Friday, December 19, 2008
Tuesday, December 9, 2008
By analogy, in order for a person's confession to be admissible, the confession must meet certain standards for voluntariness. Although the breath/blood test has been deemed "not testimonial" by certain Texas courts, using the confession analogy can help us fashion an argument to protect the record in a DWI prosecution where the accused is a minor and provided a breath/blood sample after being read the DIC-24.
The test of admissibility should be that a breath/blood sample was provided freely, voluntarily, and without compulsion or inducement. See Sossamon v. State, 816 S.W.2d 340 (Tex. Crim. App. 1991)(confession context). In this case, the Court of Criminal Appeals determined whether or not a confession was voluntary due to a promise. First, the court determined a promise must be of some benefit to the accused. (certainly, the promise of a less severe penalty than the accused might otherwise receive could satisfy this element.) Second, the promise was made by a person in authority. (police officers would qualify as persons in authority.) Finally, the promise was of such a character to likely influence the accused to speak untruthfully. (here's where the confession analogy breaks down somewhat)
As a general rule, the Texas cases on confessions stand for the premise that where a promise of leniency is exchanged for a confession, the resulting statement by the accused is not voluntary and inadmissible. Just like the cases on confessions, the literal language of the DIC-24 may be interpreted as a promise of leniency of less severe penalties if the suspect cooperates and provides a breath or blood sample to the police.
Next time we'll examine the need for the accused to rely upon the promise in the DIC-24 before voluntariness becomes an issue. Call a qualified Bryan-College Station DWI attorney for answers.
Wednesday, November 26, 2008
The statutory warning tells the person arrested that a refusal to provide a sample may be admissible in a subsequent prosecution. The form also notifies the accused of the different lengths of suspension, depending on whether the person refuses or takes the test. There is a separate paragraph that's specifically directed to persons younger than 21 years of age. The warning says:
If you are younger than 21 years of age and have any detectable amount of alcohol in your system, your license, permit, or privilege to operate a motor vehicle will be suspended or denied for not less than 60 days. However, if you submit to the taking of a specimen and an analysis of the specimen shows that you have an alcohol concentration of less than 0.08, you may be subject to criminal penalties less severe than those provided for under Chapter 49, Penal Code.By its nature, this warning is coercive since it explicitly informs the person if they take a breath test and the result is less than 0.08, they may still be subject to less severe criminal penalties than if they completely refuse to take the test. However, under the implied consent law, consent to the taking of a breath or blood sample must be voluntary.
For consent to be voluntary a person's decision must not be the result of physical or psychological pressure brought to bear by police officials. A clear reading of the DIC-24, as it relates to suspects under 21 years old, is coercive because the warning provides for less severe penalties only if the accused person agrees to provide a sample. In other words, the warning results in a person providing a sample "involuntarily." Consequently, these breath and blood test results should be attacked by DWI defense lawyers by motions to suppress evidence based on this psychological coercion. Call a qualified Bryan DWI lawyer for answers.
Friday, November 21, 2008
Wednesday, November 19, 2008
Monday, November 10, 2008
First, a person commits an offense if the person has cause to believe a child's physical or mental health or welfare has been, or may be, adversely affected by abuse or neglect and knowingly fails to report it. This offense is a Class B misdemeanor offense, punishable by up to 180 days in county jail and a $2,000.00 fine. See sec. 261.109 Texas Family Code (TFC)
The next question is "who is a child" within the meaning of this reporting requirement? Section 101.003 TFC defines a child as: "a person under 18 years of age who is not and has not been married or who has not had the disabilities of minority removed for general purposes."
"Abuse" covers a comprehensive array of acts or omissions including mental or emotional injury, physical injury resulting in harm or the threat of harm to the child, failure to make reasonable efforts to prevent abuse by another person, and sexual conduct harmful to a child's mental, emotional, or physical welfare. See sec. 261.001 TFC.
Persons required to report child abuse are "professionals" and "persons who are traditionally responsible for a child's care" including parents, guardians, foster parents, school personnel, and personnel at public or private child-care facilities providing services for the child. A "professional" is an individual who is licensed or certified by the state or who is an employee of a facility licensed, certified, or operated by the state and who, in the normal course of official duties, has direct contact with children. The term includes teachers, nurses, doctors, day-care employees, employees of clinics or health care facilities providing reproductive services, juvenile probation officers, and juvenile detention or correctional officers.
If you're a professional or a person traditionally responsible for a child's care and have questions about your duty under law to report child abuse, contact a qualified Bryan|College Station criminal defense lawyer to discuss these important issues and get advice you need to avoid running afoul of legal duties to report child abuse.
Thursday, October 23, 2008
The defense can often put expert witnesses to good use, as well. For example, an expert witness familiar with the particular cultural issues involved in a child abandonment case might help the jury understand why conscientious parents from another culture might leave their children unattended for an extended period of time. An expert familiar with neuro-psychology might testify for the defense about abnormal brain development in a case where insanity is an issue. An expert might also testify for the defense about the suggestibility of child witnesses in a child abuse case. The list goes on and on.
However, before a witness is qualified to testify in any criminal trial their qualifications and testimony must meet threshold requirements under the Rules of Evidence. The Rules which apply to the testimony of experts are as follows:
Opinion Testimony by a Lay Witness: If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are rationally based on the perception of the witness and helpful to a clear understanding of the witness' testimony or the determination of a fact in issue in the case.
Testimony By Experts: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion.
Bases of Opinion Testimony by Experts: The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by, reviewed by, or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.
So, as you strategize with your criminal defense lawyer about defending charges against you, ask them how they might employ the use of experts to assist in your defense. Although experts will charge a fee for their services, the money is often well spent and a make-or-break investment in your future.
Monday, October 13, 2008
Tuesday, October 7, 2008
A person who is entitled to expunction of records may file a petition for expunction in a district court for the county in which the person was arrested or the county in which the offense was alleged to have occurred. The petition must be verified (sworn-to and notarized) and must include the following information: (1) the person's full name, (2) sex; (3) race; (4) date of birth, (5) driver's license number, (6) social security number, (7) the person's address at the time of the arrest, (8) the offense charged and the date the offense allegedly was committed, (9) the date of the arrest, (10) the name of the county where the person was arrested and municipality (if applicable), (11) the name of the agency that arrested the person, and (12) the case number and court of offense. The petition must also include a list of all the law enforcement agencies, jails, detention facilities, magistrates, courts, prosecutors, state and federal depositories of criminal records, and any other agency or other official who had any involvement in the case.
After the petition is filed and the clerk's fees are paid, the district court will set the petition for a hearing no sooner than thirty (30) days from the filing of the petition. Each official or agency named in the petition must be given reasonable notice of the hearing by certified mail, return receipt requested, or secure electronic mail, electronic transmission, or facsimile transmission.
If the district court finds that the person is entitled to expunction of any records and files that are the subject of the petition, the court must enter an order directing expunction. When the order of expunction order becomes final the release, maintenance, dissemination, or use of the expunged records and files is prohibited. The person arrested may now deny the occurrence of the arrest and the existence of the expunction order, unless the person is questioned under oath in a criminal proceeding about the arrest for which the records were expunged. Even then, the person may only state that the matter in question has been expunged.
Monday, September 29, 2008
(1) The person was tried for the felony and was acquitted;(2) The person was convicted of the felony and subsequently pardoned;(3) The person was convicted of the felony and subsequently acquitted by the Texas Court of Criminal Appeals; or(3) An indictment or information charging the person with the commission of a felony was not presented against the person, the statute of limitations period expired before the date on which the expunction was filed, the person was released, the charge did not resulted in a final conviction, the charge is no longer pending, there was no court ordered probation for any offense (other than a Class C misdemeanor), and the person has not been convicted of a felony in the five years preceding the date of the arrest.
Next week we'll look at the procedure for expunging criminal records and why the services of a qualified Bryan|College criminal defense lawyer are critical to success.(1) The indictment was dismissed or quashed: anda. The limitations period expired before the date on which the petition for expunction was filed; orb. The court finds that the indictment was dismissed or quashed because the presentment was made because of mistake, false information, or other similar reason indicating the absence of probable cause at the time of the dismissal to believe the person committed the offense or because it was void: and(2) The person was released, the charge did not resulted in a final conviction, the charge is no longer pending, there was no court ordered probation for any offense (other than a Class C misdemeanor), and the person has not been convicted of a felony in the five years preceding the date of the arrest.
Monday, September 22, 2008
(1) The person was tried for the offense and was acquitted;(2) The person was convicted and subsequently pardoned; or(3) An indictment or information charging the person with the commission of a felony had not been presented against the person, the statute of limitations period (usually 2 years) expired before the date on which the expunction was filed, the person had been released, the charge had not resulted in a final conviction, the charge was no longer pending, there was no court ordered probation for any offense (other than a Class C misdemeanor), and the person had not been convicted of a felony in the five years preceding the date of the arrest.
Monday, September 15, 2008
Monday, September 8, 2008
In 2007 the Texas legislature passed a law that provides police officers the discretion to cite and issue a summons for certain Class A and B misdemeanors, rather than arresting the person and booking them into the county jail. The new law is found in Article 14.06 of the Texas Code of Criminal Procedure. It applies to the possession of small amounts of marijuana (under 4 oz.) and other offenses such as criminal mischief under $500, graffiti, theft under $500, theft of service under $500, possession of contraband in a correctional facility, and driving while license invalid. Practically speaking, the person appears before a magistrate, just like when booked into jail, but must be released on a personal recognizance (PR) bond.
Importantly, the police are only given discretion to ticket persons who live in the county where the offense allegedly occurred. If you live outside the county the officer is obligated to take you to jail. The bottom line? Whether you receive a "ticket" for possessing marijuana, or are arrested, you still face the same misdemeanor charge . . . a Class A misdemeanor for possessing between 2 and 4 ounces; or a Class B misdemeanor for possessing less than 2 ounces.
Monday, September 1, 2008
Monday, August 25, 2008
A full pardon restores certain citizenship rights forfeited by law as the result of a criminal conviction, such as the right to serve on a jury, the right to hold public office, and the right to serve as Executor or Administrator of an estate. A full pardon removes barriers to some, but not all, types of employment and professional licensing. Licenses are granted at the discretion of the state licensing boards of each profession, and it's advisable to contact those boards directly to learn whether a pardon is necessary or sufficient to restore licensing eligibility. A person who is convicted and who receives a full pardon is entitled to an expunction of all arrest and court records relating to the conviction. Importantly, an arrest is not automatically expunged upon the grant of a full pardon.
Interestingly, in Texas voting rights are automatically restored when a person discharges a felony sentence. Effective September 1, 1997 the legislature restored voting rights to felons convicted in Texas once a person fully discharges the felony sentence, including any term of incarceration, parole, or supervision, or completes a period of probation ordered by any court. See Texas Election Code, sec. 11.002.
A person with a conditional pardon remains subject to conditions of release. A conditional pardon does not restore civil rights or rights of citizenship, and the governor can revoke the pardon if a person does not comply with the conditions of release. A pardon based on actual innocence exonerates the person of the crime and erases the conviction. To consider a pardon for innocence, the Board requires either evidence of actual innocence from at least two trial officials, or the findings of fact and conclusions of law from the district judge in a state habeas action indicating actual innocence.
Tuesday, August 19, 2008
Thursday, August 7, 2008
Wednesday, July 30, 2008
Wednesday, July 23, 2008
In a previous post, we learned the Intoxilyzer 5000 takes two readings from two separate breath samples provided only about two minutes apart. For the purposes of drawing an alcohol concentration curve (ACC) these two samples constitute only a single reading. An accurate ACC would require many more points of data than the Intoxilyzer 5000 provides. Consequently, the "single" reading provided by the machine does not provide enough information to determine whether a person is in the absorption phase or the elimination phase at the time of the breath test.
Consequently, if a person is tested while in the absorption phase their BAC at the time of the test will be higher than their BAC while driving. If tested while in the elimination phase their BAC at the time of the test could be lower than while driving, depending on whether they had reached their peak before or after the stop. Obviously, the greater the length of time between the driving and the test, the greater the potential variation between the two BACs.
Friday, July 11, 2008
Tuesday, July 8, 2008
Friday, July 4, 2008
Wednesday, July 2, 2008
The Intoxilyzer 5000 uses a method of quantitative analysis called infrared spectroscopy to determine how much ethanol is present in the breath sample of a DWI suspect. Simply put . . . different molecules absorb infrared light at specific wavelengths. (actually the chemical bonds holding the atoms together in the molecule absorb the light) But, if one knows the absorption wavelength of the molecule you're looking for, like ethanol, you can design a detector to identify how much radiant energy is absorbed in a sample. Then you can deduce by reliable scientific means (the Lambert-Beer Law) the number of absorbing molecules in the sample. But what if other molecules absorb energy at the same wavelengths? Won't, then, the Intoxilyzer mistake those molecules for ethanol? Will this result in an overestimation of ethanol in a person's breath?
The Intoxilyzer uses multiple wavelengths of infrared energy to look for ethanol. The Texas Breath Alcohol Testing Program Operator Manual admits that other substances absorb infrared energy at some of the same wavelengths as ethanol. Acetone, for instance. Acetone is a volatile organic chemical found in the body of those suffering from diabetes. Consequently, if an interfering chemical, like acetone, is in the breath of a DWI suspect the machine might register an overestimation. The manufacturer of the Intoxilyzer has built in a detector to look for acetone. Fair enough. But what about other interfering chemicals the Intoxilyzer does not look for?
Chemicals like methanol and toluene also absorb at wavelengths similar to ethanol. Methanol is found in solvents and varnishes. Toluene is found in paints, thinners, and glues. If a person comes into contact with these interfering chemicals (through occupational exposure, for example) and takes a breath test, they run the risk of higher false test results. That is, the Intoxilyzer 5000 mistakes the interfering chemicals for ethanol.
Interestingly, the Intoxilyzer can be fitted with a sample capture device used to preserve a sample for re-analysis at a later date. This sample preservation device could be used to check for quality control and interfering chemicals present. However, in Texas this device is not currently utilized on the Intoxilyzer 5000. Another interesting fact? Texas has no standard procedure approved for use by their technical supervisors to verify the interfering chemical detection feature of the Intoxilyzer 5000 works properly and conforms to the manufacturer's certification as advertised.
My next post on the Intoxilyzer 5000 will concern another source of potential error . . . mouth alcohol. Please stay tuned. And contact a Bryan|College Station DWI Defense Lawyer with questions about your charges. The best Bryan, Texas DWI attorney can really help!
Monday, June 30, 2008
Heat is the driving force behind Henry's Law and the inner workings of the Intoxilyzer 5000. Heat causes the ethanol in a person's blood to evaporate into their breath inside the lungs. The higher the temperature, the more ethanol goes into the breath.
The Intoxilyzer 5000 is certified to give accurate results for water solutions (the reference sample) of ethanol carefully maintained at a temperature different from the human body. However, the machine is never checked for accuracy using samples provided by living human beings at a core body temperature of 98.6 degrees Fahrenheit.
The Intoxilyzer programing assumes the breath temperature from a DWI suspect is 93.2 F. But not all investigators agree that expired human breath is at this temperature. This is critical since the higher the core body temperature, and thus higher breath temperature, the more the Intoxilyzer will overestimate the breath alcohol concentration of the person providing a sample. Amazingly, the Intoxilyzer as no way to measure a person's breath temperature at the time a sample is collected.
Studies show for every 1.8 degree Fahrenheit (1 degree C) increase in breath temperature there is a 6.8% overestimation of the measured breath alcohol, compared to that of a simultaneous blood alcohol sample. This means an Intoxilyzer 5000, measuring a person blowing into the machine with a breath temperature of 98.6 degrees F, is calculating an ethanol concentration about 20% too high. Consequently, many persons providing breath samples are being unjustly charged with DWI and are being wrongly convicted.
Next time we'll look at the Intoxilyzer 5000 and organic chemical interference. Call the best Bryan-College Station attorney to help you.
Friday, June 27, 2008
The reference sample device on the Intoxilyzer is designed to deliver a sample of vapor containing a known or predicted amount of ethyl alcohol (ethanol). The reference sample device is supposedly used to verify the accuracy and calibration of the machine. A reference analysis is conducted as a part of each subject test to ensure the machine is properly calibrated.
The theory of operation of the reference sample device is based upon Henry's Law. In a closed system, like the diagram above, the amount of ethanol in the airspace above a liquid (lavender dots) is proportional to the amount of ethanol in the liquid (blue dots). Henry's law applies to closed systems at a given temperature and pressure. The Intoxilyzer 5000 does a good job at accurately predicting the amount of ethanol in the reference sample.
However, when the Intoxilyzer 5000 is used to predict the amount of ethanol in human breath the situation changes dramatically. If you assume the liquid in the closed system illustrated here is human blood, and the airspace illustrated is the air in the lungs, even a lay person can quickly recognize potential problems.
First, the human lung is not a closed system. Pressure in the lungs is constantly changing as we inhale and exhale. As the pressure changes so does the amount of ethanol in the airspace above the blood in our lungs. Furthermore, the temperature of the system is critical. If the solution temperature is low, the results will be low. If the solution temperature is high, the results will be high.
The problem with the Intoxilyzer 5000? It assumes a constant pressure and it assumes a predicted temperature within the system. If the pressure is changing then Henry's Law can only be used to approximate the concentration of ethanol in human breath. Moreover, the Intoxilyzer does not measure the temperature of the suspect's breath sample. Without knowing the precise temperature the Intoxilyzer can only make assumptions that might not bear out in a particular case. If the temperature of the person's breath is different than what the machine assumes it is, then the results obtained will be erroneous. An experienced Bryan-College Station DUI defense lawyer can explain Henry's Law.
More about temperature problems in a later post.
Wednesday, June 25, 2008
1. The Intoxilyzer 5000 is designed to analyze a sample of a person's breath based on Henry's law. When a volatile chemical (ethanol) is dissolved in a liquid (blood) and brought into contact with a CLOSED air space, an equilibrium is formed and there exists a FIXED RATIO between the concentration of ethanol in the air space and the concentration in the liquid. (at a given temperature and pressure) At equilibrium one can measure the concentration of ethanol in the gas phase and predict the concentration of ethanol in the liquid. The problem with the human lungs? They are not a closed system and Henry's law does not exactly apply.
2. The Intoxilyzer is designed to produce a breath alcohol result exactly corresponding to a simultaneous blood alcohol sample. The problem is the assumption that the partitioning of alcohol from the blood into the breath is 2100:1. Not all persons partition alcohol from their blood based upon this ratio. Studies show partition ratios as low as 834:1. The Intoxilyzer 5000 will overestimate the alcohol concentration of someone blowing with a partition ratio less than 2100:1.
3. The Intoxilyzer 5000 assumes the test subject is in the elimination phase, rather than the absorption phase. It is rarely known whether the person is still absorbing alcohol from their last drink when the breath test is administered.
4. The Intoxilyzer assumes the temperature of the person's exhaled breath is 34 degrees Centigrade. Core body temperature for humans is 37 degrees Centigrade. For every breath degree over 34, the Intoxilyzer 5000 overestimates the breath alcohol content by about 6.8%. Moreover, the machine is not designed to measure the temperature of the suspect's breath.
5. Mouth alcohol can lead to erroneous breath sample results. The Intoxilyzer 5000 claims to handle the mouth alcohol problem with a computer program called the "slope detector." There have been no scientific, peer reviewed studies showing the slope detector works as advertised.
6. As Mark stated in his blog post, the margin of error for the Intoxilyzer 5000 is +/- 0.010 for the reference sample, and +/- 0.020 for the suspect's breath sample.
7. Beyond this, the sample chamber can have up to .019 gms alcohol/210 liters breath alcohol inside when the machine is reading a 0.00.
There are other problems with the Intoxilyzer 5000. I hope Mark is using these blatant problems to his client's advantage this week during trial. A Bryan DUI-DWI defense attorney can also help you understand the 5000.
Tuesday, June 10, 2008
Now a Texas judge has been sued for giving parents the option of paddling their children in open court. The Brownsville Herald reported that judge Gustavo Garza was giving parents the option of spanking their children for truant behavior, or have the child face criminal charge and fines. The Associated Press reported a preliminary injunction was sought to stop Garza's use of paddles in his courtroom. Check out the video from News Channel 5 (KRGV) for a picture of the offending lumber.
Certainly a novel approach for rehabilitating truant youngsters in South Texas. What do you think? A good paddling vs. a juvenile adjudication and fines. To harsh? Over the top? Maybe a courageously good idea? I'd love to hear what you think.
Monday, June 9, 2008
The ABA Journal posted a piece (no pun intended) commenting on Altholtz's intriguing idea for raising money for a good cause. A sharp (but post-feminist) comment by attorney Ellen Barshevsky set the tone for some great discussion:
Why do WE always have to be objectivized? You know these men only want to see pretty women in skimpy bathing suits , and I’ll bet most of the men will be dressed to the nine’s in their 6 piece suits. Also, why is it that these people are focusing on physical beauty, when it is our MINDS that differentiate us from other bimbos. I went to law school to be a professional, not to show off my body to anyone. I would NOT buy this calendar product, even though it purports to be gender neutral and for a good cause. Face it, without pretty WOMEN, no one will buy it to see the guys. Women should NOT be viewed as MEAT.So what do you think? Good fun or another blatant exploitation of the beautiful female (and male?) form?
Last April the Austin American-Statesman reported here about the civil contempt hearing in which Reposa was alleged to have made a gesture simulating masturbation while in open court. He was sentenced to 90 days in the county jail, as a result. The ABA Journal reported today that Reposa was appealing his sentence to the Texas Court of Criminal Appeals.
Ninety days in county seems fair to me for something as stupid as this. Heck, even Reposa was reported to have believed the sentence was fair while he was escorted out of the courtroom in handcuffs at the conclusion of the contempt hearing. This guy ought to take his medicine and stop wasting the court's time.
Why so hard on my fellow defense lawyer this early Monday morning? Guys like Reposa give hardworking, ethical, and committed defense lawyers a bad name. There's a price to pay for utter stupidity and what's coming around for Reposa seems earned to me.
Thursday, May 22, 2008
Update: Text of Court of Appeals Opinion here.
Wednesday, May 21, 2008
The Eagle reported on the circumstances of the citation:
Andreski's daughter, whose name [was] redacted from the 392-page file obtained by The Eagle through an open records request, was cited Oct. 9 for disobeying a police officer's traffic direction.The rookie officer's supervisor (Lt. Capps) reviewed the ticket:
Officer Mica Lunt, who was in training at the time, was directing traffic at a school crossing at Rock Prairie Road and Rio Grande Boulevard. He said he motioned for traffic to stop at a crosswalk, but the Andreski teen "did not attempt to stop until almost at the intersection and finally slammed on [the] brakes and slid through the intersection, eventually coming to a stop," according to reports.
The citation was supported by Officer Jamie Urbina, who was Lunt's field training officer and witnessed the incident.
Lt. Capps agreed to check into the ticket and make sure it met the designation "disobeying a police officer." Capps met Oct. 10 with Officer Lunt, who confirmed to him that Andreski's daughter had been speeding in a school zone, didn't stop at the crosswalk and "obviously committed some kind of traffic violation," Capps said during the investigation.
"Sounded to me that she needed a citation, so we kind of left it at that," Capps told the internal affairs investigator.
The ticket was ultimately dismissed by the City prosecutor and no further citation was issued.
During the internal affairs investigation Andreski said he didn't want to wait to let the ticket take its natural course through the municipal court system because he thought the charge was incorrect:
Andreski heard about the ticket from his daughter and said he was concerned that "disobeying a police officer's traffic direction" was an improper charge because it must show that a person willfully disregarded the instruction. Andreski said his daughter didn't see the officer.Well, join the club Lieutenant!
"No one tried to cut a deal or do anything underhanded or sneaky," Andreski said. "There were no orders given to dismiss the ticket. My request was that we look into it and see if the elements of the offense were met."When the Police Department has received similar complaints, the PD always attempts to correct any mistakes made by their officers," Andreski said. "I expected to be treated the same as any other citizen. I could have taken it to court, but the outcome would be unknown." [emphasis added]
Andreski's handling of this situation reeked of favoritism and a double standard. What made him think his judgment of the facts was superior to that of the two officers working the intersection while his daughter barreled through? If the original ticket did not suit the evidence, why wasn't she cited for another traffic violation after the original citation was dismissed? I also think the College Station City Attorney as questions to answer.
A big concern I had was Andreski's (apparent) arrogance following the internal affairs investigation. His failure to recognize his mis-application of power was appalling. Joe Blow off the street must take his ticket to court and face the "unknown" outcome which Andreski feared. What's the problem with requiring his daughter to do the same? Using his special influence to avoid risks common to us all deserved an internal affairs investigation.
I hope the CSPD learned a valuable lesson . . . using the "badge" is much different from wearing it. We expect our police officers to exercise the highest degree of integrity and professionalism. We expect our officers to back each other. But we also expect police officers, especially those wielding great power, to exercise the utmost care in peddling their special influence.
Tuesday, May 13, 2008
Last month, writing for the Washington Post, Penn Associate Professor Marie Gottschalk hypothesized our country was degrading into two separate societies: One in prison and one not. She noted:
The Pew Center on the States released a study in February showing that for the first time in this country's history, more than one in every 100 adults is in jail or prison. According to the Justice Department, 7 million people -- or one in every 32 adults -- are either incarcerated, on parole or probation or under some other form of state or local supervision.Last week in Wichita, Kansas the governor signed a bill prescribing tougher penalties for theft and sex crime offenders. Kansas state senators called the legislation a tough new stance on crime. Criminal defense lawyers remarked the state needed to focus on solutions to crime other than additional lengthy imprisonment.
These figures understate the disproportionate impact that this bold and unprecedented social experiment has had on certain groups in U.S. society. Today one in nine young black men is behind bars. African Americans now comprise more than half of all prisoners, up from a third three decades ago.
At home, local prosecutors are less apt to resolve cases without jail time or a conviction. I recently represented a high school student caught by police carrying a cup of beer. She was under aged, scared, and told the police she was her sister and 21 years of age. Within minutes the officer deduced my client was lying. When confronted she owned-up to her lie. No more than two minutes elapsed from the lie to the truth. However, the officer arrested this 17 year old for making a false identification to a police officer. It was like pulling teeth for the prosecutor to consider reducing the case to a ticket level offense. They were dead-set on getting a conviction or putting this impressionable young girl on probation for a two-minute indiscretion. Why so hard I asked? "We see hundreds of these cases and we treat everybody the same."
I concluded the social experiment gone awry which Dr. Gottschalk debated was not the mass incarceration of our citizens. Rather mass incarceration was an unintended consequence of another social experiment gone awry - eliminating corporal punishment in homes and schools over the past 30 years. In other words, I don't think my son will be horse-playing anymore in PE class, unless, of course, he enjoys the bear-crawls.
How many of the 7 million people either incarcerated, on parole, or probation would not be consuming governmental resources had parents been more aggressive in the discipline of their children? How many of the 7 million would be free of the system had schools been free to use reasonable corporal punishment to adapt the behavior of misbehaving kids? I certainly understand the potential for abuse when using pain and humiliation to redirect behavior. But I also see how incarceration rates have increased in relationship to the elimination of corporal punishment in our schools.
I know. I know. It's not politically correct to spank children anymore. But maybe corporal punishment is part of the solution Kansas defense lawyers were talking about. If my kid's PE teacher wants to make punishment a memorable experience - something feared and something to avoid in the future - something that redirects behavior and makes my son act right, I don't have a problem with it.
So maybe we need to begin a new social experiment. Bear crawls and wall sits. It worked for my kid. Why won't it work for your's or any of the 7 million in the system already?