Chad Perrin: SOB

29 August 2006

restrain power by granting more of it

Filed under: Liberty — apotheon @ 02:53

unsurprising statement, coming from me: The law enforcement and criminal court system in this country is screwed up.

surprising statement, coming from me: We can fix some significant problems with this country’s law enforcement and criminal court system by giving the police more power to convict the guilty.

No, really.

Let’s take a case study. I stumbled across the writings of Scott Broadbent, who says the USA is a police state, or at least rapidly becoming one. He, in turn, apparently found the information on which that entry is based at Boing Boing, which relayed information about a man who was arrested for taking a pic of a cop arresting someone else. Boing Boing credits the story to Thomas Hawk, but sources NBC10.com for the story about a Cell Phone Picture Called Obstruction Of Justice. Here’s the short version:

Cruz said that when he heard a commotion, he walked out of his back door with his cell phone to see what was happening. He said that when he saw the street lined with police cars, he decided to take a picture of the scene.

“I opened (the phone) and took a shot,” Cruz said.

Moments later, Cruz said he got the shock of his life when an officer came to his back yard gate.

“He opened the gate and took me by my right hand,” Cruz said.

Cruz said the officer threw him onto a police car, cuffed him and took him to jail.

A neighbor said she witnessed the incident and could not believe what she saw.

“He opened up the gate and Neffy was coming down and he went up to Neffy, pulled him down, had Neffy on the car and was telling him, ‘You should have just went in the house and minded your own business instead of trying to take pictures off your picture phone,'” said Gerrell Martin.

Let’s assume for the moment that Cruz, his family, and his neighbor are all telling the truth about what happened. My point in bringing it up is not that it did happen, but that it easily could have happened exactly as described, and none of us is likely to deny that any time soon. That’s a scary thought.

Assuming it’s true, and provably so down to the last detail, here’s what’s likely to happen:

All charges against Cruz will be dropped. The police officers involved will be told they shouldn’t do that. Life goes on, same as before, only now we’re just a little more afraid of the police.

How do we fix this? I, for one, am absolutely convinced it needs to be fixed. Let’s just go with that opinion for now.

The answer is, believe it or not, to grant the police and courts more power to convict the guilty with gathered evidence, regardless of how the evidence was gathered — assuming it can be shown to be legitimate evidence, rather than manufactured evidence, of course. The answer is to stop “punishing” the police and courts by letting criminals go because someone didn’t have “probable cause” when he entered someone else’s home and gathering the perfectly valid evidence improperly.

That doesn’t mean we should just let the police go around breaking into random homes and looking for evidence of crimes, of course. No, my solution would probably actually reduce the incidence of malfeasance on the part of the police. See, as far as I’m concerned, whether or not a police officer was acting properly has zero effect on whether or not the evidence is good. On the other hand, a police officer that violates someone’s rights is, in my estimation, a criminal. He should be treated like one. If someone breaks into your home without a warrant or “probable cause”, he should be put on trial for breaking and entering, whether he carries a badge or not. If, while there, he finds the severed thumbs of your last twelve murder victims, those thumbs should not be excluded from the case against you, though.

The criminals go down for their crimes — both of them. With the system we have now, both criminals get off free. That’s just not acceptable.

10 Comments

  1. Hear, hear. Punish the guilty, not the victims.

    Comment by SterlingCamden — 29 August 2006 @ 03:18

  2. What you are essentially arguing here is that the ends justify the means, even if the means are punishable by law. And you don’t see a problem with this?

    Comment by Brian Martinez — 29 August 2006 @ 03:20

  3. I’m not saying anything of the sort, Brian. What I’m saying is that neither do the ends justify the means, nor do the means taint the ends.

    The “ends justify the means” argument is the one to which we currently give our devotion: toward the end of stopping the police from runnign roughshod over our rights, we will pursue means up to and including letting a proven violator of rights go free.

    Are you telling me you don’t see a problem with that?

    edit: Tell me how what I propose could even be as bad as the policy under which we currently suffer, let alone worse, and perhaps I’ll reconsider my position.

    Comment by apotheon — 29 August 2006 @ 04:10

  4. toward the end of stopping the police from runnign roughshod over our rights, we will pursue means up to and including letting a proven violator of rights go free.

    Precisely, because that’s the only way the government can protect everyone’s rights (so far as it protects rights at all). I also have a problem with your term “proven violator”. Nothing is proven until the accused is convicted by a jury of his peers in court. Merely acquiring evidence does not establish guilt. Your proposal would turn the entire principle of innocence before guilt on its ear. That I have a real problem with.

    The current system may suck in your view because of the “technicalities” by which the obviously guilty may go free, but I would rather see them walk than have an innocent man’s rights overrun by thugs with no constitutional constraints. I guess your outlook depends on your answer to this question: which is worse, a innocent man convicted of a crime he didn’t commit, or a man acquitted of a crime he obviously did commit? I’d say it’s the former, and I’m quite certain the Founding Fathers said the same thing, based on the justice system they devised.

    Comment by Brian Martinez — 29 August 2006 @ 05:32

  5. Letting a proven violator go violate rights again is not a means of protecting anyone’s rights. The system currently in place sometimes lets two proven violators go free — and always at least one (the cop who is willing to violate rights in pursuit of a conviction on the off-chance he won’t get caught).

    . . . and yes, I’m talking about proven violators. It doesn’t take a conviction by jury to be proven to have done something. It takes a conviction to get punished for it. Proof is independent of a system of jurisprudence: the courts simply determine what proof, and what evidence where proof is lacking, is admissible, and what effect it has on conviction. A video recording that is demonstrated to be free of tampering and shows the accused in the act of putting a bullet through the victim’s head is proof. Failure to convict him due to a technicality does not change that. He’s a proven violator.

    Your proposal would turn the entire principle of innocence before guilt on its ear.

    Nonsense. There’s no such thing as being innocent until proven guilty. You are either innocent or guilty independent of what the courts have to say about it. The legal principle that should be preserved is a presumption of innocence. One is presumed innocent until proven guilty, not (necessarily) actually innocent.

    The current system may suck in your view because of the “technicalities” by which the obviously guilty may go free, but I would rather see them walk than have an innocent man’s rights overrun by thugs with no constitutional constraints.

    I would rather see every guilty man in the world go free than one innocent punished wrongly. I am probably more adamant about this than you are. I’m absolutely dedicated to the notion of preventing law enforcement officers from getting away with wanton violation of rights. That’s why such actions should be treated as a crime rather than a mere procedural misstep.

    I’d like to know where you get the wild-assed notion that convicting people based on irrefutable evidence of their guilt in any way convicts the innocent.

    Comment by apotheon — 29 August 2006 @ 07:58

  6. Letting a proven violator go violate rights again is not a means of protecting anyone’s rights.

    Correct me if I’m wrong, but you seem to think that the mere act of breaking into one’s home to gather evidence is the only violation being committed here (aside from the crime itself). Not according to the 4th Amendment, it isn’t. It safeguards people from unreasonable search and seizures, whether such search is the result of a warrantless wiretapping or a thug cop planting evidence or whatever.

    What you’re asking is for the courts to ignore that safeguard if the evidence seized in such a manner points to the defendant’s guilt. In order for that to work, you would have to eliminate the presumption of innocence, which you state later is something that should be preserved. You can’t simultaneously support this principle and then ask the courts to abandon it in favor of pursuing justice. If the Constitutional protections we do have are to be worth anything, they must be applied consistently with respect to the rights of both the victims and the accused.

    It doesn’t take a conviction by jury to be proven to have done something. It takes a conviction to get punished for it.

    In a country based on rule of law, that’s not how it works. Judges determine the facts of the case by ruling on evidence. Juries determine if the facts establish guilt. And in anything short of capital cases, it’s a judge who determines punishment. There is no other system in place to prove someone’s guilt, unless you’d like to try cases on prime time TV and let the audience vote on it instead.

    Cops need to follow the rules like everyone else. Convicting someone based on police misconduct means sanctioning an illegal search or disregarding due process and just letting him fry because everyone knows he did it. I find this to be a legally and morally bankrupt notion.

    Comment by Brian Martinez — 30 August 2006 @ 10:26

  7. Correct me if I’m wrong, but you seem to think that the mere act of breaking into one’s home to gather evidence is the only violation being committed here (aside from the crime itself). Not according to the 4th Amendment, it isn’t. It safeguards people from unreasonable search and seizures, whether such search is the result of a warrantless wiretapping or a thug cop planting evidence or whatever.

    Uh, what? I’d say breaking and entering, including going through the subject’s stuff and taking some of it, qualifies as unreasonable search and seizure.

    What you’re asking is for the courts to ignore that safeguard if the evidence seized in such a manner points to the defendant’s guilt.

    No, it’s not. What I’m asking for is the court to jail the bastard that did it. If he was ordered to do it, jail the guy that told him to as an accessory and/or for conspiracy. That’s far from ignoring it. Ignoring it would be doing something like failing to address the cop’s violation of rights — you know, like they do right now.

    Judges determine the facts of the case by ruling on evidence.

    Facts are not determined by perception. They exist whether anyone rules on them, notices them, or does an interpretive dance about them. The purpose of police work and trial is (should be) to discover and verify facts. None of that has anything to do with deciding what is or is not a fact.

    try cases on prime time TV and let the audience vote on it instead.

    I’m at a loss. What the hell does that have to do with anything I’ve said?

    Cops need to follow the rules like everyone else.

    What part of “Follow the rules or you get to share a cell with the other criminals!” translates to “You don’t have to follow rules!”?

    Convicting someone based on police misconduct means sanctioning an illegal search or disregarding due process and just letting him fry because everyone knows he did it.

    WTF?

    Nobody should be convicted based on police misconduct or what “everyone knows”. People should only be convicted if the evidence both shows them to be guilty and is verifiably valid. You seem to have some bizarre notion that I’m saying cops should be allowed to manufacture evidence to convict people because they have hunches these suspects are guilty, which you should know by now is sorta the complete opposite of what I’m saying.

    Comment by apotheon — 30 August 2006 @ 12:59

  8. Right now, if an officer acquires evidence illegally, the only punishment (besides maybe an administrative slap on the wrist) is meted out to the prosecution’s case. The prosecution and the victim are punished for the actions of a rogue officer. I agree with apotheon — if an officer violates someone’s rights, they should be punished as criminals. That would be a better deterrent than messing up the prosecution’s case.

    Comment by SterlingCamden — 30 August 2006 @ 01:32

  9. I’d say breaking and entering, including going through the subject’s stuff and taking some of it, qualifies as unreasonable search and seizure.

    It’s actually two different crimes, if you think about it: the property crime of B&E, and the violation of the person’s rights. Violating one’s civil rights is a prosecutable crime at the Federal level. Your proposal would punish the bad cop for the first crime (which I totally agree with; I hope you don’t think I don’t) but by allowing whatever evidence the cops finds to be used in prosecution, the second crime would go unanswered even though it’s a violation of the Constitution. I don’t think winning a conviction based on violating someone’s civil rights makes a recipe for justice.

    You may think the victim is somehow being punished again when their perp goes free, but really it’s the government which loses by screwing up the case. It fails in its duty to protect its citizens’ rights. If it became more clear as to why and how the government lost, say, a murder case due to procedural errors, then people just might start demanding a little more accountability from the government. I’m not holding my breath of course, but it’s possible.

    Facts are not determined by perception. They exist whether anyone rules on them, notices them, or does an interpretive dance about them. The purpose of police work and trial is (should be) to discover and verify facts.

    Yes, yes, I get it. But those facts must still be gathered and presented in court, and they must be gathered in accordance with procedural rules designed to protect the rights of the accused, to ensure due process and a fair trial. I honestly can’t believe you’d think this system would work better without those rules in place.

    You seem to have some bizarre notion that I’m saying cops should be allowed to manufacture evidence to convict people because they have hunches these suspects are guilty, which you should know by now is sorta the complete opposite of what I’m saying.

    That’s not what I’ve been saying. I’ve been saying that evidence which has been acquired as a result of police misconduct should not be admitted into trial. “I beat the guy for 2 hours, and yeah, I may go to prison, but he finally confessed to the crime and told me where the murder weapon is!” This scenario is OK with you?

    I have no problem with punishing cops who break the law; of course they should be. But if we’re going to act as a society based on the rule of law, then the government should be bound by those same laws. If the government screws up, it shouldn’t be allowed to use that screw-up to get what it wants, just like a robber can’t keep the money he steals. The result is that sometimes injustice occurs, but the alternative is far worse.

    Comment by Brian Martinez — 30 August 2006 @ 02:47

  10. It’s actually two different crimes, if you think about it: the property crime of B&E, and the violation of the person’s rights.

    Breaking and entering should not be considered a crime if it does not constitute violation of rights.

    You may think the victim is somehow being punished again when their perp goes free

    No, I don’t. I think the next victim is the one being “punished” when the perpetrator goes free. I, frankly, don’t give a shit whether anyone gets “punished” for a crime. I care whether people who are shown to be a threat to the rights of others, either actively and maliciously or via depraved indifference, are allowed to continue to violate the rights of others. A system of jurisprudence should be based on protecting rights, not on vengeance.

    If it became more clear as to why and how the government lost, say, a murder case due to procedural errors, then people just might start demanding a little more accountability from the government. I’m not holding my breath of course, but it’s possible.

    Meanwhile, someone who has demonstrated zero regard for the rights of others and will likely violate rights again is allowed to go free to do so. Add all this together, and it’s you you advocate a system wherein the ends (if they are achieved) justify the means.

    Yes, yes, I get it. But those facts must still be gathered and presented in court, and they must be gathered in accordance with procedural rules designed to protect the rights of the accused, to ensure due process and a fair trial. I honestly can’t believe you’d think this system would work better without those rules in place.

    It’s a good thing you can’t believe I think that, because I don’t think that. I just disagree with you about what those rules should be. Please stop characterizing my disagreement about what rules should be used to protect individual rights as a belief that rights should not be protected.

    “I beat the guy for 2 hours, and yeah, I may go to prison, but he finally confessed to the crime and told me where the murder weapon is!” This scenario is OK with you?

    Of course not. That’s not just an improperly acquired confession — it’s also a confession that was clearly obtained under circumstances where its content is entirely without validity. After two hours of severe beatings, he might have confessed to crucifying Jesus, too.

    But if we’re going to act as a society based on the rule of law, then the government should be bound by those same laws.

    I both agree and disagree with this statement. The government should be constrained by the same laws as everyone else, but society should not be “based on the rule of law”. Rather, the law should be based on the protection of rights.

    If the government screws up, it shouldn’t be allowed to use that screw-up to get what it wants

    Government doesn’t “want” anything. It is a tool, not an entity. It should be effective as a tool for protecting the rights of the populace. The first step toward that is, of course, to refrain from violating rights itself. The way to ensure this is to remove the ability of proven violators to continue to violate. Period.

    Comment by apotheon — 30 August 2006 @ 03:25

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