Monthly Archives: March 2017

Plot bunny: plea bargaining dilemma

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Last week I gave you a plot bunny (big city cop in a small town!), and here I am with another. This one will work pretty well if you want a sympathetic protagonist with a criminal record.

Here are the facts. About 95% of criminal cases never make it to trial. The primary reason for that is plea bargaining, in which the defendant agrees to plead guilty—often to lesser charges—in exchange for a reduced sentence. (For more on plea bargains, check this previous post.)

Plea bargains offer a lot of potential benefits. The defense attorney has a lighter caseload. So does the prosecutor—who also gets another conviction credited to her. The courts have fewer cases, resulting in less expense and less backlog. And guilty defendants get a lighter punishment.

But. What if the defendant is innocent? What if he honestly didn’t commit the crime, but his defense attorney comes to him with a deal from the DA: plead guilty and spend, say, 5 years in prison, or go to trial and risk getting convicted and spending  even longer locked up? What if the stakes in this gamble are really high—as in a potential life sentence? What’s our poor, innocent hero going to do? Well??

(Incidentally, that handsome plot bunny was drawn by the very talented Catherine Dair. You should check out her other work!)

Plot bunny: big city cop

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I’m doing something a little different this week. Instead of giving you criminal justice facts, I’m giving you a plot bunny. If you write romantic suspense, listen up! Because this is a book I’d love to see written.

Here’s the background you need to know. Serious crimes like homicides don’t happen often in small towns, yet these crimes usually require experienced investigators if they’re going to be handled well. One way some towns get around this conundrum is by contracting with police departments in larger cities. If someone gets murdered in Tiny Town, the local cops can call on the homicide detectives from nearby Big City to investigate. The locals are still going to be involved, of course, but the Big City detectives will lead the show.

So… someone in your Tiny Town turns up dead. Make it someone juicy. The mayor? The high school principal? The mysterious reclusive millionaire with the estate at the edge of town? Local cops call in Detective Sexy from your Big City to see what’s what. And maybe sparks fly between Det. Sexy and Tiny Town’s police chief—but so do tempers, because maybe the chief isn’t best pleased at the detective’s big city ways.

Write this. Please?

History of juries

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I sort of have a thing for history, and today I’m indulging myself by talking about the history of juries.

Like many other components of our legal system, juries come to us from Merry Olde England. Way back when—and I do mean way back, because we’re talking at least as early as the 12th century—a group of local men would investigate claims and present the evidence under oath to the judge. Essentially they were both prosecutors and witnesses, and they were called presenting juries. This is quite different from our modern concept of jurors as people who initially know nothing about a crime, although presenting juries still exist to an extent in our modern system; today we call them grand juries, and their job is to determine whether enough evidence exists to proceed with a criminal prosecution.

In 1166, in an act called the Assize of Clarendon, King Henry II required presenting juries throughout England. This was part of his effort to standardize the legal system throughout the country and also to ensure he maintained power in a way that wouldn’t piss off his subjects too much. (This was shortly after the Norman Conquest, when not much love was lost between the Anglo-Saxon commoners and the Norman nobility.) It was a clever idea in that it provided local input into prosecutions while still allowing the king-appointed judges to be in charge. The size of juries was already set at twelve men, although the precise reason for this is not certain.

At this point many criminal cases were still tried by the Catholic church using trial by ordeal. The accused would do something dangerous, like carrying a hot iron, and if he wasn’t harmed, it meant God had been protecting him, which indicated he was innocent. But in 1215 Pope Innocent III called the Fourth Lateran Council. Among other things, the council forbade priests from officiating over trials by ordeal.

As it turns out, 1215 was an important year law-wise, because it’s also the year in which Magna Carta was signed. Magna Carta was essentially a peace treaty between King John and a bunch of unhappy barons who’d been at war with him. The charter limited the king’s powers in several respects, and it guaranteed trial by jury—at least for noblemen.

Stripped of the ability to use trial by ordeal and with Magna Carta as a model, the English legal system turned to those presenting juries as a handy way to determine guilt. These new kinds of juries were called petit juries—small juries—and over the years they were invested with a surprising amount of power, including  jury nullification. That’s the power to essentially ignore the law and acquit an guilty defendant when doing so is just.

English colonists brought their legal system to America. And we ran with the idea of juries, maybe due in part to our populist ideals. Today, the US uses juries more extensively than any country in the world—including the UK, which has scaled back on them in several respects. Most countries don’t use juries at all, leaving it to the judge to determine guilt. Here in the US, the laws and rules regarding juries have evolved as well, but in essence juries are an institution that has been in place for a millennium or so.

Warranted: the exclusionary rule

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Today is the final post on warrants—at least for now.

I’ll start with a story. In 1957, Cleveland police were looking for evidence of a bombing, and although Dollree Mapp wasn’t the suspect, they believed she might have evidence in her home. But she refused to let them in. So they returned a few hours later, waving a paper and claiming it was a search warrant. She snatched the paper and shoved it down the front of her dress; they wrestled her and took the paper back. With Mapp in cuffs, they proceeded to search her house. Inside a trunk in the basement they found pornographic books and pictures (the property, Mapp said, of a previous tenant). They arrested Mapp and prosecuted her for possession of illegal pornography. No warrant was ever produced at trial. It’s pretty clear none ever existed.

Mapp appealed her conviction all the way to the Supreme Court, arguing that because police did not have a warrant, the search violated her 4th Amendment rights. Therefore, she said, the evidence should be thrown out of court and her conviction overturned.

In Mapp v. Ohio, SCOTUS agreed. They articulated the exclusionary rule, which says that illegally obtained evidence can’t be used in court. This is a powerful rule because it means that sometimes people we know are guilty will still go free because the cops screwed up. But, the Court said, the rule was the only realistic way to deter police misconduct and protect constitutional rights.

As you might imagine, the exclusionary rule has been unpopular among a lot of people. Over the years, SCOTUS has carved out a number of exceptions to the rule. But the heart of the rule remains intact.

And this concludes our whirlwind tour of warrants!

 

Warranted: search warrants

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Today we continue our exploration into the complicated world of warrants. This time it’s search warrants.

A search warrant gives police the power to look through private property for evidence or contraband. A search warrant has to be specific about the place to be searched and the items to look for. Once police have a valid warrant, they can enter the premises and look anyplace the items might reasonably be. If they’re looking for a stolen car, they can’t check dresser drawers. But if they’re looking for something small, like drugs? They can look pretty much anywhere.

Generally speaking, police are supposed to knock and announce their presence before serving a warrant. This is to protect everyone. If you owned a gun and someone came crashing into you house in the middle of the night, you might easily shoot (or be shot) before realizing they were the police. However, if police believe that knocking and announcing will present a danger to them (or someone else) or might endanger the evidence, they can request a no-knock warrant. Then they can just come barging on in (which does sometimes end up with people getting killed).

The courts have drawn up a long list of situations in which warrantless searches are allowed. Probable cause is still needed in most of these cases, but police need not get a warrant. A sampling of these warrant exceptions:

  • Automobile exception—police don’t need a warrant to search an automobile or anything in the auto. This applies to other forms of transportation as well.
  • Search incident to arrest—if a person is placed under arrest, police may search anything within her reach, even if she’s in cuffs.
  • Plain view—police don’t need a warrant to search items within plain view (or plain smell). So if a cop is legally inside someone’s house and happens to spot evidence or contraband sitting out, that’s fair game.
  • Emergency—if there’s an immediate threat to anyone’s safety, or if police are in hot pursuit of a fleeing felon, they can enter without a warrant.

Want a plot bunny? Police get a no-knock warrant to search Claude’s house. However, before they can serve the warrant and while the warrant is still valid, Claude moves out and Deirdre moves in. Cops come crashing into Deirdre’s house in the middle of the night, she’s terrified and confused and reaches for a weapon, cops shoot her.