Kane County criminal defense lawyer Matt Haiduk has posted a response to my earlier post about the strangeness of the crime of possession, in which he address both of my scenarios and makes a few additional points.
In response to my hypothetical stranger-hands-me-a-duffle-bag scenario, Matt has some legal advice:
From a strictly legal standpoint, you need to drop all that stuff immediately. Possession of illegal stuff typically has to be “knowing” to stick in court. Holding that bag in those circumstances for a short time not knowing what’s in it is one thing- you’re not knowingly possessing something you shouldn’t. Once you see child porn, something you believe are drugs, and an illegal firearm the “knowing” element is shot.
You can cure that, though, by not possessing it. Legally speaking, you don’t take it anywhere to get rid of it and you don’t call somebody while you’re holding it. You cease possessing it immediately. Then you get the hell away from there…
And then Matt suggests that his legal advice is not the smartest advice:
You’re out on the street with a duffle bag filled with guns, coke and child porn. Depending what the surfaces on the bag or the items in the bag, your fingerprints might be on there. There are cops running at you who haven’t seen you yet, but just might if you do something out of the ordinary (like drop a duffel bag and run across the street).
Assuming that’s how it does go down, dropping a bag full of contraband in front of the cops and possibly having your fingerprints on the contraband inside is what prosecutors call a very strong circumstantial case.
Matt goes on to explain what he thinks is probably the smartest thing to do, but I’m not going to repeat it here. You’ll have to read his post to see.
Matt also addresses my not-so-hypothetical scenario of emergency Doctor Sandeep Jauhar who was handed an envelope of (presumably) cocaine by a client. He promptly threw it away, an act which has attracted criticism from Northwestern Pritzker School of Law Professor Steven Lubet. I in turn had criticized Lubet for accusing Dr. Jauhar of obstructing justice without explaining what exactly the doctor should have done. I felt that Dr. Jauhar did the best he could.
Matt, on the other hand, does better than both me and the law professor:
Patients every day enter a hospital in an emergency fashion with jewellery, a purse or wallet, or important documents. The hospital collects that stuff, and puts it into a safe or some sort of storage. Juahar could have placed the item in a bag, stapled it shut and put it with the rest of the patient’s belongings- whether in a safe or not.
In that situation there’s no hiding and there’s certainly no destruction. He’s not possessing it, either. He’s also not betrayed any patient confidences. He’s doing what is always done. If the police ask the Doctor about it, he can tell them what he did with it and where it went.
Note that Matt’s solution addresses the criminal law issue without abandoning doctor-patient confidentiality, which is the difference between asking a law professor (or a blogger) and asking a practicing lawyer.
(I say nice things about Matt Haiduk because his blog is a great read, but also because he’s the only real Illinois law blogger I know of, which makes him my first call if I ever get arrested.)