Wednesday Writs: Out Of Control Trucks and Runaway Prosecutor Edition

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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112 Responses

  1. Jaybird
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    says:

    WW1: I saw a take the other day that said “Prosecutors see convicting an innocent person as an imperfect substitute for convicting a guilty one”.

    And I find that more and more difficult to disagree with.Report

  2. Kazzy
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    says:

    “ So, that means there was a less extreme outcome that the prosecution originally believed would have been sufficient to exact justice. Absolutely nothing stopped the prosecutor from pursuing those charges and those charges alone at grand jury and at trial.”
    Amazingly succinct and cutting. Excellent analysis.Report

  3. Chris
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    says:

    WW3: Excellent. A good Democratic Party would make this a federal law.Report

    • Jaybird in reply to Chris
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      says:

      “From $28,000-$490,000/year.”
      (After the interview)
      “Yes, we’ve determined that you are a $28,000/year candidate.”Report

      • CJColucci in reply to Jaybird
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        says:

        Thus demonstrating, in case anyone thought otherwise, that the NYC Council isn’t a bunch of wild-eyed socialists trying to legislate what salaries employers must offer and employees may take, and that what bills itself as a disclosure statute is, in fact, a disclosure statute and not something else.Report

    • Oscar Gordon in reply to Chris
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      says:

      I find the criticism (interfering with contract negotiation) specious at best. At the level where a candidate has the kind of negotiating power where knowing the range might be an issue, the candidate already has a good idea of the range. For everyone else, the hiring manager has a given salary range and they are only allowed to negotiate within that. The only thing posting that range in the listing does is give the candidates a good idea if they even want to bother applying.

      Here’s what the real worry is (IMHO); employers are counting on the excitement (and often relief) of being offered a job to impact the candidates willingness to negotiate hard for salary (don’t want to risk the offer being pulled).

      In the end, this is just bringing equity to the information disparity between employer and employee during negotiations. And on the plus side, if the employer is honest with the range, while they may get fewer candidates, the ones they get will find the range acceptable and will more willing to stick around, as opposed to an employee who accepts a low offer and starts looking almost immediately for something better.Report

      • Marchmaine in reply to Oscar Gordon
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        says:

        All of that PLUS, Sally who’s been banking 4% cost of living ‘merit’ raises sees that her equivalent position is offered at 20% over what she’s making now – at the low end.Report

        • Oscar Gordon in reply to Marchmaine
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          says:

          I think that is also a fear of employers, but it’s also one that is being realized regardless, since employees are starting to overcome the taboo of talking to each other about salary.

          So Sally is gonna find out anyway.Report

      • JS in reply to Oscar Gordon
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        says:

        I’ve lost count of the people I know who have interviewed for a job, given a salary range, been told that was acceptable, then got given an offer that was 20% or more below the minimum given by EITHER party.

        And some of these were six or eight week long processes, too. They’d go through all of this and then the company is “So we’re offering you 25% below your minimum salary ask, and 20% below the minimum WE claimed the job would offer. I’m sure after taking four days PTO for our overly stupid multi-stage process, you’re going to jump at the chance to work here. We have casual fridays!”.

        The hiring process is getting increasingly broken. From the ridiculous job requirements, bad keyword screening, to multiple levels of incredibly stupid tests (personality tests! Supposed IQ tests! Just bullsh*t), to multiple levels of interviews (not “Basic screen then interview with the manager/team you’d be working with”, but sometimes 5 or 6 for mid-level or lower positions) with days or even weeks between them.

        Hey man, if it takes three months to onboard someone (from first interview with a prospective hire to offer) for a mid-level position, WTF is your HR smoking?

        And then doubly so when you ignore their salary bands the whole time?

        It’s one thing when some recruiter cold contacts you to ask if you’d like to move 1400 miles for a 6-month gig at a 40% pay cut. You can ignore them. It’s when you’re two months into a hiring process and they give you an offer letter with “I know we said this position would pay 60 to 80 grand, and you said you’d want 75 plus to consider it, but how about 50?”

        Followed immediately by them screaming people don’t want to work.Report

        • InMD in reply to JS
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          says:

          I believe it is a symptom of the view in the corporate world that personnel are all fungible. Things like recruiting and management are increasingly a lost art. Incompetent people outsource hard work and decisions to even more Incompetent third parties. It doesn’t do much for quality but it does provide someone else to point the finger at when things break down. The better organizations resist this sort of thing, the worst are totally overcome by it.Report

          • JS in reply to InMD
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            says:

            Except “they’re fungible, but we also want this unicorn of a resume” at the same time?

            With keyword screening done by AI’s with no humans in the loop to even ask “is this close enough”?

            In any tech field, it’s now recommended to rewrite your resume to include as many (or all) of the keywords as possible.

            What they’re looking for is, say, a front-end guy with Python and C++ experience to code GUIs for their engineering team’s in-house tools. But what their keywords screen for is the resume of the last guy who had the job, so they’re wanting “10+ years Python, 15+ years C++, MS in CS, 6 years+ DBA experience, certs in [various list of sys admin certs], 5+ years JS and Coldfusion, and 5 years machine learning”.

            And they offer 65k a year for what’s a 20+ year vet with a Master’s. Why not throw in COBOL experience, two black belts, and the ability to play a woodwind instrument?Report

            • Oscar Gordon in reply to JS
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              says:

              I see a spec that is not aligned with the level, I don’t bother. I’m not playing that game.

              I suspect we’re both at a point where we can just exercise our networks and avoid a lot of that mess.

              Although that all sucks for the folks still building networks.Report

              • JS in reply to Oscar Gordon
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                says:

                Sadly my network is really closely tailored. It’s been good enough to shuffle me around during the usual cutbacks and recessions, but it’s best focused right here where I am in Houston and to a lesser extent San Antonio.

                I supposed I could probably leverage it into any state with a decent aerospace industry though.Report

            • LeeEsq in reply to JS
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              says:

              Two words, elite overproduction. Not only do they see personnel as fungible but believe that there are enough unicorns out there.Report

              • Oscar Gordon in reply to LeeEsq
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                says:

                The Unicorn Fallacy. Someone once upon a time heard a rumor about (or actually knew) a Unicorn, thus there must be whole populations of Unicorns out there willing to work at your insulting salary and be productive as soon as the HR paperwork is done.

                Self-delusion is the best delusion.Report

            • Jaybird in reply to JS
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              says:

              “Sorry, we can’t find anybody for the job and we posted a want ad and everything. Can we have two or three H1Bs?”Report

            • Mike Schilling in reply to JS
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              says:

              And 10 years experience in Go (which is 8 years old.)Report

          • LeeEsq in reply to InMD
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            says:

            Besides seeing personnel as fungible, I’m also getting a feeling that management believes that only people from certain educational and career backgrounds deserve the highest pay possible. It doesn’t matter if the person is utterly capable, no Harvard, Yale, Stamford, Princeton, or MIT degree no high salary.Report

            • InMD in reply to LeeEsq
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              says:

              I think fungible then becomes a reductive credentialism. Everyone is the same/replaceable, so how do you pick? Well whoever has the best piece of paper from the best institution of course . No one can second guess that.Report

              • LeeEsq in reply to InMD
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                says:

                That seems distressingly possible. It is a combination of personnel being seen as fungible causing reductive credentialism to become more routine and common along with the Old Boy’s Network combined with modern ideas about meritocracy.Report

              • Jaybird in reply to InMD
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                says:

                It’s probably true for many minwage jobs.

                What is the difference between Subway sandwich artists, at the end of the day? We’ve all had good ones, we’ve all had mediocre ones, we’ve occasionally had a bad one… but if you needed to replace a sandwich artist, how long would it take to find the bare minimum?

                Compare to… any given number of skilled jobs. Chartered accountancy, say.Report

              • Chip Daniels in reply to Jaybird
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                says:

                Every time I go to H&R Block to get my taxes done, the accountant who does them reminds me of a Subway sandwich worker.

                What skill, really, does the human bring to this process?

                And that question can be asked of virtually any of the white collar professions, mine included.

                As our professions become consumed more and more by software, what actual value are we bringing, that couldn’t be handled by, say, a person with only a few years experience?Report

              • Jaybird in reply to Chip Daniels
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                says:

                You know, I had a paragraph making distinctions between chartered accountants and the Spirit Halloween tax places that pop up every March but I erased it.

                Hey, how hard is it to be an architect? CAD is just like a particularly boring video game, after all. Most houses are identical, after all. And, let’s face it, they don’t need to last a generation anymore. People in 15 years will want a different house and it’s easiest to just tear down the old one and build a new one from the Spirit Halloween Architecture place.

                How hard is it to put up drywall, anyway? The people that I’ve seen who do it professionally don’t look like they’ve even heard of Proust.Report

              • Chip Daniels in reply to Jaybird
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                says:

                The most advanced architectural software uses the same software base as videogames, and replicates the same commands and structure.

                Yes, many architects get their first training by creating buildings in gamespace.

                And building design, contrary to public imagination, is mostly linear logic- “This needs access to that, so we will put them together….”
                The artistic creative parts amount to only a very tiny part of our work.

                I don’t think it is any different for attorneys or doctors. The “high value” skills which have commanded prestige and pay for generations, are really mostly left brain logic, and easily reducible to algorithms.Report

              • Jaybird in reply to Chip Daniels
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                says:

                How long would you estimate that it would take to make a meets-the-bare-minimum sandwich artist at Subway?

                How long would you estimate that it would take someone off the street to do your job?Report

              • Chip Daniels in reply to Jaybird
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                says:

                About 6 years ago my son had recently graduated college with a degree in political science and was at loose ends (as most political scientists are).

                One day almost as a joke he showed me how he was building a virtual building in some videogame. I happened to need an assistant, and so he joined my office as an intern.

                Today he is a fully functioning (unlicensed) architect, designing buildings in our design-build department and showing them to clients.

                Six years to go from a standing start to fully functioning professional.

                Now, I do have a lot more expertise in building construction technology.

                But even here, a lot of the things I used to charge people for, like designing roof flashings, are obsolete- nowadays modern roof systems don’t need them.

                I can foresee where my 40 years of experience are viewed by software designers as a problem to be solved- buildings are less and less being constructed onsite according to drawings made by people like me, but assembled like cars in factories according to drawings made by people like my son.

                The future replacement for “Senior Architect” isn’t some other gray bearded professional but guys with 10 years, 15 years of experience armed with intelligent software and machine learning.

                Who are themselves fungible because really, what are they bringing to the process that anyone else couldn’t do?Report

              • Jaybird in reply to Chip Daniels
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                says:

                I can’t tell if you see the difference between that and a sandwich artist or not.Report

              • Chip Daniels in reply to Jaybird
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                says:

                Me neither.

                Kidding on the square here.Report

              • LeeEsq in reply to Chip Daniels
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                says:

                Or TurboTax. For most people, your taxes are going to be simple enough to just use TurboTax. No need to go to an H&R block. The fungibility makes more services more affordable but also makes it harder for people to pay because the salaries are just kept low.

                Law is semi-immune to all of this. Many lawyers need to be able to do a trial or hearing and we haven’t figured out how to get software to do anything related to a trial yet. There is also negotiating involved. The way the legal business operates is still very old school because most lawfirms are too small to need an HR department. Attempts to software different areas of the law have not gone well because even things that seem simple can be tricky.

                At the same time, law isn’t exactly immune. For every immigration lawyer there are at least fifteen to twenty not entirely legal immigration service providers because they tend to be cheaper. They mess up a lot but they are cheaper.Report

              • Jaybird in reply to LeeEsq
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                says:

                Would you say that a particularly skilled Subway sandwich artist could be brought up to speed on immigration law in more or less the same amount of time it took to become Subway-certified?Report

              • Oscar Gordon in reply to LeeEsq
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                says:

                You don’t go to H&R Block for the expertise of their tax preparers, you go for the guarantee that if they get it wrong, they’ll engage with the IRS on your behalf.Report

              • DensityDuck in reply to Oscar Gordon
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                says:

                “You don’t go to H&R Block for the expertise of their tax preparers, you go for the guarantee that if they get it wrong, they’ll engage with the IRS on your behalf.”

                Or for the guarantee that if they get it wrong it’s their neck just as much as it’s yours.

                See, I’m not really paying a tax preparer to put the numbers on the paper. I’m paying for them to have the time and the knowledge (and the motivation) to talk their way out of a jam involving the taxes, should one occur. I’m paying for them to know who at the IRS to call about problems (and to have a reasonable expectation that their call will be answered.)Report

              • InMD in reply to Jaybird
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                says:

                I’m speaking from my experience hiring in in-house legal land. There can be a lot of pressure to pick up a certain pedigree (tier 1 school, big law experience, etc.) where they’re really not necessary or in my experience even desirable. At least that’s the case in a market like DC metro where there are so many lawyers we’re scuttling out of the woodwork like roaches. It may not be applicable in other areas.Report

              • Jaybird in reply to InMD
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                says:

                Hey, I’ve got a degree in philosophy and I somehow ended up being a sysadmin.

                That said, I’m not sure that my job could be done by any person off the street.

                I say that because I’m not even a particularly good one and I’ve met a *TON* of people who weren’t even up to the bare level of mediocrity that I have stumbled into.Report

        • Oscar Gordon in reply to JS
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          says:

          And people wonder why gig work begins to look attractive…

          Oddly enough, I got hired by Boeing with a single phone interview, and hired by CD-adapco with a quick phone interview and a single day in person interview.

          I’m currently interviewing for my replacement, and it’s all via Zoom, so it’s a bit more spread out, but so far it’s been about a total of 6 hours of Zoom conversation for the candidate we really like.Report

        • Oscar Gordon in reply to JS
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          says:

          PS I’ve had that kind of bait & switch done to me. I thank them for lunch and say a very polite no.Report

          • JS in reply to Oscar Gordon
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            says:

            You get lunch? 🙂

            Admittedly, I’ve been lucky and haven’t had to interview for years — and moved around internally a lot before then (same job different companies, same company different jobs, etc).

            But the last few I went on — Jesus. The last one prior to this job I walked out, told the recruiter who’d sent me there to up my minimum salary 25k. He told me “They won’t hire for that”. I told him I knew that, but I sure as hell wasn’t sticking myself into that minefield for anything less.Report

            • Oscar Gordon in reply to JS
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              says:

              I used to, haven’t had to interview in over a decade, so who knows now.

              Although if they won’t spring for a lunch, I’m probably not going to accept an offer unless it’s really good.Report

          • Dark Matter in reply to Oscar Gordon
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            says:

            My experience was interviewing for a Chicago firm at a Illinois U for a job that all the indications were was in Chicago. Half way through they asked if I was willing to relocate to Japan because that’s where the job was.

            I told them no. I asked if there was any reason to continue the interview and we all agreed there wasn’t.

            Next semester they added “must be willing to relocate to Japan” in the requirements.

            I got the feeling it was more cluelessness than deliberate waste of time.Report

        • Saul Degraw in reply to JS
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          says:

          This has been my situation in 2021:

          Employer: what are you looking for in terms of salary?

          Me: I would like X.

          Employer: I can see you are worth that but I don’t want to pay it. Bye.Report

    • Saul Degraw in reply to Chris
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      says:

      Ha ha Manchin.Report

  4. Dark Matter
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    says:

    there was a less extreme outcome that the prosecution originally believed would have been sufficient to exact justice. Absolutely nothing stopped the prosecutor from pursuing those charges and those charges alone at grand jury and at trial

    WW1: Not “absolutely nothing”. If they do this, then there’s no benefit to the defendant if they bargain, so they might as well roll the dice even if they probably won’t win.

    Ergo every case goes to jury.Report

    • Jaybird in reply to Dark Matter
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      says:

      Ergo every case goes to jury.

      What’s wrong with that?Report

      • Greg In Ak in reply to Jaybird
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        says:

        There are defendants who are guilty, know they are caught and have a pole of evidence against them. Pleading guilty is a faster way for them to do their time and get through it all. They and their family are saved the expense of a lawyer if they don’t have a PD. Lots of criminals feel remorse so they don’t want to fight something they feel guilt over.

        There are good reasons why a trial isn’t always good.Report

        • Jaybird in reply to Greg In Ak
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          says:

          Are these criminals going to stop plea bargaining if the (not necessarily monetary) costs of going to trial gets lowered?Report

          • Greg In Ak in reply to Jaybird
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            says:

            That is a different question/statement then every case going to trial. Every case shouldn’t go to trail though a person should have a trial if they want one. Lots of people won’t want one so they should be able to plea bargain. Especially for those people that hurt their family or friends, going to trial would be equivalent to hurting their family a second time.Report

      • Dark Matter in reply to Jaybird
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        says:

        90 to 95 percent of both federal and state court cases are resolved through plea bargains (google… but other sources claim 97% so I’m going to use 95%).

        Plea bargains are FAR cheaper than trials.

        If we assume everything goes to jury, then the amount of resources the process will consume will skyrocket.

        This could/would easily become an absurd expansion on the parts of our system that are already not great.

        As slammed as our public defenders are now, today will seem like the golden years compared to what this would bring.

        The court trials themselves will also be absurdly slammed resulting in joke trials and absurd delay times.

        The rest of society would do everything in their power contract wise to not be in a trial because the wait times would be so long.

        All of that is off hand, since we’re taking big steps to make the courts dysfunctional I’m sure there’s a ton of other really bad outcomes. One assumes the rich would largely not have to deal with it and the poor would get serious problems.Report

        • Oscar Gordon in reply to Dark Matter
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          says:

          It’s been said by many that if even a few percentage points of defendants insisted on jury trials, the system would grind to a halt in very short order, and that we should do exactly that in order to force reform.

          Ideally, the reform would be fewer criminal penalties and shorter sentences.

          I suspect the reality would be closer to Judge Dredd.Report

        • Chip Daniels in reply to Dark Matter
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          says:

          I agree with the prognosis but have to note the terrible incentives here.

          The incentive is not to effectuate some sort of justice, but merely merely keep the prison pipeline moving along.

          This is where carceral reform comes in.

          If we are arresting so many people that our court system can’t handle them all, how then can our prison system handle the outflow from the courts?

          Well, we citizens routinely approve vast sums to enlarge the the prison system.

          Why then don’t we approve vast sums to also enlarge the court system?

          Because it’s not considered important. The fear of crime is something every voter can be made to feel but the fear of being arrested is something only a few experience.Report

    • Em Carpenter in reply to Dark Matter
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      says:

      Thanks… I addressed the benefit of the bargain in the piece.Report

    • Oscar Gordon in reply to Dark Matter
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      says:

      Sure, but there can be a middle ground of charges, something between “here’s the plea deal” and throwing the book at them. I agree with Em that this smacks of ‘Contempt of DA’. Ideally, the proper response to ‘Contempt of DA’ is jury nullification in whole or in part, but judges really, REALLY dislike jury nullification and do everything they can to discourage it (or so I hear).Report

      • Dark Matter in reply to Oscar Gordon
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        says:

        Bad law results in bad outcomes.

        4 counts of vehicular homicide, 6 counts of first-degree assault, 10 counts of attempt to commit assault in the first degree- extreme indifference, two counts of vehicular assault- reckless, one count of reckless driving, four counts of careless driving causing death.

        Vehicular homicide is 2-6 years in Colorado.
        1st-degree assault is 10-32 years in prison.
        vehicular assault is 90 days probation.
        careless driving causing death is a year.

        I suspect the lesser charges don’t run up the jail time clock much, they’re just there so the jury would find him guilty of something.

        He drove his truck into a crowd of cars/people. The law was written with the idea that you’re doing this once, but technically he’s done it multiple times.

        Now the DA could have just charged him with one count of homicide (and so on) to keep the ending count down, but the core problem remains the law which says this time has to be done sequentially.Report

        • Oscar Gordon in reply to Dark Matter
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          says:

          A smart jury would recognize that they decide what he’s guilty of, and only convict on those charges.

          But nobody likes smart juries.Report

          • Dark Matter in reply to Oscar Gordon
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            says:

            That list is what they convicted him of.

            Core problem is this feels like one act, but because of the crowd he did it 16 times for 16×10.

            (Some handwaving in there on numbers).Report

            • Oscar Gordon in reply to Dark Matter
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              says:

              Sure, but a jury is not actually obligated to find a person guilty on every charge just because the charge is supported. They could have just gone with charges against the 4 dead. But juries are usually unaware of the powers they have.Report

              • Dark Matter in reply to Oscar Gordon
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                says:

                More importantly, they’re not aware of how much time is attached to every charge.

                And this jury only found him guilty of about two thirds of what was proposed, so technically they did what you are suggesting.Report

              • CJColucci in reply to Dark Matter
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                says:

                Exactly. It is usually reversible error to inform juries of the potential sentences, And what jurors may think they know is likely the result of media coverage saying defendant X faces a potential Y years, based on multiplying the max sentence by the number of charges. This is an area where I’d love to see lawyer talking heads talk about realistic, rather than theoretical, exposure.Now if somebody wants to suggest that too many crimes have excessive sentences attached to them, or that mandatory minimums are a horrible idea, I’m on board. Sadly, they are politically popular among a large set of voters.Report

              • Dark Matter in reply to CJColucci
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                says:

                It is usually reversible error to inform juries of the potential sentences

                That seriously limits the potential of Oscar’s idea.

                Although the Jury has the ability to just say “no”, their actual job is to evaluate guilt or innocence without worrying about the effects downstream.Report

        • PD Shaw in reply to Dark Matter
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          says:

          That seems to be a very high sentence and a wide range for 1st degree assault. (In Illinois, aggravated assault w/o a firearm is a misdemeanor).

          There are a lot of situations covered by the statute, but this appears to be the one that was likely at issue here: “Under circumstances manifesting extreme indifference to the value of human life, he knowingly engages in conduct which creates a grave risk of death to another person, and thereby causes serious bodily injury to any person.”

          That language resembles the “depraved heart” murder charges that come up in police abuse cases. The classic example is the teenager who initiates a game of Russian roulette which kills a friend; he may not have intended his friend’s death, but he was utterly indifferent to the inherent dangers of the game. I suspect one just roles the dice as to whether jurors understand how these circumstances stack up to other circumstances.Report

  5. Marchmaine
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    says:

    Wondering if you can study negotiation and game theory for a regulatory framework on reforming Plea Bargain Negotiations.

    We’re clearly operating in an “ask for the Moon to get a Pony” model for prosecutors… the problem with that model for anyone who negotiates for a living is that it only works with a wild power imbalance… as the Pony itself isn’t realistic – that’s the joke, really.

    So, just spitballing, I wonder if we could balance the negotiations a bit by making the Plea Bargain the only thing the Prosecutors could then charge… but with some sort of accelerator attached to it if it goes to trial? Or, maybe to keep it consistent with sentencing, some sort of new minimum is applied that’s consistent with the crime but raises the stakes.

    Downside is that the risk reduction might be too low resulting in more trials, the upside is that we’re clearly dealing with negotiating practices that wildly favor one side – the side with all the power – such that it begins to erode confidence in the justice system itself and we would benefit from a system that targets justice over efficiency.

    The other thing we don’t talk about is that the Pony is still good for the prosecution… and we’ve become more aware of the fact that the bargain isn’t always all that good of deal for the accused… just that buying the State a Pony is relatively better than being on the hook for the Moon.Report

    • Kazzy in reply to Marchmaine
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      says:

      Maybe keep the charges as is… a plea offers a guaranteed minimum on them, a guilty verdict introduces the risk of more than the minuimum?Report

    • InMD in reply to Marchmaine
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      says:

      I don’t know that a gimmick is really necessary. The situation is driven by two things. The first is very long and often enhanced sentences. That’s also what drives mass incarceration, not just that we put a lot of people in, but that once they’re in it’s for a really, really long time. The stakes of losing at trial on pretty much any felony charge are simply enormous even if you cut down the number of them, and it’s even more significant for repeat offenders.

      The second driver is what reformers don’t want to talk about, which is that most defendants are guilty (even if often not as guilty as what the state says) and evidence of the guilt is usually overwhelming. There is not some vast sea of criminal defendants likely to be acquitted if they went through a trial, and most would be almost farcical to force. Then at the end they’d go away for even longer because there was no bargain.

      The best thing to do would be sentencing reform. Of course the politics of that are a lot stickier, even if it is the right thing to do.Report

      • Marchmaine in reply to InMD
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        Sure, sentencing reform would do similar things though.

        Plea to 4 appropriate charges for, say 8-yrs. or risk 4 higher charges for 12-years. Theoretically the Prosecution is carrying more risk for a 50% increase of 4-yrs. There’s some balance in that.

        But, we’re not anywhere near that; we’re at 20-yrs vs. 110-yrs (hypothetically)… the *point* is the absurd risk of 110-yrs… but I’m not even sure 20-yrs is just (in this hypothetical).

        Not saying that this is what every prosecutor does everywhere everytime… but we’ve seen enough to know it happens more often than it ought for the health of the system.Report

        • InMD in reply to Marchmaine
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          To me there’s just no way to dodge dealing with that core issue of what a reasonable sentence is. We passed the point of diminishing returns a long time ago. The ROI doesn’t make any kind of sense, especially with what we’ve learned about aging out of crime. But we also know there will be outliers, and horrendous situations, and just plain old bad people that slipped through or got out and did it again. No one wants to own it.Report

  6. Chip Daniels
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    says:

    WW1:
    This is why the selection of the DA is so important, and should be based on more than just the usual “ToughOnCrime!” stuff that gets tossed out during election cycles.

    Having a district attorney who has a genuine desire to pursue justice rather than body counts makes a difference in how those discretionary decisions are made.

    Right now in several cities like Los Angeles there are reform minded DAs who are struggling, politically, because while an awful lot of people look at this particular case as egregious, the attitudes that created such a prosecution culture are actually very popular.Report

    • Saul Degraw in reply to Chip Daniels
      Ignored
      says:

      4 people died!! The truck driver seemed to think he only deserved a slap on the wrist. I would be pissed off too if I was the prosecutor.

      I don’t know the full facts here but will accept the facts as given. There are still four people whose families will miss them. It seems kind of hubristic to me to think this only deserves a ticket.*

      *Since I am human, I can see myself in the driver’s shoes as well. The reason for this appears to be that Colorado law requires consecutive and not concurrent sentencing. This is unjust and I would not be upset if it was declared unconstitutional but four people died and the guy appears to have a cavalier attitude about it.Report

  7. Oscar Gordon
    Ignored
    says:

    WW4: I’m less worried about the challenges of human law, and more the challenges of physical law. Mining asteroids & moons is absolutely worth overcoming both sets of challenges, but the engineering side is going to be much harder to do (since given enough financial incentive, the legal questions will evaporate).Report

  8. Mike Schilling
    Ignored
    says:

    WW5: Excellent news. Otherwise we’d by seeing a truck driver who screwed up and killed 4 people get 110 years while a wealthy family that conspired to kill hundreds of thousands got off scot-free.Report

  9. Saul Degraw
    Ignored
    says:

    It was an accident where four people died. A good chunk of my legal practice currently involves defending trucking companies and truck drivers in tort cases. Those things are big and can cause a lot of damage. In this case, four people died.

    Is 110 years in prison too much? Possibly. But it is kind of hubristic to want what amounts to a slap on the wrist when four people die even if a person has a clean driving record. Vehicular manslaughter is a crime for a reason. All drivers have a responsibility to drive prudently and safely. This should be especially true when you are driving a very large battering ram on wheels.

    I don’t quite understand why a lot of Americans seem to be okay with referring to any injury caused by a vehicle as an “accident” like it is accidentally bumping into someone in a grocery store. Four people died. Is that worth a slap on the wrist only? It might not have been intentional but it needs more than just a slap on the wristReport

    • Oscar Gordon in reply to Saul Degraw
      Ignored
      says:

      You are assuming the prosecutor is being completely honest about what the defense was willing to accept.Report

      • Saul Degraw in reply to Oscar Gordon
        Ignored
        says:

        Fair but four people died and it seems to me that everyone is being cavalier about that. A jury also convicted him which implies there is evidence of guilt too. What if the prosecutor is being completely honest and the defendant only would accept a slap on the wrist?Report

        • Oscar Gordon in reply to Saul Degraw
          Ignored
          says:

          I don’t think anyone is being cavalier about this. I doubt the defense is either. We weren’t party to the negotiations, so we have no idea (TTBOMK) what the most the defense was willing to accept, nor what the minimum the DA was willing to offer. I also have no feeling for how such cases normally play out. Would a white defendant get offered a better deal?

          But at the end of the day, it was a legit accident. The brakes failed and the only thing the driver is guilty of is getting the trolley problem wrong.Report

          • Dark Matter in reply to Oscar Gordon
            Ignored
            says:

            The brakes failed and the only thing the driver is guilty of is getting the trolley problem wrong.

            He didn’t take two off ramps for trucks whose brakes have failed. See link for what that technology looks like. Basically you take the off ramp and your truck stops without hurting anyone, including yourself. From the looks, with luck it may not even damage the truck.

            https://www.youtube.com/watch?v=Mh-kgNQ4XhY

            What he did is roughly equiv to a pilot whose plane is failing so he decides to pray very hard that god will help rather than try to fix things himself.Report

          • Saul Degraw in reply to Oscar Gordon
            Ignored
            says:

            It appears that there could have been off ramps for him to take but did not. Perhaps if he took these off ramps, people would not have died.Report

          • JS in reply to Oscar Gordon
            Ignored
            says:

            “The brakes failed and the only thing the driver is guilty of is getting the trolley problem wrong.”

            No. The brakes failed because, bluntly, he was driving his truck wrong. They failed because he wasn’t engine braking down a steep incline, and he busted his brakes using them instead. Either untrained and shouldn’t have been driving that truck, or ignored his training.

            it wasn’t an act of god, any more than if he’d broken off his own steering wheel and told people it wasn’t his fault because he couldn’t steer. “legit accident” doesn’t describe, for instance, the aftermath of someone deciding to do 120 through a school zone.

            It gets worse. He passed at least two off-ramps DESIGNED for trucks whose brakes have failed or otherwise acting problematically (there’s a reason you’re supposed to engine break on slopes like that) so they can leave the road and slow to a stop without injuring anyone. He didn’t take either. Again — poorly trained or ignored training.

            Lastly, he could have ditched his load and laid his truck down — again, a thing he’s supposed to be trained to do and didn’t do. The terrain was, IIRC, acceptable for that well after he saw the cars ahead of him.

            Poor training or ignored training. He shouldn’t have been behind the wheel, and he was rightly prosecuted because he made a series of REPEATED bad decisions that led to deaths. Decisions that, bluntly, anyone who had a license to drive a rig like that knew better than to make.

            Is 100+ years fair? No, I don’t think so. But that doesn’t mean he wasn’t rightfully convicted.

            This was not a “legit accident”. It was extreme negligence that got people killed.Report

            • Dark Matter in reply to JS
              Ignored
              says:

              He passed at least two off-ramps DESIGNED for trucks whose brakes have failed

              Cool demo link on how that works: https://www.youtube.com/watch?v=Mh-kgNQ4XhY

              First 40 seconds is all you need.Report

            • Michael Cain in reply to JS
              Ignored
              says:

              I am intimately familiar with the Genessee-to-Golden downhill run. If the US DOT were sane, the weight limit on it would preclude tractor-trailer rigs.Report

              • Oscar Gordon in reply to Michael Cain
                Ignored
                says:

                Back in the mid-90’s, I rode into Denver down I-70 and remember seeing those runaway ramps, which were scary looking gravel pits (not at all like the really nice ones in Dark Matter’s video). I hope they’ve been updated to something better since then.Report

              • Dark Matter in reply to Oscar Gordon
                Ignored
                says:

                scary looking gravel pits (not at all like the really nice ones in Dark Matter’s video

                My nice ones were supposedly gravel/sand, so they might have looked scary up close at a different angle.

                This probably comes back to training.

                “Yes, it looks really scary but drive into it anyway, or better yet watch these videos of out of control trucks driving into them”.Report

              • Michael Cain in reply to Oscar Gordon
                Ignored
                says:

                Limited locations where the truck can track straight into the ramp, and limited uphill distances. Putting the truck up to the axles in pea gravel is by far the safest way to get it stopped in the allotted space.Report

            • Oscar Gordon in reply to JS
              Ignored
              says:

              JS, where did you get the details about the brakes? I read that they failed, and not for lack on maintenance or care, I hadn’t heard about a lack of engine braking. I’d also read that the driver hadn’t felt like he could safely use or access the ramps, so he was hoping to just slow to a stop at the bottom (rather than ditching the load).

              So, where did you get those details?

              Times like this, I wish RoadScholar was still around..Report

              • JS in reply to Oscar Gordon
                Ignored
                says:

                Whether it was brake malfunction versus misuse was was central part of the case. The jury agreed with the prosecutor.

                In addition, the driver had previously only driven in very flat Texas and had just shifted to this new job, which let him drive out of state for more money. He should never have been on that road in that rig. (Which, honestly, places a lot of culpability on those that hired him).

                He wasn’t trained on mountains or even hilly terrain.

                Truck drivers have to use very specific techniques to control speed during steep descents to prevent exactly this sort of failure.

                Add in the other, less disputed issues — failure to use the off-ramps designed for trucks in this exact situation, and failure to lay the truck down — showing complete inexperience and inability to drive in those conditions, it’s not exactly a stretch to see why the jury agreed with the prosecutor on that facet.Report

              • Oscar Gordon in reply to JS
                Ignored
                says:

                I see.

                Then I stand corrected and withdraw my previous statement regarding the Trolley Problem.

                I still don’t trust that the DA is being honest regarding plea negotiations.Report

              • JS in reply to Oscar Gordon
                Ignored
                says:

                Oh, I’m sure he wasn’t. The end result was a travesty.

                But if you read carefully, you notice the outrage is against the length of the sentence, but very little seems to be about him being found guilty.

                To me what’s being overshadowed by this is simple — how did a 23 year old driver, with limited experience as a trucker and NO experience in mountainous terrain, end up hired, contracted, or otherwise given a heavy load to drive across the mountains?Report

              • Oscar Gordon in reply to JS
                Ignored
                says:

                Makes me wonder if there isn’t liability for whoever handed him the route.Report

              • PD Shaw in reply to Oscar Gordon
                Ignored
                says:

                If he had been convicted of reckless driving, perhaps. The sentence here will be used by the employers and the insurance companies to deny responsibility. Generally the more egregious the individual’s conduct, the less likely third parties will be liable for it.Report

  10. Mike Schilling
    Ignored
    says:

    WW3: Next, maybe prosecutors will have the disclose the sentence for each charge.Report

  11. Jaybird
    Ignored
    says:

    Dude: you nailed it:

    Report

  12. Michael Cain
    Ignored
    says:

    I admit to being biased in the sense that it could have been me at the end of the traffic jam he hit (been there in that situation), after he made multiple mistakes. Four people died; could have easily been 24; could have been me. 110 years — effectively life — might be too much. 55 certainly isn’t, and if the DA offered him 24 and he turned it down, he and his attorney are crazy.Report

    • PD Shaw in reply to Michael Cain
      Ignored
      says:

      And here is the strength and the weakness of the jury system. The jury certainly would have known the road, would have seen past any misdirection. My experience crossing the Divide on I-70 is that its pretty intimidating for a flatlander, and an engineering marvel at some points.

      OTOH, the “Golden Rule” for improper jury argument is that the prosecutor cannot attempt to persuade the jurors to put themselves in the victim’s place. They didn’t have to say a word to that effect, right? The inherent dangers are obvious to those familiar with the road, and they probably took some comfort from the availability of runaway ramps.Report

      • Michael Cain in reply to PD Shaw
        Ignored
        says:

        So here’s a question: why wasn’t the defense that party C put the driver in a position that they were not properly trained/experienced to deal with? Why not run the truck up one of the runaway ramps? To pick an example from a different industry, I used to have a neighbor that ran the United training simulator in Denver. After the incident where one of their flights lost all hydraulics (and a pilot damned near landed successfully in Sioux City anyway) that situation was added to the standard training set. According to my neighbor, no one kept the simulator “in the air” nearly as long as the actual pilot. Oh, the trucking companies don’t have standard training sets that simulate catastrophic failure scenarios as part of driver training? Why is that? Four or 24 “accidental” deaths are acceptable?

        This is not a Kobayashi Maru scenario. It happens regularly. There are known correct responses, which were not taken.Report

        • Dark Matter in reply to Michael Cain
          Ignored
          says:

          There is a vast difference between: “Someone else contributed to this” and “I didn’t do it”.

          “It wasn’t me” doesn’t work as a defense in this situation as the song showcases:
          https://www.youtube.com/watch?v=T_x6QmuJdmsReport

        • PD Shaw in reply to Michael Cain
          Ignored
          says:

          His sentence was based upon six counts of first degree assault (minimum 60 yrs overall) plus ten counts of attempted first degree assault (minimum 50 yrs overall). These penalize intentional misconduct, or its closest cousin (depraved heart). I don’t know that his training or experience are legally relevant, though more on this might have made the jury more sympathetic. Perhaps he received all of the best training and still wanted to cause serious bodily injury; he would still be guilty if that is what he intended or if he didn’t care if others lived or they died.Report

  13. Jaybird
    Ignored
    says:

    Report

  14. DensityDuck
    Ignored
    says:

    I’m surprised that so little of the Daunte Wright discussion mentioned Oscar Grant, which was just about exactly the same situation (cop grabbed their firearm instead of their Taser).Report

    • Dark Matter in reply to DensityDuck
      Ignored
      says:

      Not the same. With Grant, the cop was being pretty brutal in general and the situation was his fault. Accidentally killing someone while you’re unjustly abusing your authority means you don’t have much of a case. It’s even possible that he really did mean to use the gun and just claimed otherwise because he had nothing else.

      With Wright, there was no dispute that she had reason to use taser. Excuse the “wrong weapon” aspect of this and there is no problem other than Wright being a criminal.Report

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