Author Archives: Kim

I swear!

by

This week’s post is inspired by a news clip, which you can watch here:

http://www.cnn.com/videos/politics/2017/12/12/roy-moore-campaign-spokesman-swearing-on-bible-tapper-lead.cnn

The federal government and states require people to take an oath before being sworn into office. Jurisdictions vary as to which offices require the oath. I know California is broad in its requirements, because I had to take an oath before becoming a professor at a state university.

The content of the oath varies a bit, but generally the person swears to uphold the US Constitution and to faithfully discharge the duties of the office. If it’s a state office, the person will also swear to uphold the state constitution and laws.

The person who administers the oath varies as well. It might be a judge or another government official.

While some people may choose to lay a hand on the Bible during the oath, that’s tradition rather than a requirement. In fact, several US presidents have opted out of this. Similarly, although oaths may include the phrase “so help me God,” that phrase can be omitted. (For the record, neither the Bible nor that phrase were included in the mass oath-taking when a bunch of us became professors.)

Some people oppose oath-taking, primarily on religious grounds. In those cases, the person can make essentially the same promises–without the Bible or reference to God. Those are generally called affirmations rather than oaths, but they serve the same purpose.

 

Peachy!

by

Hey, you know what it’s time to talk about? Impeachment! Totally from a legal point of view, no political agenda here, la-la-la.

Let’s be clear on the terminology. In the US, impeachment is the bringing of formal charges against a government official, by the US House of Representatives. Impeachment is not a guilty finding–it’s only the beginning of the process similar to an indictment in a criminal case. Government officials may be impeached for “high crimes and misdemeanors.” Whatever that means; the Constitution doesn’t specify.

Impeachment happens when a simple majority of the House votes to bring articles of impeachment. These will specify the offenses with which the official is being charged. The trial itself is held in the Senate. If two-thirds or more of the Senate finds the official guilty, he is removed from office. He may face additional punishments as well, such as being barred from holding future offices. An guilty finding in an impeachment case won’t send the official to prison, but ordinary criminal charges may also be brought against him.

Impeachment can be politically fraught, which helps explain why it has been used rarely. Only two US presidents have been impeached–Johnson and Clinton–and both were acquitted in the Senate. Nixon resigned before he could be impeached. A handful of federal judges have been impeached (including one Supreme Court Justice, Chase, who was acquitted).

Oh, and in case you’re wondering, the articles of impeachment against Clinton and Nixon both included accusations of obstruction of justice, among other things. So, you know, it’s fairly well settled that presidents can be charged with that, despite claims otherwise.

 

Unhanging a jury

by

Traditionally, juries have been required to reach a unanimous decision. A few states do allow non-unanimous convictions (such as by a 10-2 vote), but they’re in the minority. So what happens when a jury can’t reach a decision?

If a jury is well and truly stuck, the judge will declare a mistrial. The prosecutor has the option of bringing charges again (double jeopardy doesn’t prevent this), but of course that will involve lots of extra time and money for the government. Plus the accused and any witnesses will have to go through another trial. Judges really, really don’t want this to happen.

If the jury is hung, about half the states allow something called an Allen charge. Allen charges are allowed in federal cases as well. Named after an 1896 murder case, an Allen charge is essentially a plea from the judge to the minority members of the jury, urging them to consider joining with the majority. The charge emphasizes the potential costs of a retrial, and it points out that the evidence was strong enough to convince most of the jurors. It’s worded strongly enough that it’s often called a “dynamite charge.”

The Allen charge is controversial. Many argue that it’s coercive. For that reason and others, about half the states forbid it. In those states, if a jury is deadlocked, a judge may ask them to consider further. But if that gets them nowhere, a mistrial will be declared.

Off to prison again

by

Last week I had the chance to tour Eastern State Penitentiary, which operated from 1829 to 1971. It was, arguably, the first modern penitentiary in the US. Last week I blogged about its philosophy; this week I have photos!

Like may 19th-century prisons, ESP looks like a fortress from the outside, an intentional part of the design.

 ESP was isolated from the rest of Philadelphia when first built, but the city soon grew around it. It’s only about a mile or so from the city center.

Originally, inmates were kept alone for the length of their confinement. The photo on the left shows a restored cell. Inmates were expected to work in their cell, and were given two daily 30-minute breaks in a tiny exercise yard (that’s what’s on the other side of that little door). They didn’t interact with anyone other than guards and ministers, priests, or rabbis. After a century or so, ESP abandoned this model for a variety of reasons. And as you can see in the photo on the right, the prison decayed considerably after it was closed and before it was reopened for tours.

I got some amazing photos of this place.

That photo on the right is a punishment cell. It’s half the size of a regular one, with no outdoor access.

If you’re in Philly, I strongly recommend a visit to ESP.

 

 

Solitary or silent?

by

This week I’m in the middle of my fifth trip in two months, and this time I’ve transported across the country to Philadelphia. If I’m lucky I’ll get a chance to tour Eastern State Penitentiary (ESP). If I make the tour, I’ll post pics.

So today’s a good chance to discuss two competing early models of prisons. The first of these, called the solitary or Pennsylvania system, was pioneered at ESP in 1829. As the name suggests, inmates were locked up alone and were visited only by prison staff and clergy. The inmates were supposed to work during the day. It was thought that this system was more humane than the models of incarceration otherwise in use, in which large groups of prisoners shared cells–often leading to violence, victimization, and further criminal behavior. It was also assumed that solitary confinement would give inmates the opportunity to consider the errors of their ways and reform themselves. That’s why these prisons were called penitentiaries.

The competing model was called the silent or Auburn system, after Auburn prison in New York. In these prisons, inmates spent the night in solitary cells. During the day they worked together, but they were not allowed to speak to one another. Corporal punishment (flogging) was widely used. This treatment was intended to dehumanize them and turn inmates into obedient factory workers.

The Auburn system was ultimately more popular. For one thing, inmates kept in solitary confinement for extended periods tended to go crazy. Prison overcrowding—a problem even in the 19th century—soon made single-occupancy cells impossible. And from a practical viewpoint, inmates could achieve more work and more kinds of work when they were in groups. This factor became important when people realized the potential profits from prison labor.

Both the Pennsylvania and Auburn systems eventually fell out of favor, replaced by other models of imprisonment. But if you have a story with a 19th-century prison setting, you might want to research which of these models was in use in your jurisdiction.

Does TSA get TMI?

by

I am fitting in a quick post right after trip #1 and before trip #2 (which will be closely followed by trip #3). Since all of these involve air travel, now is as good a time as any to mention the searches we must go through before getting on a plane.

By any measure, these searches are intrusive. They make us show ID (on my last trip, an agent was jovially playing Guess the Ethnicity of People’s Last Names). They go through all of our personal belongings, often in fine detail. They make us empty our pockets and take off shoes, jackets, and belts. They send us through a machine that allows them to essentially see us naked. And when mysterious blobs show up on the machine, they pat us down. All without the slightest suspicion that we’ve done anything wrong, or that we plan to. Doesn’t that sound like a violation of the 4th Amendment’s prohibition of unreasonable searches and seizures?

The courts don’t think so. They’ve ruled that plane travel constitutes a special circumstance permitting searches that wouldn’t be otherwise allowed. (Other special circumstances involve public K-12 schools and railroad and Customs employees.) When special circumstances exist, the courts take a balancing approach, weighing the degree of the intrusion against the need. Given the potential for hijackers and other violence in the air, the courts have concluded that what TSA puts us through is permissible.

Yeah, I wonder if the SCOTUS Justices have to go through that machine.

If you object to these searches? I guess you can always drive or take a train.

Incidentally, searches can be even broader at international borders. This means not just our physical borders with Mexico and Canada, but also seaports and airports that receive international flights. It also includes areas within 100 miles of our borders—and if you look at a map, you’ll see that this includes some pretty substantial population centers.

On a flight from Paris to Zagreb, I once forgot I had a penis-shaped brioche in my carry-on bag. It amused the French security guys quite a lot. Now I’m off to pack.

Movies that get it right

by

I just spent the weekend at a work retreat, and I’m about to embark on the first of several airplane jaunts. So my postings might be a bit sporadic for a few weeks. But I wanted to bring up a topic I was discussing with my colleagues this weekend: movies that get criminal justice right. Although I often critique portrayals of the justice system, sometimes it’s done well enough that I use a clip in my classes to illustrate a point. Sure, we can allow the filmmakers a bit of room for artistic license and the needs of the film, but here are a few well-executed movies to begin with. Do you have any to add to the list? Please mention them in the comments.

12 Angry Men

My Cousin Vinny

Cool Hand Luke

American History X

Inherit the Wind

Serpico

Shawshank Redemption

 

Police communication

by

Today’s post is going to be especially relevant to folks who write spec fic or historicals. It has to do with the backbone of law enforcement: communication.

Nowadays, communication equipment is paramount to policing. That equipment comes in many forms: The emergency calling system (911 in the US) and the dispatchers it connects callers to. Police radios, computers, and phones. Dashboard and shoulder cameras. All of these create ways for police to communicate with the public and with each other.

But have you ever thought about how communication was managed before all these gadgets were available?

Prior to the late 19th century, if someone needed to call the cops, that person had to run to the police station and fetch them. In some places, rattles or bells were used, but as you might imagine, the range was limited, and the sounds could get swallowed in a noisy city. Furthermore, while these means might summon the cops, there was no effective way for police to communicate with each other.

The first police telephones came about in 1877. These were installed in public places, in boxes or kiosks, and allowed citizens to call the cops. An officer on the scene could also use the phone to talk to people back at the station. (TARDIS-style call boxes were introduced in the UK in 1929.) Police didn’t begin using two-way radios until 1933. Of course, portable computers and mobile phones arrived many decades later.

Even after police acquired improved communication devices, significant problems remained. One of these was incompatibility: the system used in one jurisdiction might not be able to connect to the system used in a neighboring jurisdiction. This made it hard for agencies to cooperate and share information. And since the US has a fragmented law enforcement system with thousands of different agencies, a single criminal event might involve multiple agencies.

The upshot of all of this is that if you’re basing your story in a different time than now—or in a different world—you should put careful thought into how your police will communicate. You could even use this as a plot point. While someone’s trying to call the cops in, say, 1840s Boston, your Bad Guy could be committing a lot of bad acts. Maybe that’s a good chance for your hero to step in?

 

 

Truth nuggets

by

If you watch crime shows, you’ve seen it a zillion times. A crime happens. The attractively dressed detectives gather evidence (or at least stand around looking good while someone else does). The evidence goes to the lab. Minutes later, the lab has an answer. And zap! the bad guy’s in custody, soon to be followed by a conviction. Roll credits.

Makes for a good story, but that’s not how things really work. Several truth nuggets about this scenario:

  1. Over 80% of arrests are made by uniformed officers, not detectives.
  2. Real detectives are generally not as pretty as the ones on TV, and they definitely don’t dress as well.
  3. A large percentage of crimes have little or no physical evidence—so there’s nothing to send to the lab. Or if there is any physical evidence, it’s of little value. When I was in college, I got robbed at gunpoint in the deli where I worked. The cops dusted the counter for prints, but dozens of people had touched that counter since I last wiped it. The chances of getting quality prints of the perp were about zero.
  4. Labs are backlogged. Sometimes for years. Even in an important, high-profile case, it will take many months before lab results are in.
  5. Scientific testing is not infallible. Lots of things can go wrong. Evidence can be mishandled. The lab tech may be unqualified or inept; there have even been cases where they deliberately falsified evidence. The science itself may not be as reliable or as valid as we assume. Even such a seemingly simple scientific technique as fingerprint analysis has been questioned.

I think all these truth nuggets can be exploited to craft a story that’s fresh and cliche-free. They create a host of plot possibilities. So use them!

But he said I could!

by

Let us suppose that a very large man—we’ll call him Chris—runs full speed at another man, who we’ll call Alex. Chris launches himself at Alex headfirst, using his arms to carry Alex to the ground, where Chris lands on top of him. Wow. That sounds like assault and battery, right?

Or what if Floyd repeatedly uses his fists to pummel Conor in the face and head, his ultimate goal being to beat Conor so badly that Conor can’t stand up again? Also assault and battery.

Except… not. Because if we stick jerseys on the first two guys and gloves on the second two, we have a different story. We have professional sports. And in the extremely unlikely event that Chris or Floyd were prosecuted for his actions, he’d have a good defense: consent.

The general idea behind the defense of consent is to avoid criminal liability when the “victim” has agreed to be victimized. And there are some interesting twists to this defense. For one, the victim has to be capable of granting consent, which means he can’t be too young, too mentally disabled, or too intoxicated. The consent must be entirely voluntary and not due to threats. Consent is also generally not allowed as a defense in homicide cases, although the idea of assisted suicide has changed some views on that point. And the actions taken must be within the scope of the consent.

That last point has led to some interesting cases. Several hockey players have been convicted for exceeding the game’s permissible boundaries and attacking opposing players. But the extra violence has to be truly excessive. For instance, Mike Tyson was never criminally prosecuted for biting off a chunk of Evander Holyfield’s ear. This could make a really interesting plot point, and it’s one I haven’t seen explored in fiction. So have at it!