving it back.” They’re saying the stuff never existed or wasn’t in fact taken.

          My understanding is that for something to be a civil rights violation it has to be the government or a government agent doing the thing. As a private citizen I can commit a crime against you but I can’t violate your civil rights; only the government can do that. Here the real allegation is that the cops acting outside the color of law just flat out stole the money. So the proper relief here wouldn’t be a civil judgement vis-a-vis civil rights violation but an investigation and (if warranted) a criminal indictment for theft.

          Man, this thing looks dirty as hell.Report

          • Em Carpenter in reply to Road Scholar says:

            I think your assessment is correct.Report

          • PD Shaw in reply to Road Scholar says:

            I think the piece missing here (and I’ve skimmed the comments, so sorry if I am the one missing it), is that the complaint here seeks a civil remedy for a constitutional violation. You are correct about the importance about whether the acts take place under “color of law.”

            But the alternative isn’t criminal prosecution, its a civil lawsuit for what is usually called trover or conversion. The court in this case mentions at the very end that there was an adequate remedy in tort law.Report

            • Road Scholar in reply to PD Shaw says:

              Thank-you. IANAL so I trust the legal minds here to set me straight.

              Never heard of “trover”, but “conversion” amuses me. Like converting “your” stuff into “my” stuff.Report

              • PD Shaw in reply to Road Scholar says:

                Yeah, conversion is broader than theft. For example, if I borrow your lawnmower and refuse to return it, it’s not so much that I stole it from you, its that I converted a temporary right of possession into permanent ownership. Also, any actions inconsistent with your right of ownership would be a conversion, like telling you that I own it, or losing it, or destroying it. And it doesn’t necessarily need to be wrongful; if I accidentally run over your lawnmower, I should owe you a lawnmower.

                So, here, the warrant gave the police the temporary right to possess it, but according to the allegations the conversion occurred whenever the coins were pocketed or were not logged; that’s also when the theft occurred.Report

    • Oscar Gordon in reply to Stillwater says:

      This. If the police can arrest a person for stealing something from you, then clearly there is a constitutional right to not be stolen from, given the 4th and the 5th amendments.

      So how is there not a clearly established right?Report

      • Jaybird in reply to Oscar Gordon says:

        Qualified immunity.Report

      • Em Carpenter in reply to Oscar Gordon says:

        When a person steals from you, they are not violating your constitutional rights; they are violating a criminal statute.Report

        • Road Scholar in reply to Em Carpenter says:

          So how is that different if the person happens to be a cop?Report

          • Jaybird in reply to Road Scholar says:

            Do you like omelets?Report

          • Stillwater in reply to Road Scholar says:

            I think (??) the distinction is that private citizens who steal are violating criminal laws, but cops who steal when acting in their legitimate role as police officers can only violate a constitutional right. But the court concluded that citizens have no constitutional right against cops stealing from them, so….

            (Add: I mean, some subtleties can be read into the fourth amendment but that it protects citizens from
            unreasonable seizures of property isn’t one of them. That part is clear.)Report

            • Em Carpenter in reply to Stillwater says:

              That’s part of what loses me is their extremely narrow and limited definition of “seizure”. They say seizure under the fourth amendment refers to whether the property is taken legally, not whether or not it is returned.
              I think the fact that it was not logged (I’m unclear if theyve ever admitted to taking it at all) is where this analysis goes wrong. This is not a CAF or a matter of legally seized property not being returned. It’s clearly something else.Report

              • DavidTC in reply to Em Carpenter says:

                This is not a CAF or a matter of legally seized property not being returned. It’s clearly something else.


                Part of a search warrant being legally executed, and property legally seized, requires said property being logged. I have absolutely no idea _where_ in the law that is, if it’s some criminal statue or just directly spelled out in the search warrant boilerplate. But I am absolutely sure ‘must log evidence’ is not just some police policy, but a legal requirement.

                In addition to the (I assume) constitutional right of ‘Not having your stuff disappear’, there’s also the constitional right of ‘Being able to use things seized by the police as evidence in future criminal cases‘.

                What if the police had, instead of seizing money, had seized documentation from a suspect about a crime, documentation that happened to prove the suspect was actually innocent of the crime, and failed to log their seizure of _that_? And the police then converted said documentation into their own use by burning the money in a wood stove?

                Herp derp, not a constutional violation, says stupidest court ever. He should just file a civil lawsuit to recover the cost of the paper.Report

          • Em Carpenter in reply to Road Scholar says:

            The question is, like you put it above, is it under color of law, or outside of the color of law?
            Often when an individual files a 1983 against the officer they also file against the specific police agency as well. Then you have lawyers for the agency arguing that they aren’t responsible for the officer’s actions because they were outside the scope of his or her job. That can be a tricky area to get into.Report

        • Stillwater in reply to Em Carpenter says:

          But when the cops steal from you they’re not violating a constitutional right OR a criminal statute.Report

        • Oscar Gordon in reply to Em Carpenter says:

          How do judges find this OK? Don’t the see the potential issues this causes?

          Or is this more of the “Professionalism of the Police” that the judiciary seems to always fall back on?Report

          • Em Carpenter in reply to Oscar Gordon says:

            Wish I knew.Report

          • InMD in reply to Oscar Gordon says:

            I think it’s a combination of deference to legislatures and the strong presumption against constitutional holdings. The existence of another remedy is an easy way to avoid the actual issue, despite the fact that the theoretical alternative is a hell of a hill to climb and probably not really available in most cases.

            But this is the world we live in. Judges are not legislators and there’s a really strong cultural aversion to the idea that they should be. At best they’re an occasional backstop against really extreme stuff. If we want better it really starts with the legislative process.Report

    • Doctor Jay in reply to Stillwater says:

      Reading through the comments, including Em’s very helpful analysis, it kinda seems like the judges approached the case as if, for instance, someone stole your car, and you tried to prosecute them for beating you up. The judges go, “Well, no. He didn’t beat you up. Not guilty.”

      Only in this case, they stole your stuff and you tried to prosecute a case against them for violating your civil rights. The judges have to say “Well no. They didn’t violate your civil rights. Not guilty.”

      The formula of “qualified immunity” protects the government/police from expansion of the definition of “civil rights” via court action, or novel legal theories. If only Obamacare had such protection, sigh.

      In a related vein, is a defense of “I was unable to determine, even after due diligence, whether my actions would violate the law or not” at all valid?Report

      • DavidTC in reply to Doctor Jay says:

        Only in this case, they stole your stuff and you tried to prosecute a case against them for violating your civil rights. The judges have to say “Well no. They didn’t violate your civil rights. Not guilty.”

        Except that the police misfiling and destroying evidence not only violates your civil right to a fair trial, but the courts have already said it does.

        And, heck, if the courts had wanted to say ‘These police officers were randomly committing a crime, completely unrelated to their profession, at the same time they were executing a search warrent’, that might work, logically.

        But instead the courts said the seize did ‘correctly’ happen under the warrant. Which means that stuff was legally evidence, and the police walked off without documenting it, thus depriving the person it was taken from the _use_ of that evidence in any criminal proceedings.

        The police can’t have it both ways. Either that stuff was correctly seized as evidence and thus it must continue to exist as evidence or the person’s civil rights to a fair trial are violated, or the stuff was not seized as evidence and the police are just common criminals…in which case the courts are correct to dismiss the civil suit and should _immediately_ have the police officers arrested, just like if they’d taken to breaking into houses and burglarizing them in their off hours.

        The court, instead, insanely argued that the police were operating under the color of law but ‘taking evidence and running off with it’ was a legal execution of a search warrant.Report