Monthly Archives: June 2016

Hate Crime

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Today I’m going to write about hate crime. This particular post is a bit difficult for me in light of the recent terrible events in Orlando, yet it’s also necessary.

hateBefore I get into particulars, I’m going to plug my own book. I’m currently working on the 4th edition, but if you want to know a lot of details about hate crime, I suggest picking up a copy of the 3rd edition. Obviously, not all the examples will be up-to-date, but it will tell you most of what you’d need to know. The references section is extensive, in case you want to research particular topics in depth.

Okay. So what is a hate crime? Most succinctly, it is a criminal act motivated by the victim’s group. Of course, there are lots of complications involved, and state definitions vary, but that definition is a good place to start. Now for some specifics.

Hate crime requires an underlying criminal act—i.e., something else that is already a crime. Assault. Vandalism. Trespassing. And so on. I know of one case where a KKK member burned a cross on his own property—something that would not ordinarily be a crime—but was nonetheless charged with a hate crime because he violated burn laws (he burned out of season without a permit).

How hate crime laws generally work is by increasing the penalty. This can be done in different ways, depending on the jurisdiction. The hate crime may be charged as a separate crime (meaning the defendant will get two convictions), or it may enhance or bump up the severity of the underlying crime.

If a person expresses hateful ideas without committing a criminal act, that’s hate speech. Examples would include yelling racial slurs, posting hateful content on the Internet, and distributing extremist literature. Hate speech usually cannot be punished in the United States because it’s protected by the First Amendment. There are some fuzzy areas, however, such as when the speech incites violence or amounts to a threat.

States vary as to which groups are protected by hate crime laws. All states with hate crime legislation cover crimes motivated by race, religion, and ethnicity or national origin. Only some include sexual orientation, and even fewer include gender or gender identity. A few include other categories such as age or disability.

Hate crimes are the only crimes that require proof of the offender’s motive. For example, hitting someone because you don’t like their favorite football team is not a hate crime; hitting someone because you don’t like their religion is a hate crime. Both these of these involve the same action–intentionally hitting someone–but what differentiates them is the reason why. Identifying hate crimes is often difficult and prosecutions are rare. California has fewer than 100 hate crime convictions in a typical year.

Hate crime reporting rates are low, especially for certain victims. Such hesitancy might come from those who are undocumented, who fear the repercussions of reporting, or who are from communities that have poor relationships with law enforcement.

The vast majority of people who commit hate crimes—some estimates say 95%—do not belong to organized hate groups. Yes, some are committed by racist Skinheads and members of other groups. But most aren’t, and that’s something you might want to keep in mind when you write.

As the Orlando events illustrate, it is sometimes difficult to distinguish hate crime from terrorism (and other forms of violence, such as gang violence). In fact, I’d argue that there’s probably little meaningful difference in terms of the mindset of the perpetrators. Most offenders fit a basic profile: young men without significant criminal records, many of whom seek to prove their masculinity and/or impress peers. While the specifics may vary, I believe most of these offenders are influenced by similar psychological, emotional, and societal factors. Common factors include feelings of alienation or lack of power, as well as exposure to messages (from family, religion, the media, the government, and from the culture at large) condoning bias against certain groups. There is some evidence that specifically in cases of hate crimes against LGBT people, some perpetrators may be struggling with their own unwanted attraction to members of the same sex and with internalized homophobia. It’s too early to say for sure, but it appears this may have been the case in the Orlando shootings.

Obviously, I could go on at great length. So if you have specific questions, please feel free to ask.

 

Coroners

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I’ve been meaning to post about coroners, and since I recently toured my local coroner’s facility, now seems like an appropriate time.

Like sheriffs, coroners can be traced back to shortly after the Norman Conquest of England—roughly the 11th century. As the name suggests, coroners were appointed by the crown and charged with protecting royal financial interests in local issues. For example, when someone died, fees might be due to the king. Sheriffs often couldn’t be trusted in these matters because they had a personal interest—or were corrupt. To make coroners more immune to temptation, they were required to be wealthy. They had several duties, and one of them was investigating causes of death. Not so much to see wrongdoers punished as to make sure the crown got its due. The particular task of finding cause of death was eventually imported to coroners in the United States.

In the US today, coroners are often affiliated with or a subdivision of the local sheriff’s department, although they may also be part of the district attorney’s office or other agencies. And here’s another place where I have to repeat this warning: laws, policies, and procedures vary a great deal across jurisdictions. If you want to be accurate about a specific jurisdiction, consult the authorities there.

The titles of the people involved can be confusing and do vary. Some jurisdictions use the term medical examiner—and that person, unlike the coroner, is usually a physician. The autopsy itself is conducted by a physician, usually a forensic pathologist, who’s assisted by autopsy technicians. Other professionals may also get involved when needed, such as experts in forensic odontology (teeth), anthropology (bones, mostly), and so on.

Coroners are usually called in under specific circumstances of death. My local policy is typical. The coroner will investigate cases of suspected homicide or suicide, cases involving accidents, cases with no known family, and unaccompanied deaths (when someone dies alone) where a doctor can’t confidently sign off on cause of death. If a person dies while receiving treatment at a hospital or other facility, the coroner usually won’t get involved because the doctors there already know why the person died. Even if a person dies elsewhere—at home, in public, at work—a coroner isn’t needed if a doctor knows the medical history and can attest to cause of death.

The job of a coroner is usually to determine cause of death. Heart attack. Overdose. Gunshot wound. Anoxia (lack of oxygen). Not who caused the death or why—that’s the job of law enforcement. Just how. I recently watched the autopsy of a bicyclist who was struck by a train. Even I could discern the extensive damage to his internal organs and spine. I’m guessing official cause of death was blunt force trauma.

The job of collecting evidence related to the death, such as fibers, gunshot residue, and so on, is generally up to the responsible police agency, not the coroner. However, the forensic pathologist will take blood and tissue samples for toxicology and other purposes.

Some things I learned about my local coroner, which may or may not apply to yours:

  • While awaiting autopsy and, later, while awaiting pickup by a funeral home, etc., bodies are kept in body bags on shelves. There are no drawers like in TV morgues. Most bodies are kept in refrigerated rooms (where the smell is pretty awful), but the most decomposed ones may be kept in a freezer.
  • Coroners use multiple methods and checks to ensure that bodies don’t get confused with each other and to ensure they’re examining the right one.
  • They use ankle tags, not toe tags.
  • The police department, not the coroner, takes photos of the body before the autopsy.
  • The scent of decomposing human remains is distinctive and awful.
  • The police tech person who had to take photos spread Vick’s VapoRub under her nose. But the coroner teased her about it. He says Vick’s just opens up the nasal passages and makes everything smell like mentholated death. When the smell is especially bad, he puts a tea bag inside his mask.
  • In a non-homicide case, the autopsy takes about an hour. Homicides take longer because they require more care in recording and preserving evidence. For example, the size, depth, and angle of a stab wound may prove critical in a homicide but less so in an accident.
  • Internal organs (including the brain) are removed and weighed, and samples are taken. Then the organs are placed in a bag and sewn into the body cavity.
  • Pruning shears are used to fracture the ribs, allowing the chest plate to be removed for access to the internal organs. The chest plate is returned before the body is sewn back up.
  • Before the top of the skull is sawn off and the brain removed, the coroner peels back the scalp. (It will be put back in place after the autopsy, and the cut marks won’t show at the funeral.) Part of the saw cut includes a notch so that the removed piece sits back neatly when they’re done. This eerily reminded me of making a jack-o-lantern.
  • While people’s own mistakes often cause or vastly contribute to their death, the coroners understand that it’s devastating for families. They do their best to treat the families with respect and compassion.
  • Predictably, the hardest cases emotionally for the coroners involve child victims.
  • While coroners don’t investigate the circumstances behind a death, they may alert police when a suspected accident looks more like homicide. The coroner I spoke with told me about a case in which a young child died from a head injury supposedly caused by a fall. The hospital believed the parents’ claim that it was an accident, but the forensic pathologist told police it would be almost impossible for a simple fall to cause the extensive damage he found.
  • Families are not brought in to ID bodies. In fact, while I’ve talked to agencies elsewhere that occasionally have families ID the deceased via photographs, my local agency doesn’t use family IDs at all. The coroner said there are much more reliable alternatives (medical and dental records, tattoos, serial numbers on joint replacements, etc.).
  • Breast implants have serial numbers and have been used to ID a body.
  • Evidence is not stored at the facility; bodies are released for burial, etc., and other evidence is given to families or law enforcement.
  • Unclaimed or indigent deceased people are cremated and the ashes scattered at sea.

 

That’s Insane

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The law allows for a lot of defenses in criminal cases. Some of them are used fairly often, like self defense, while others are somewhat more obscure, such as involuntary intoxication. But probably no defense has as many myths surrounding it as the insanity defense. Today I’m going to shed some light on the issue.

  1. The insanity defense isn’t new. It’s documented in English common law as early as the 14th century.
  2. The legal definition of insanity has little to do with medical definitions of mental illness. It’s not only possible, but quite common, for a person to have a documented mental illness yet not meet the legal standard of insanity.
  3. The legal test for insanity varies by jurisdiction. The mostly widely used is the M’Naghten Rule, developed in a British case in 1843: Daniel M’Naghten attempted to assassinate the prime minister (and instead killed the prime minister’s private secretary). In order for the M’Naghten Rule to be used successfully, the defense lawyer must prove that because of a mental disease or defect, the defendant was unable to understand the nature of his actions or was unable to distinguish right from wrong.
  4. Four US states have abolished the insanity defense completely (Idaho, Kansas, Montana, and Utah).
  5. The insanity defense is used in fewer than 1% of criminal cases.
  6. The insanity defense is successful only about a quarter of the time.
  7. If a defendant is successful with the insanity defense, he will rarely be set free right away. Instead, he’ll almost always be committed to a mental hospital until he’s deemed no longer a danger to himself or others. Unless he was accused of a serious crime, this may mean he’ll spend more time in the hospital than he would have in prison. John Hinckley, Jr., for example, has been locked up since 1982, after he shot President Reagan and three other men in an assassination attempt.
  8. There have been attempts to reform the insanity defense. In the 1960s and 1970s, some states adopted tests that were easier to meet than M’Naghten and more in line with scientific knowledge of mental illness. But after Hinckley was successful with the newer defense, many of these states switched back to the old rule.

Incidentally, if you’re writing a serial killer, it’s very unlikely he’ll be successful with an insanity defense. Jeffrey Dahmer wasn’t deemed insane, despite killing 16 people—and committing necrophilia and cannibalism. Although most serial killers likely have antisocial personality disorder (and/or other personality disorders), these are generally not considered to be a “mental disease or defect.” Furthermore, most serial killers are quite aware of what they’re doing and that it’s wrong.

You may have heard the term “temporary insanity.” This isn’t a separate defense. It happens when the defendant claims she was legally insane at the time of the crime but has since regained mental stability. Its use is extremely rare. Probably the most famous case was Lorena Bobbitt, who cut off her abusive husband’s penis while he slept. The jury found her not guilty by reason of insanity, but after an evaluation at a mental hospital, she was released.

Making a Federal Case

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Jim winced when Agent Simon tightened the handcuffs. “Ow!”

“You’re not going to escape this time,” Agent Simon growled.

“Yeah, yeah. Look, I don’t know why you’re making such a big deal out of this. Nothing happened. I just sent out some letters is all.”

Agent Simon shook her head. “Sent out letters telling people the IRS had audited them and they’d face huge fines if they didn’t send you cash. That’s mail fraud, bub.”

Pretending nonchalance, Jim awkwardly shrugged. “So what? You don’t gotta make a federal case out of it.”

Oh yes, she does.

The vast majority of crimes in the US are handled at the local and state level. Local police arrest the suspects, state courts try them, and—if the suspects are incarcerated—they’re held in local jails or state prisons.

But sometimes the feds step in too. In these cases, the people are arrested by federal police (more on them in a moment), tried in federal court, and incarcerated in federal facilities. When does this happen?

  • When the alleged crime occurs in Washington, DC. That’s because the District of Columbia is, by design, outside of any state and under federal authority.
  • When the alleged crime occurs on federal property or on an Indian reservation.
  • When the alleged acts violate federal law.

Compared to the states, there aren’t many federal criminal laws. Many of them involve acts that affect interstate commerce, such as bank robbery or Jim’s mail fraud. The most commonly prosecuted federal offenses are drug crimes and immigration offenses. Few people are prosecuted at the federal level for violent crimes.

Although most people think of the FBI when they think about federal law enforcement, there are actually many federal law enforcement agencies, each with a specific charge. These include the DEA (drugs), IRS (taxes), ATF (alcohol, tobacco, firearms, and explosives), ICE (immigration and customs), U.S. Marshals (fugitives), air marshals, Secret Service, and more. There’s a good chance Agent Simon is with the postal inspectors.

Sometimes federal agencies may come in to assist local agencies when a crime crosses several local jurisdictions or when the investigation requires specialized knowledge. A common example of this in fiction involves serial killers. And yes, sometimes there’s friction between the agencies involved, just like you’ve seen in movies, but often the agencies cooperate fully.

Incidentally, despite double jeopardy protections, a person can be prosecuted by a state and the feds for the same crime. This is because of something called the dual sovereignty doctrine. You can read more about that here.

Double Jeopardy

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I find myself sorely tempted to make a bad joke involving Alex Trebek’s long-lost twin. But I’ll spare you.

The protection against double jeopardy is contained in the 5th Amendment to the US Constitution:

[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.

But the US didn’t invent the concept; we just borrowed it from English common law. The general idea is that it’s unjust to try a person repeatedly for the same crime.

There are two major repercussions to this right:

  1. Once someone is acquitted (found not guilty) of a crime, he can never be retried for the same offense. Period. Not even if three seconds after the acquittal is entered, he laughs evilly and admits his guilt. Not if new evidence is discovered. Not if God Himself comes down to Earth and says the guy did it.
  2. Once someone has been convicted and has completed his punishment, he can’t be given additional punishment for the same offense.

So if you’re a prosecutor, you want to make damned sure your case is solid before you step into court, because if you lose, you won’t get a second chance.

But the right also has limitations.

  1. Under something called the dual sovereignty doctrine, a person can be prosecuted by multiple jurisdictions for the same offense. Supposed George kidnaps Avery in California and drags him through Oregon and Washington before getting nabbed just south of the Canadian border. All three states can independently prosecute him for kidnapping, as can the federal government since the crime crossed state lines. He could get four separate convictions, four separate sentences. As a matter of policy, states will often decline to prosecute if the defendant is already facing hard time somewhere else—why spend the time and resources?—but that’s up to them.
  2. Double jeopardy doesn’t stop a person from being tried if he commits the same offense again. Suppose George is acquitted of robbery and the next day he commits a new robbery. He can be tried for the new one.
  3. Double jeopardy doesn’t stop a person from being tried for separate offenses. Suppose George not only kidnaps Avery, but also kills him. Even if George is acquitted of murder, he might still be tried for kidnapping. Law in this area gets sticky, so be careful. Suppose George stabs Avery and Avery survives. Now suppose George is acquitted of attempted murder—but two days later, Avery dies. Can George now be tried for murder? Probably, but it depends on the jurisdiction. Or suppose George kidnaps Avery, Barbara, and Carlos, all at the same time. If he’s acquitted of Avery’s kidnapping, can he now be tried for Barbara’s? And then Carlos’s? Maybe. Depends which rule the jurisdiction uses.

There are other complications too. Double jeopardy may or may not apply after a mistrial, depending on how and why the mistrial occurred. Double jeopardy doesn’t apply to civil matters (so even if someone’s acquitted, he can be sued) or to habeas corpus and other proceedings.

The takeaway for you as an author? Double jeopardy can make an interesting plot point, but take care how you use it.