Category Archives: Legal

Over at Fault Lines, Andrew Fleischman has a post about the idea of letting a jury determine actual innocence. It’s an interesting post — worth a read — but when I read the headline I thought of something a bit different.

Criminal defense attorneys complain about the difficulty of getting a jury to understand the degree of proof necessary for a criminal conviction. They often feel that the jury is setting the bar for a Guilty verdict at something less than “beyond a reasonable doubt.”

My thought (and I know it’ snot original) is that maybe the problem is that we only give the jury two choices: Guilty and Not Guilty. It would be natural for them to regard these as equal choices and lean toward a Guilty verdict if they thought that was more likely, which is a problem because “more likely” is a much less strict standard than reasonable doubt.

Perhaps we could obtain a small improvement in criminal justice by offering the jury a few more choices to pick from, such as Guilty, Not Guilty, and Actually Innocence, with only Guilty counting as a conviction. Or maybe we could offer an array of choices in a familiar form:

Please rate your opinion of the defendant’s guilt on the following scale:

5 – Guilty beyond a reasonable doubt.

4 – More likely guilty than innocent.

3 – Unable to tell.

2 – More likely innocent than guilty.

1 – Innocent beyond a reasonable doubt.

The defendant would only be convicted if all members of the jury picked #5. I suspect prosecutors wouldn’t like a procedure like this, although as long as the court imposes an “all fives or no fives” requirement, it would be the exact same standard of proof.

I know I’m not the first one to think of this. In fact, some criminal defense lawyers like to explain the different levels of proof to the jury so they understand just how strict the “beyond a reasonable doubt” standard usually is. Basically, they’re trying to get the jurors to think about the reasonable doubt standard as the highest in a stepped series of levels of proof. So why not make it explicit?

I don’t know if it makes sense to give the other levels any legal significance — e.g. a verdict of “innocent beyond a reasonable doubt” blocking plaintiffs in a civil suit from claiming otherwise. That might be using the verdict for more than it actually establishes.

Anyway, posting here has been light lately, so I just thought I’d throw that out there.

I’ve been blogging about criminal justice issues for a long time now, and I like to think I know a few things (for an amateur observer) but every once in a while I am amazed to discover that some seemingly normal part of the criminal justice system is, on further examination, inexplicably perverse.

This time it started with Ken Womble’s post at Fault Lines about risks faced by criminal defendants who are stuck in jail awaiting trial when they call their friends and family. Jail phones are tapped, and everything the inmates say on them is recorded. There’s an exception for legally privileged conversations between defendants and their lawyers (mostly), but other than that, anything inmates say to their friends and families is fair game for the prosecution. Womble gives a few examples of the kind of trouble that can lead to:

Yes, sometimes, the jailed party unburdens himself and confesses to his mom or brother.  But then there are the conversations about the case that a prosecutor, hearing things only through his finely tuned ears of justice, will try to convince a judge are relevant admissions of something bad.  […]

Beyond the realm of possible confessions, though, there can be hours of conversations that can let the prosecutor know who the defendant’s closest friends and family are. She can find out immense amounts of background information that might come in handy on cross examination.  This system of surveillance allows the government to detain someone and then sit back and simply gather information on them.  All because the defendant could not afford bail.

These calls also allow the prosecution to hear the defendant relay to his friends and family all the great tactics and evidence that his attorney has explained will help out his case.

Except for some details, most of this was not news to me. I’ve heard lawyers’ stories of charges filed and cases lost because inmates said something incriminating over the jail phones. Every criminal lawyer will tell their clients not to talk to cops, but inmates desperate for contact with the outside can easily forget that talking on the jail phone is talking to the cops.

What got my attention was Womble’s introduction of this issue in an earlier paragraph:

Maybe in reality they did commit a crime, but as far as the government and our law is concerned, they are as innocent as you or I. So if we actually give a damn about the presumption of innocence, why do we allow something done to unconvicted inmates that we would never tolerate for ourselves? We rarely think about some of the more mundane casualties of freedom that so many jail inmates must face.

I couldn’t get that idea out of my head, so I was still thinking of it when I got to this:

Do you know who does not have to worry about having their phone calls recorded as they await trial? People who can afford bail. How can we allow the government to record the phone calls of legally innocent people based solely upon their financial circumstances (or lack thereof)?

If you’re in jail because you can’t make bail, the government can listen in on every one of your phone calls. But if you’re out on bail, law enforcement authorities need to get a warrant to listen to your phone calls, just like they do with anyone else. What’s the legal justification for that distinction?

My guess is that authorities are allowed to listen in on inmate phone calls because inmates have essentially no right to privacy. Guards can search their cells and their bodies any time the want, so why not their phone calls too? But that just begs the question: What’s the legal justification for giving pretrial detainees so little privacy?

In other areas of law, infringements of rights must be limited to what is necessary to serve a constitutionally permissible purpose. E.g. when the government limits freedom of speech to prevent fraud, that limitation is supposed to be narrowly tailored to only limit rights as necessary to prevent fraud.

So if we accept that the government has a legitimate interest in making sure that defendants show up for their trials, then detaining them in jail may reasonably serve that purpose, and it makes sense to impose restrictions on detainees to prevent them from escaping. However, skimming over the New York City Department of Corrections inmate rule book and visitor’s rules, I was able to hastily put together a short list of restrictions that seem unrelated to that purpose:

• Inmates can only receive gifts from visitors if the gifts are on a list of 24 categories of items that may be brought in.
• Inmates are not allowed to have personal shoes. They have to wear jail-provided footware, and that doesn’t include shower shoes like thongs.
• There are limits to the jewelry they can wear — small wedding rings and religious items.
• They can’t have clothing that is red, yellow, or light blue, nor can they have camouflage patterns or spandex leggings.
• They can’t have tobacco products or alcohol.
• Inmates cannot receive toiletry or food items.
• They’re not allowed to have telecommunications equipment such as a phone, text messaging device, camera, or tape recorder.
• Inmates can’t have photographs that include pictures of themselves, and Polaroid photographs are prohibited.
• They aren’t allowed to have money, checks, or credit cards.
• They aren’t allowed to have unauthorized art supplies or writing instruments.
• No sex, even if it’s consensual.
• No buying or selling of goods or services.
• Inmates are subject to drug and alcohol testing.
• Visiting hours are limited and visits are controlled.

It’s possible I’m misunderstanding some of the rules — I read through them pretty quickly and I don’t know much about life in jail — but it’s hard to see how these rules are related to preventing escapes. Perhaps I’m missing a few things — maybe large jewelry could be used as a weapon to threaten a guard, and then once the inmate makes it to the treeline the camouflage would help him hide. Nevertheless, most of these restrictions seem to have little bearing on the goal of ensuring that inmates stand trial.

I understand that there may be good reasons for some of these rules — preventing inmate-on-inmate violence, preserving a sense of order, and making the guards’ jobs easier — but those don’t sound like good reasons to deny legally innocent people their rights, especially since we have rejected those same restrictions for all the innocent people living outside the jail walls.

(I’m pretty sure there are some unsavory motives at work as well: Forcing inmates to buy consumer goods from the jail commissary, forcing them to use over-priced jail phone services, and encouraging them to take a plea deal to get out of jail.)

I realize this is old news to people who know the criminal justice system better than I do. I wonder, however, why this isn’t a more contentious issue? Perhaps I’m just not reading the right news sources. Changes to jail rules might affect thousands of inmates and their families, but they rarely make the news. Or maybe this is settled law, and there’s not much to be gained by litigating.

I’m not sure what reform in this area would look like, but it’s not hard to envision a jail system that prevents inmates from escaping without imposing so many unrelated restrictions. I imagine something resembling a high-security secured college dorm or SRO residence, with private rooms, personal property, phones and internet, pets, and unlimited visitation from family, including overnight stays.

I realize that this vision of comfortable confinement may not be achievable, but that usually isn’t enough to stop reform movements. I’m surprised I haven’t stumbled them somewhere. And nobody said respecting people’s rights was easy.

Folks on the internet have been a bit outraged at a woman who sued her 8-year nephew:

Jennifer Connell claims the boy, Sean Tarala of Westport, acted unreasonable when he leaped into her arms, causing her to fall on the ground and break her wrist four years ago. This week Connell is asking a six-member Superior Court jury to find the boy liable for his actions.

She is seeking $127,000 from the boy, who she described as always being “very loving, sensitive,” toward her. The boy is the only defendant in the case.

It sounds kind of awful, suing a child for essentially hugging her too exuberantly, but this is actually a pretty routine legal matter.

The key to understanding what’s going on, and why Jennifer Connell is not actually the monster some people are making her out to be, is that while she is technically suing her nephew, the real target is the insurance company that holds the homeowner’s policy. The kid is just the defendant for legal purposes, since he’s the immediate cause of her injury, but he was almost certainly represented by an insurance company lawyer since they would be the ones paying. People do this all the time. It’s how you make insurance companies pay claims.

Much has been made over a few of the details:

In court Friday, the boy, now 12 years old, appeared confused as he sat with his father, Michael Tarala, in the Main Street courtroom.

The implication is that he was confused over why the aunt he loved was suing him, but I think it’s safe to say that any 12-year old would be confused by the formality of a courtroom. Heck, I find it all confusing whenever I’m at the courthouse.

The boy’s mother, Lisa Tarala, died last year.

That’s hard on the poor kid, but that’s not a reason to let the insurance company off the hook.

Jack Marshall, who should know better, has been particularly scathing about some parts of this:

The horrific actions of the 8-year-old has turned her life into a living hell, she told the jury. “I was at a party recently, and it was difficult to hold my hors d’oeuvre plate,” she said. Believe me, I know what a social handicap that can be.

Yeah, when you see “hors d’oeuvre” written out, it’s easy to make fun of, but here’s the thing: I can hold an hors d’oeuvre plate. Holding a plate with small bits of food isn’t a difficult feat of strength. But the point of her testimony is that she still can’t hold a plate steady even though the injury has had four years to heal. This isn’t just a temporary problem. It’s a permanent debilitating injury.

The extent of the injury is further indicated by another point that people are making fun of:

She changed her mind, she says, because her life was “turned upside down as a result of the injury.” “I live in Manhattan in a third-floor walk-up so it has been very difficult,” she said. “And we all know how crowded it is in Manhattan.”

It certainly is hard to walk up three flights of stairs on one’s hands.

As a 51-year-old guy with bad knees, I say fuck that ableist bullshit. Did you ever notice there are railings in most stairwells? Did you ever wonder why they’re there? It’s because some of us need to hold on with our hands to steady ourselves on the stairs, especially when carrying something that throws us off balance. That’s got to be a lot harder when your wrist is weakened by injury.

As it happens, the jury decided against her because of the way the jury was told to evaluate the kid’s behavior:

Quinnipiac University law professor William Dunlap said in civil cases like this one involving children, the jury is instructed to view the child as a child, and not by a “reasonable person” standard.

“When you’re talking about young children, you’re talking about a subjective standard – not an objective standard,” he said. “The child is not required to conform his behavior to the way a reasonable adult is expected to behave.”

If the defendant had been 18 at the time of the incident, he would have been expected to act like a “reasonable adult.”

“The jury is supposed to judge the child’s behavior by how a child of similar age, intelligence and experience is expected to behave,” he said.

So she took her chances when she visited an 8-year old. Fair enough. And New York personal injury lawyer Eric Turkewitz says he would not have taken the case:

Would I have taken such a case? No. Because the jury did what I expect a jury would do. But eviscerate her on the Internet for it? No. She took the advice of counsel. Bad judgment call perhaps, though the attorney defends the decision to move forward.

In other words, she went to a kid’s birthday party, got injured by accident, and then a lawyer advised her that she might be able to recover some of her medical costs (and probably lost wages) from the homeowner’s policy. So why not try it? I mean, other than because the internet outrage machine might decide to pick on you…

Someone at CNN interviewed her:

“This was meant to be a simple homeowners insurance case,” she said. “Connecticut law is such that I was advised by counsel that this is the way a suit is meant to be worded.”

Connell said that an individual, not an insurance company, had to be named as a defendant.

“I adore this child. I would never want to hurt him. He would never want to hurt me,” she told CNN.

The boy refers to Connell as his aunt, although she said he is the son of her cousin. The family remains close. Just a few weeks ago, Connell said, she took the boy out shopping for his Halloween costume.

“It’s amazing the power that the Internet has that something can go viral, completely out of context,” she said. “I’m certainly not trying to retire to some villa in the south of France. I’m simply trying to pay off my medical bills.”

And her lawyer thought this might work. Maybe he was just hoping to pressure the insurance company into kicking in a little more than the single dollar they had offered. Since she lost, maybe this wasn’t the best legal decision. Or maybe it was worth a try. If you suffered a debilitating injury in my house, I sure wouldn’t hold it against you if you tried to get some money out of my insurance company. That’s one of the reasons I have the policy.

Scott Greenfield has an interesting post about how much computerized data the government is allowed to seize when serving a warrant. Current practice is to seize it all and do whatever they want with it. Orin Kerr had proposed allowing the government to continue to seize all the data but putting restrictions on the use of that data so that only data responsive to the warrant can be used.

Scott’s position, if I understand it correctly, is that the warrant limits the scope of the seizure to the data specified in the warrant, and if the government can’t figure out how to limit their seizure to that data alone, then they just don’t get to seize anything. Too bad, so sad.

In my heart, I like Scott’s argument. He’s argued in that past that it’s a bad idea to make rules for the digital world by using analogies with the way we did things in the pre-digital world. That makes a lot of sense to me. We now store far more data in digital form than in the forms of data storage available when the Fourth Amendment was passed — my guess is we have more on our hard drives now than has ever been written down in all of human history — and if we were to make up rules from scratch to keep people secure in their persons, houses, papers, effects, and digitally stored data, against unreasonable searches and seizures, they would be considerably different from the rules we’ve evolved by analogy.

We’ve been witness to a similar situation when applying copyright law to digital data. Historically, copying and distributing creative works has been hard, so it made sense to have rules that govern copying and publication. And in the early years of the digital media revolution, copyright owners and publishers tried to build a virtual digital implementation of the system of rules we had been using for printed and recorded works. But as soon as consumers discovered they could copy digital works quickly, cheaply, and perfectly, they started to abandon the old copying and publication rules as too cumbersome, and we now seem to be evolving toward a system based around convenient access to source materials: If I hear a song on the radio and I want a copy, it’s much easier for me to download it from iTunes for $1.29 than it is to find someone willing to let me copy it for free. (Eventually, we will probably have laws that allow us to do this without 57-page click-to-accept legal agreements.)

Congress and the courts have been damned slow to adapt the search and seizure rules to the digital world in a reasonable way. Between things like the current rules for seizing computers and the third-party doctrine, the government has far too much easy access to our digital data, but I like to think that will eventually change as more people who grew up living in the digital world become judges and members of Congress. Someday they’ll get it, and we’ll get robust protection of digital data. Until then, Orin’s plan is about as good as it’s likely to get.

Still, I have at least three suggestions for improving Orin’s plan:

First and foremost (and least implausible),  the government should not be allowed to seize computers for longer than it takes to copy the data and return the computers to the owners. A business without its data is a business that cannot operate, and a warrant to seize data becomes an order to shut a business down. (Even having a personal computer seized is damned inconvenient and expensive.) This is a longstanding problem with seizing evidence, but given that digital copies are quick, cheap, and perfect, it’s an area where seizures in the digital world can and should be less troublesome than in the physical world.

Second, it would be nice for a change if the restrictions on the government came with real teeth. I’m not sure how that could work, however, since the initial seizure would still be legal. But without any punishment for breaking the rules, the government will still try to use everything it has, and the worst that could happen is that a judge will say no. And really, if the government discovers something juicy in the non-responsive seized data that they’re not allowed to use, is it realistic to assume they will simply ignore it? Without serious penalties, what’s to stop them from trying a little “parallel construction” to conceal the fact that they’re using the restricted data?

A similar problem arises in civil lawsuits when one party wants to examine business records from another party, such as all emails relevant to the disputed matter. The party responding to the discovery request doesn’t want to turn over all its email messages, full of sensitive business secrets, to the opposition, but the party requesting the email messages doesn’t trust the provider not to leave out messages that would hurt it in the lawsuit. One common solution to this problem is to have the responding party turn over all email messages to a neutral third party which is responsible for picking out the relevant messages and turning them over to the party requesting them.

So my third suggestion is that perhaps digital data seizures in criminal matters could be filtered through a neutral third party as well. I believe there’s some precedent for this in the way client files are protected when a lawyer is being investigated for a crime: The court appoints a special master to review the files for privileged material. Perhaps that protection could be extended more broadly to include filtering terabytes of non-responsive data down to just the material specified in the warrant. It would be a time-consuming and expensive process, but maybe that would discourage fishing expeditions, especially the fishing expeditions that turn into massive data dredging operations.