Crime & Federalism

I cannot read press accounts of the murder of Jennifer Hawke-Petit and her two daughters without tears forming. At least two men burst into the family home in the dead of night. They beat Dr. William Petit with a baseball bat. They raped the girls. They compelled the mother to go to a bank to withdraw funds, and then strangled her to death. Then they set the house afire, the girls dying of smoke inhalation as they lay tied to their beds. The father somehow escaped and must now live with memories that transform reality into a waking nightmare.

This savaged family looked too much like my own. Dr. Petit had earned a comfortable place in the world by dint of hard work. They were living the American Dream, it seemed.

Steven Hayes and Joshua Komisarjevsky stand accused of the crimes. Press accounts leave little to doubt about their involvement. They were seen fleeing from the home as it burst into flames. They had in their possession the money the wife was forced to withdraw from a bank. They tried to ram their way to freedom when they confronted a police roadblock while leaving the home in one of the family's car.

Why? Why this? Why this act of desecration of ordinary hope?

Truman Capote's In Cold Blood rendered the 1959 murder of the Clutter family in Kansas into a powerful piece of writing about greed's destruction of innocence. Two lost souls thought they could find a new life by taking some of the Clutter's money. They planned a robbery of this family, hoping the cash they'd find there would make their hopes and dreams come true. The killers met in prison where they'd heard that Mr. Clutter kept enormous sums of cash at his farm, a belief which turned out to be untrue.

These killers chose their target carefully. They planned the robbery.

And what of Connecticut's cold blood and hot, hot flames? Hayes and Komisarjevsky apparently met at a half-way house while finishing prison sentences. Both have long records as petty thieves and burglars. Initial police investigations suggest they selected the Petit family more or less at random. They spotted the mother and daughter at a grocery store, saw them get into an expensive car, followed them home, and thus marked their target. They returned hours later.

There is little doubt that New Haven State's Attorney Michael Dearington will seek the death penalty. Several lonely lawyers will then have the privilege of defending these men.

Did I say privilege?

We are at our best as a society when howling rage and incandescent anger are tamed by the rule of law. Cases such as these make our legal system stronger, not weaker. Consider the following: There was never, not once, any danger of an angry posse storming the jail to lynch Mr. Hayes and Mr. Komisarjevsky. We simply know better by now.

Last week's carnage in Cheshire is not a sign that we have gone soft on crime in Connecticut. And it does not require reforms at the Board of Pardons and Parole.As horrific as the crime was, there simply wasn't a way to foresee that two ho-hum crooks would snap and become vicious killers. Pretending otherwise merely makes us feel good as we stare merciless evil dead in the eye.

This epic act of savagery makes every bump in the night smell of Hell's sulfur. As we regroup, let's not lose perspective and believe we could have prevented this, or that we can, by being tougher on crime, keep the cloven hoof of evil from ever again crushing an innocent neck. That would be a form of blasphemy and conceit.

Reprinted with permission of The Connecticut Law Tribune.

Is there no end in sight to the expansion of the prison industry? Today's New York Times features a page one story about states exporting inmates to cope with overcrowding. One private prison company, the Corrections Corporation of America, reports that it will spent $213 million next year to build cells for an additional 5,000 prisoners.

Something is wrong here. We shouldn't be incarcerating an increasing number of Americans. Oh, I suppose one could argue that as the general population increases it is foreseeable that the prison population will rise as well. But overcriminalization also seems to be to blame.

Consider the so-called war on drugs. How many men and women languish behind bars due to what is primarily an addiction problem? Imagine how chock-full our prisons would be now had we not decriminalized alcohol. A jail cell for every alcoholic? That would be absurd.

We need to rethink prohibition of illegal narcotics. A crack addict is not deterred because the drug is illegal. He or she will buy from whomsoever is selling. Lock up one group of young salesmen, and another appears almost instantly. Demand drives the sale of illegal narcotics; locking up the sellers doesn't make a whole lot of sense.

Why not regulate illegal narcotics in much the same way that alcohol is regulated? It would be sold at fixed locations. The violence associated with street sales would decrease. And those purchasing could be made aware of treatment options. At least some of them might have a chance of beating addiction.

The King's Country Bar Association in Seattle is leading the way in proposing reform of drug laws. Read About it Here I had the good fortune to meet with a member of the association the other day. It was the first time in years I felt something like hope when considering illegal narcotics. Among the association's proposals: Persuading lawmakers what it costs to incarcerate an individual for a year and then requesting that those funds be diverted to treatment.

My mouth fills with ashes at the thought of calling for more government regulation. However, when the only option appears to be more senseless incarceration I am willing to swallow the ashes.

Prison overcrowding? The response should not be to build more prisons. Rather, we should ask how we are failing as a society when we elect to banish increasing numbers of people from our streets.

It is starting to appear that the answer is, Yes. 

UPDATE: I wanted to remind pro-war readers who are under 35-years old that the Army, while recognizing that the "war at home" must be fought, nonetheless needs you in Iraq.  Show your support for the War by doing something other than debating next to a water cooler: Support the troops by becoming one!  Did I mention there are $40,000 in signing bonuses available? 

I am perplexed and disturbed by this development:

The Army is now offering a $20,000 "QS" – or “Quick Shipper” -- bonus to new and prior service recruits joining, selecting any job and shipping out for training within 30 days.

"The Q.S. letters means "quick shipper," said Columbus Recruiting Battalion spokesperson Tom Foley in a news release. "And $20,000 means, well, it means a lot of seed money for new soldiers answering the Army's call to duty. The Army is growing in size and we simply need more recruits for training, now."

Why given an enlistment bonus to soldiers when, as every healthy, under-35, pro-War Republican I know has told me: "There is work done to be back home."  There is, indeed, a need for young men and women to argue, from the comfort of air-conditioned classrooms and offices, that President George W. Bush's War in Iraq is a good for the world.  Thus, the article is upsetting. Why aren't people "fighting the war at home," also being offered a $20,000 bonus? 

At the very least, all of my college and law school classmates who supported the War should be offered loan forgiveness of some sort.  After all, if these classmates of mine hadn't support the invasion of Iraq, how would the War have been fought?  How will the United States sustain its war effort when these intellectual warriors are being denied just compensation for their herculean efforts?

I hope this very important matter is brought to the appropriate person's attention.

A man fled from police.  Two helicopter pilots followed with camera crews.  After disobeying numerous federal safety laws, they crashed.  As one would expect to happen, prosecutors intend to charge the fugitive with the murder:

[P]olice officials intend to push the Maricopa County Attorney’s Office to file homicide charges against Christopher Jones, 23, who is accused of leading the police chase that the television news crews were following when their helicopters crashed.

Jones was booked Saturday on four counts of aggravated assault, two counts of vehicle theft and resisting arrest. No other charges were filed, but under Arizona law he could face homicide charges if prosecutors can show that his actions directly led to the crash that killed the four newsmen.

“This is going to be a tough one,” said former Maricopa County Attorney Richard Romley. “If it were up to me, I would do everything in my power, but this is going to be very hard to prove.”

This case raises an interesting issue of causation: When someone voluntarily follows a known danger, and then acts negligently, can he blame someone else for his (self-imposed) harm?  While we are talking causation: Who is responsible for the pilots' deaths? 

We are.

We Americans sit on our couches eating Oreos and watching television news - looking for some sensation to awaken us from our lives of quiet desperation.  "Oooh, a car chase.  Now this is news!"  My local television station seems to have a "stop everything" policy when a car chase ensues.  The War in Iraq?  Scratch the coverage.  The massacre in Darfur?  Who cares -- We have a car chase to cover!

We create the demand for such "news."  If we demanded actual reporting instead of tabloid journalism, then we would get actual reporting.  But since we demand junk food for our minds, it's junk food we get.

It's not the fugitive who is responsible for the pilots' deaths.  It's us lazy Americans who seem to live such pitiful and uninspired lives that we have nothing better to do than watch car chases on television.

UPDATE: Similar thoughts here.

I wonder sometimes whether jurors agonize much over standards of proof. Sit and actually listen sometime to a judge's instruction on the topic. A layman's eyes can't help but to glaze over.

In State v. Jackson, our [The Connecticut] Supreme Court decided it was time to toss some of the mumbo jumbo aside. It endorsed language singularly lacking in conceptual rigor. Jurors in criminal cases, the high court held, need only be "firmly convinced" of a defendant's guilt in order to convict. Why not be honest about it and permit jury nullification, too?

Here's the new mantra: "Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant's guilt. There are very few things in the world that we know with absolute certainty, and in criminal law cases, the law does not require proof that overcomes every possible doubt. If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find him guilty … . If, on the other hand, based on the evidence or lack of evidence, you have a reasonable doubt as to the defendant's guilt, you must give him the benefit of that doubt and find him not guilty."

This is thin and cynical gruel. A police officer can be firmly convinced that there is probable cause for an arrest. Yet the standard is one of the law's lowest. A civil jury can be firmly convinced it is more likely than not that a tort was committed. Yet the preponderance standard is less demanding, at least in theory, than the criminal standard.

Detaching proof beyond a reasonable doubt from any conceptual mooring is a mistake. Other definitions at least had the grace of demonstrating that the burden of proof in a criminal case is the law's highest. The two construction rule requires a jury to acquit if there are two reasonable constructions of the evidence, and one of them is consistent with innocence. Most judges won't give that charge. I suspect they are worried about too many acquittals.

My sense of juries is that they try to do the right thing with what they are given. They struggle to determine facts and work to understand the law provided them. Dumbing down the reasonable doubt standard trivializes a bedrock principle in the criminal law. The standard is intended to be high and difficult. It is better that 10 guilty men go free than one innocent person be convicted, we used to believe.

The author of the new instruction, New Haven Superior Court Judge Jon C. Blue, had this to say about the dumbed-down charge: "Over the years, I've become convinced that jurors' eyes glaze over when it is given and it is not fully understood and, therefore, does not do adequate justice to the parties. I believe," Blue stated, "it needs to be modernized, simplified, put into plain language but, obviously, appropriate language."

Frankly, my eyes often glaze over when Judge Blue speaks. He can make good morning sound like an unfinished doctoral dissertation.

I've not noticed jurors stumble over reasonable doubt any more than the dozens of other topics with which they grapple. On Blue's reasoning we should perhaps eliminate all discussion of such mental states as intent, specific intent, recklessness and negligent.

I don't know whether to hope the Jackson decision will be reviewed by the U.S. Supreme Court. Imagine what the new Roberts court could do with reasonable doubt. Perhaps it would endorse the "where there's smoke there's fire" rule. You know the doctrine. It's the one that views the presumption of innocence as an expensive luxury.

Reprinted with permission of The Connecticut Law Tribune.

United States District Judge Alan Nevas last week heard oral argument on whether to dismiss charges against Connecticut attorney Phil Russell. Russell has been charged with  violating 18 U.S.C. Section 1519. That provision makes it a crime to tamper with potential evidence in "contemplation" of a federal investigation.

At issue is Russell's decision to destroy a computer containing child pornography. He represented a church. When one of the church's employees was found to have been looking at kiddie porn, Russell sent the man packing, and then dismantled the computer. When the man was later charged by the feds, he flipped on Russell to earn points under the federal sentencing guidelines for substantial cooperation with law enforcement.

Section 1519 is a Sarbane-Oxley amendment to the federal penal code. It broadens criminal liability for tampering with evidence. An official proceeding need not actually be in place. The government need only show that such a proceeding is reasonably foreseeable.

Judge Nevas did not seem inclined to dismiss this action at oral argument. At one point, he asked Russell's counsel whether reasonable foreseeability, like reasonable doubt, was a jury question. The question conflates the role of a legal standard in evaluating proof with the requirements of due process calling for adequate notice of prohibited conduct. At what point does reasonable foreseeability become speculative?

In this case, the judge and parties seemed to agree that the church had a duty to inform someone once pornography was discovered on the computer. Isn't the church a mandated reporter to the Department of Children and Families (DCF), the judge seemed to ask. Yes, the church is a mandated reporter, but in this instance there was nothing to report. The law requiring mandated reporting was designed to assure that children at risk receive services: turning over a pornographic tape does not do that. It begs the question of whether the images are really those of a child, and it also suggests that DCF can take any realistic steps to protect an anonymous child captured on tape.

What troubles about this novel prosecution of Mr. Russell is that it seems to lead in one direction: We are all required now to turn over inculpatory evidence to the federal government. If we actually destroy evidence, then we are guilty of a crime. Does that make constructive destruction of evidence, to wit, failing to make it available to the Government, a crime?

The Russell prosecution is a test case. It arises on the worst set of facts possible for jury appeal. One would hope that Judge Nevas would toss this case. But it seems destined for trial.

Do you know how to spot e-mail scammers and spoof web pages?  If you're up to the challenge, take this test. 

In case you somehow missed the memo that the editors of the New York Times have a serious problem with racial bias, check out this post.

The New York Post has a great scoop:

Think you're safe from trans fats after the city's ban went into effect July 1?

[A] survey of several popular city eateries - from swanky bistros to late-night diners - found shocking levels of trans fats in some dishes.

Shocking levels of trans fat.  Guess where these shocking! levels were found? 

A Post reporter visited 12 restaurants in three boroughs and asked for a side of fries - only to discover that five contained the dangerous fat.

Read that again: The Post is shocked because they found trans fat in... french fries.  My gosh -- If only you eliminated the trans fat from french fries, you would solve the obesity problem.  Do people really believe this stuff?

In case you didn't know, here is why french fries will make you fat: A combination of saturated fats and carbohydrates spike insulin levels.  When insulin levels are elevated, the body begins storing fat - almost immediately.  So the fries literally go to your thighs (if you're a woman) or stomach (if you're a man).  Of course, no one needs a lesson in physiology to know that eating french fries isn't healthy.

Yet New York City and the Post are obsessed with trans fats, even though trans fats are not the problem in anyone's diet.  Why the fixation on trans fat?

The obsession with trans fat seems part of a broader trend - what Kip calls the "politics of the warm and fuzzy feeling."  Under this (new?) political strategy, legislatures pass laws that do not fix anything.  The laws feels nice, but accomplish nothing.  Sort of like giving up tangerines.  The process goes as follows:

1.  Identify a serious problem.
2.  Find some marginal cause of that problem.  (Or, heck, just pretend that something is a cause of the problem.)
3.  Ensure that no one likes or understands the marginal cause.  In other words, make it something easy to go after.
4.  Attack the marginal cause.
5.  Having solved the problem identified in Step 1, have a group hug.

Here, the problem is obesity.  Even though trans fat has almost nothing to do with obesity, it's something that can be banned without anyone having to make any real sacrifices.  You can still eat those french fries!  As you dip a french fry into sodium-laden ketchup, you can even congratulate yourself on living a trans-fat-free lifestyle.  You, dear citizen, are willing to make such sacrifices for your own health and for the public good.

The trans-fat ban is worthless legislation aimed at people unwilling to take personal responsibility for their daily food choices.  It ain't the 3 grams of trans fat in the french fries that will kill you: It's the french fries.