Austin Criminal Law Journal : Austin Criminal Defense Lawyer & Attorney : Dax Garvin : Texas, Travis County, Georgetown, Round Rock, Cedar Park

Officer.com reports on an the revelation to the USAF about one of its own supervisor's sexual orientation, and the excuse given by law enforcement was as follows regarding the NON-SUSPECT, innocent party:

The Rapid City Police Department says Newsome, an aircraft armament system craftsman who spent nine years in the Air Force, was not cooperative when they showed up at her home in November with an arrest warrant for her partner, who was wanted on theft charges in Fairbanks, Alaska.

Newsome was at work at the base at the time and refused to immediately come home and assist the officers in finding her partner, whom she married in Iowa, where gay marriage is legal, in October.

Police officers, who said they spotted the marriage license on the kitchen table through a window of Newsome's home, alerted the base, Police Chief Steve Allender said in a statement sent to the AP.

When I read this, I was immediately angered by the officers' actions.  I completely support their action in serving a warrant, peering through a window (if you don't want this done close your blinds), etc... I have not issue with that.  However, the mere suggestion that they expected the non-suspect to leave work and come home is totally ridiculous.  That request is beyond any level of common-sense or daily comprehension....

And the Chief's response was even more offensive and goes to show the lack of sensitivity or professionalism used by his officers:

It was a part of the case, part of the report, and the Air Force was privileged to the information." "It was a part of the case, part of the report, and the Air Force was privileged to the information.

The person named on the license was not the suspect and was not the named party on the warrant.  Thus, she had absolutely no reason to share her business with the Air Force.  They were not privileged to obtain that information. 

At least the Sergeant was honorably discharged, but regardless, a career was ended when there was no reason to do that.  I could rant for many pages on this point but have elected not to do so in order to keep my opinion focused and on point. 

Rather, I just want to summarize that every person has a reasonable expectation of privacy and this is just another example of why we need to protect it as much as we can.  While there could be reason to fear retaliation from cops who do not receive the level of cooperation they think they are entitled to, I suggest you always exercise your right to remain silent, and if you believe you must answer a question or provide them with something, do as little as possible, and always be polite... in the end, I think even retalitation for lack of cooperation will fall to the polite truth...this sergeant will recover from a job lost in a thankless organization, and she'll be stronger and better off in the long run.

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Most people reading this blog know the difference between a lineup and a show-up as conducted by law enforcement, but just in case you do not, here's my definition of each:

1. police lineup - a procedure where officers present (usually 6) people of similar size, race, hair color, eye color, etc. to a witness and ask the witness to identify the person they believe is the suspect.  This is sometimes done via a presentation of photographs, in which case the photos should all be used from the same source (booking photos of the same age, driver's license pictures, etc.)
2. police show-up - This procedure involves the suspects detaining a suspect and presenting him/her to the witness and asking, "That's the person who did [insert action]"....

The Usual Suspects movie poster.

For anyone who does not see the primary difference between these two methods of identification, consider this:

Show-up procedures are too suggestive, and at least one Texas legislator agrees and wants to change the law to ban the practice in Texas.

Why are they too suggestive?

Well, to begin, there is only one person that the witness is looking at and that person is usually sitting in the back of a patrol car, handcuffed, and surrounded by officers.  The question isn't typically open-ended but very suggestive--"that's him" or something of the sort is used by the officers.  And, anyone who is in this position does not look like they normally would... they are terrified, I'm assuming, and may even look physically shaken, not necessarily by the police but just the stress of the ordeal.

So, what can be done without "handcuffing the police" and thus preventing them from doing their jobs, which we all understand their purpose....

Well, Texas Senator Rodney Ellis has proposed that Texas adopt the sequential blind lineup, which was mentioned in the article I linked to above.  But, here's an excerpt from that article:

The proposed change, known as a sequential blind lineup, requires investigators to present lineup photos one-by-one rather than simultaneously. The investigator who presents the lineup would not be involved in the case and would not know who the true suspect was.

Police officials in Texas have opposed Mr. Ellis' efforts to make sequential blind procedure mandatory, although they have expressed a willingness to require that police departments have written policies regarding eyewitness identifications. Most departments do not currently have written policies.

I do not have any statistics supporting this move, but my experience in law enforcement and using photographic lineups allows me to understand exactly why people would complain about the process.  While I never suggested to a witness who the suspect was, I saw how the system was riddled with opportunities to suggest who the witness select:

1. leaving a paperclip on or near the one to be identified;
2. holding the document in such a way that one or more people are covered;
3. holding the document in a manner where you are "pointing" at the person you believe committed the crime....

My process was to explain to a witness what was going to happen, hand him or her the manilla folder, and ask, "Is the person you witnessed doing [insert conduct] shown in that folder?" Then, I would hand them the folder and allow them to look.  If they asked questions, I explained that I could not answer them and that they needed to be "certain" of their identification.

Much more information may be obtained about the sequential blind lineup procedure at the Innocence Project website and no, it is not simply a site of "liberals" spouting off about how the current system is broken.  It appears to fairly weigh all the possibilities and pros / cons of the system and those currently in practice.

So for now, Texas continues to take is "maverick" approach to law enforcement and utilize the photographic line-up procedure.  But, here's to hoping that Senator Ellis is successful in his charge to change the system....

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Law enforcement, when done correctly, is critical, but we must all understand and use our rights that are provided by the Constitution.  Bad and over-zealous law enforcement needs to be eliminated as much as crime itself--the ends do not justify the means.

Here is my first attempt to inform people of their rights and let them know what they should and should not do when they encounter police officers.  As a former central Texas cop, I am particularly partial to this subject and it always amazed me how people would interact with me and other officers on a scene.

Try to remain calm and control your words, attitude, and body language/actions.  Do not argue with the cop, even if you truly believe you are justified and the officer is wrong.  I understand this is difficult and that you may be trembling with nervousness, but it is critical for you to gather your emotions here and control yourself.

Remember:

1)      Everything you say or do will be used against you if possible;

2)      Never run from the officer;

3)      Never touch the officer;

4)      Never resist—you will only get hurt and face more charges;

5)      Do not complain or tell the officer s(he) is wrong;

6)      Remain silent – make no statements;

7)      Refuse all searches, do not give in to their pressure to allow a search.  Nothing the officer says should change your mind... refuse searches;

8)      Ask for a lawyer if you are arrested and if any questions are being asked of you;

9)      Try to take note of any witnesses, cameras, or “extra” officers;

10)  Do not interfere or obstruct an officer’s action—that is a crime and you will go to jail for it;

11)  If the officer says they have a warrant, ask to see it---if they refuse to show you, continue refusing to allow the search;

12)   Never bad-mouth a police officer (even though it can be so hard not to—that’s your lawyer’s job);

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In Eugene, Oregon, an ordinance was just passed and went into effect on September 13, 2008, that allows the prosecution of those convicted of a criminal offense in a 20-block area of downtown to be banned from re-entering the area for 90 days to 1 year.  Read the Ordinance online.

While this may seem like a good idea to some, it seems to me that once a person is convicted of an offense and that penalty is paid, life should continue for that person.  They should not be banned from a part of the city.

This really reminds me of The Scarlet Letter, which I'm assuming most readers know about that work of literature which commented on the branding of women convicted of "adultery". When I read that book I found myself shaking my head at that scenario, but at times, we really are not that far afield from a similar society.

An excerpt from the article reads:

Eugene's downtown exclusion zone bans people convicted of crimes downtown from downtown for a year. People charged with a crime can be banned from downtown for 90 days.

"It requires careful planning to make sure we remain within the law, that we apply the ordinance the way it was intended and that we don't violate anybody's constitutional rights," said Captain Pete Kerns with the Eugene Police Department.

Police will start enforcing the downtown exclusion zone in just a few weeks, but it will be some time before police start issuing violations for all the crimes listed in the ordinance.

It's nice to know that Captain Kerns is at least giving voice to the concept of "constitutional rights" but the implementation of this should be interesting.  Afterall, the Constitution provides for Freedom of Assembly--unless the argument will be that this falls under one of the "time/place/manner exclusions".

Reading between the lines of the ordinance, it appears to me that this is a way of pushing transients and other homeless people out of downtown without directly saying as much.

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To be fair, this statement was not made by a sworn officer but by a civilian employee of the Las Vegas Police Department... the only distinction there is that the person is not a "sworn officer".  While we are all entitled to our opinions, just like the one I am writing here, I believe this is an all too common practice in law enforcement and prosecution officers across the US.

Unless I slept through all of my criminal law classes in law school, and I know that I did not, I know there is a presumption of innocence in the United States, which means that the State must prove that someone committed a crime beyond a reasonable doubt.

So, I'm going to spare everyone the dissertation on presumptions and burdens of proof, at least in this entry, but I really want to focus on this attitude that is rampant among law enforcement officers.

I believe that I am qualified to comment on this as I am a former cop.  I was present when similar comments were made, granted, they were not on the same scale or with the same amount of newsworthiness due to the investigation not focusing on a "celebrity", but they were still demonstrative of an erroding of that "presumption of innocence".

So, why do cops, prosecutors, and those who work with/for them take such pride in "bringing someone down"  or taking delight in someone else's misery or hardship... I think in German that is called schadenfreude. 

It is one thing to have goals in life to do well in your job.  It is also another matter to objectively comment that the evidence present may be sufficient or overwhelmingly supportive of a prosecution of an criminal offense.  But, it is quite another to wallow and snear and seemingly delight in someone else's misfortune, as was done by the statement, "This is great. ... California can't get him. ... Now we'll be able to."

Without knowing the facts of OJ's new case, I'm not taking a position on it or for/against him, but I am taking a position that we as a society need to hold those in power accountable for their positions and their words and actions.  Constitutionally, we are all protected and are innocent until proven guilty, I for one do not want to give up that right.

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