Once a criminal defendant has paid his or her debt to society there’s usually a mechanism available to allow them to clean the slate and start over. Record “expungement” varies from state to state, but most states offer some form of record clearance that allows a rehabilatated defendant to wipe the slate clean and claim on a job or license application that they have never been convicted. This legal fiction has real value for people who’ve made a single mistake and learned their lessons, and most state legislatures provide it as an incentive for convicted criminals to stay out of trouble and re-start. This used to work well in the days when the only information available on criminal convictions resided at the courthouse.

Things have changed. Nowadays anyone with $10 can pay an Internet search firm to go out and find criminal history on anyone, “expunged” or not. In a post 9/11 world that is hypersensitive to background history, there have sprung up massive commercial databases that grow daily and never forget. Imagine the following scenario:

Prospective Employer: Does Joe Doakes have a criminal record?
Database Pimp: No, his record’s clean. However, he was convicted 10 years ago of Petty Theft and had his record cleared by court order, and the case dismissed.
Prospective Employer: No kidding? He said on his application he’d never been convicted of a crime. Too bad, he looked promising.

And the affected person never even learns why they didn’t get the job. This is a national crisis that threatens to keep a Big Brother perspective on everyone forever, making liars out of people who have been told by courts that they’ve had their records cleared and could legally claim to have no conviction record. And in this global economy that extends beyond the reach of even national legislation, and where the bells of the Internet are never un-rung, I don’t see any solution. Depressing.

Read the story here.

RP

California joins the growing list of states requiring police to record custodial interrogations. Quoting from a local listserv post, here’s the story:

Senate Bill 171, authored by Senator Elaine Alquist (D-San Jose) was approved by the California Legislature late last night. After more than a year and a half of debate, negotiations and amendments, the measure won approval of both the State Senate and Assembly. Governor Arnold Schwarzenegger now has until September 30 to either sign or veto the measure.

The bill requires law enforcement officers to electronically record all interrogations in violent felony or homicide cases if the interrogation takes place in a police station. Failure to record triggers a cautionary jury instruction which is to be written by the California Judicial Council.

During the Senate Floor Debate, Senator Elaine Alquist assured her colleagues that the bill is designed to “stop convicting innocent individuals.” Many studies have confirmed the fear that false confessions often times result in wrongful convictions. A study by Northwestern Law School determined that half of the wrongful convictions in Illinois involved false confessions. A New York law school survey revealed that of those individuals exonerated by DNA evidence, 24% were prosecuted using false confessions.

In July of this year the California Commission on the Fair Administration of Justice recommended that all interrogations be electronically recorded. http://www.ccfaj.org/documents/reports/false/official/falconfrep.pdf

Its research indicated that false confessions are the second leading factor in wrongful convictions.

CACJ joined the California Public Defender’s Association and the ACLU (the lead organization) as co-sponsors of the bill. In addition, the California District Attorney’s Association and the California Attorney General supported the bill.

To view the final text of the Senate Bill, click here.

RP

A new tool has become available for law enforcement to catch speeders (and who knows that other applications to come): laser guns. Although the guns have limitations (e.g., the requirement of a direct line of sight, making them less useful in bad weather), they make it far easier to target an individual automobile, making up for a big failing of radar guns. And, unlike radar, they can’t be used while driving.

When I think of the number of people who are arrested every year for aiming ground-based laser guns at commercial airlines in flight (temporarily blinding the pilots), I have to wonder when we’ll see the first incident of a motorist blinded by a laser-wielding police officer on a traffic beat.

Read the story here.

RP

From the antipolygraph.org blog comes this story about 2 United States citizens of Pakistani descent being denied re-entry into the United States because of their refusal to submit to a polygraph examination. I find it amazing that this quackery remains a mainstay of law enforcement, particularly on something as important as terrorism investigation. Given how easy it is to beat a polygraph if you want to, does this mean that terrorists are getting into the country because some bureucrat in a white coat gave them a pass based on a polygraph result? (shakes head)

Read the story here.

RP

We put them on planes and they help us to reconstruct what happened when things go terribly wrong. So it makes sense that black boxes would start appearing in automobiles; it fits thematically with the trend toward digitally memorializing all testimonial information in order to assure accurate reconstruction of disputed events.

Tell that to the New York teenagers involved in a fatal traffic accident when their cars raced through a red light and rammed a jeep, killing its two passengers. The drivers told police they were traveling 50-55mph at the time of the accident. What they didn’t realize was that one of the cars — a late model Corvette — carried an Event Data Recorder (EDR) and it dutifully reported an actual speed of 139mph. Oops. When that data became available, prosecutors upped the charges to murder.

The implications are enormous and while civil libertarians everywhere decry the intrusions into our privacy, the government is ratcheting up requirements to have these on board all new automobiles. Meanwhile, all tech-savvy defense lawyers should be gearing up their challenges to the onboard software that these devices are using to turn their automobiles into silent witnesses. The first thing I’d do with a case like that is demand to see the software code that is tattling on my client. How reliable is this? Is it science? Has it attained an established acceptance in the scientific community? Or is this just the latest form of junk science?

Should be very interesting stories ahead.

Read the story here.

RP

I’ve been waiting to see signs of this and, after seeing airline security alert levels raised today, the stories are starting to emerge. Here’s a story about a technology that uses video cameras to scan luggage for suspicious items by monitoring the electromagnetic energy given off by different objects. So explosives can be theoretically be detected by their electromagnetic signal. Cool.

But the really interesting aspect of this story is that this same technology can be used to monitor *people* and watch for signs of “distress” and “erratic body movements” that can somehow lead to suspicious behavior. How this will be used in practice is anyone’s guess, but I wouldn’t be surprised to see police start using this to catch “furtive movements” giving rise to probable cause to detain and search suspicious individuals. Sounds far fetched now, perhaps, but it’s getting very hard to determine where adequate security from terrorists begins and sufficient protection of individual liberties and privacy ends. We’re facing a real sea change of expectations.

Read the story here. Thanks to Stacy Jones for the story.

RP

Federal courts have been using the ECF/Pacer online filing system for a long time, making most court documents available to all litigants. But for the first time ever, a federal court has placed all evidence in a criminal case onto the Internet. And it’s one hell of a case: United States vs. Zacarias Moussaoui.

It’s a fascinating look at all the evidence used to convict Moussaoui in the only trial related to the World Trade Center attacks of September 11. There are videos, photos, transcripts, everything in the case. Incredible resource for any 9/11 historians, or for anyone else wanting an inside look at the incidents and events leading to this tragedy and Moussaoui’s participation.

This is just the latest step in the intersection of courts and the Internet. As more courts get more familiar and comfortable with the process, we can expect to see more of this kind of thing. And that benefits everyone.

View all the online evidence here.

RP

This is really starting to worry me. Defendants have learned that if they attack their lawyers in front of the jury when the case isn’t going well, they can ask for a mistrial. What’s a judge going to do, let the jury that witnessed them attack their laywer in court carry on as if nothing had happened?

That’s exactly what one Minnesota judge did and it may be the only way to deal with this growing problem (I’ve written about other cases here and here).

The appellate opinions coming out of this line of cases is going to make for some very interesting reading. I’ll report back on what I find.

Meanwhile, read the latest account here.

RP

Another police beating was caught on video, this one resulting in the tragic death of what appears to be a completely innocent and mentally disabled shopper. The scene was captured by in-store surveillance cameras at a convenience store in Spokane, Washington. The decedent, Otto Zehm, is seen walking into the store and is immediately rushed by police officers who later claimed that he “lunged” at them. Unfortunately for the police, there is no “lunging” seen on the tape, and witnesses who were present have testified that Zehm didn’t have time to do any lunging; the police were on him in seconds.

It’s not clear what happened that caused police to go after Zehm, but it’s believed that police were mistaken in their identification of this man as a crime suspect in an unrelated matter. Unfortunately for Mr. Zehm, the beating was so intense that he went into cardiac arrest on the scene and died shortly thereafter. Police claim he resisted throughout the ordeal, but there’s nothing in the tapes to support that assertion and the local medical examiner has ruled the death a homicide. Police “investigating” the case have cleared the officers involved of any wrongdoing, saying they acted according to “procedures”

Deaths resulting from this kind of unprovoked assault on innocent citizens are rare, but unprovoked assaults not so much so. Police are emboldened with the authority they get from courts that are consistently eroding our rights and the unwillingness of prosecutors to go after these kinds of cases. With fewer legal impediments, and no one to hold them accountable, what’s to stop a bad cop from acting out on this kind of impulse? Expect to see more and more stories like this. And keep in mind that the only ones we hear about are the ones that have been picked up by the fortuitous presence of technology on the scene. Imagine how many you don’t hear about.

The videotapes and 911 tapes were released to the public today. According to local news accounts, the Sheriff’s department is conducting its own “independent” investigation.

Read about this story here.

View the uncut video here.

RP

It was bound to happen. With most police cars now equipped with laptop computers and real time online data access, it’s not surprising to see new technologies emerging to aid law enforcement in keeping an eye on, well, all of us. I’ve done ride-alongs with the Issaquah Police Department and I was surprised at how frequently and casually police officers check license plates. It’s a habit, they can’t pull into a parking lot without “running a plate”. They don’t have (or need) probable cause or even reasonable suspicion, not even “a hunch”. The only thing stopping them from running every plate they see on the street is the logistical impossibility of doing so.

Enter technology. I was reading tonight from the Spring 2006 issue of TECHbeat, a periodical dedicated to “Reporting Developments in Technology for Law Enforcement, Corrections, and Forensic Sciences”, and the cover story hails License Plate Recognition as a hot new technology to watch. With these systems, police can automatically scan and read every license plate they see on the street, feeding the numbers into their database and randomly running down everyone who drives by. According to the article, the typical automatic license plate recognition system uses infrared light to illuminate a plate even in the dark. High speed cameras photograph the plate and feed it to the system which optically recognizes the characters and then runs the plate against known databases.

The technology is being used for a number of different applications, some of which make obvious sense (tracking stolen vehicles and plates), and some of which raise disturbing questions about privacy rights. Consider this paragraph:

“Automatic license plate recognition can also help police locate individuals who venture into prohibited areas, such as convicted sexual predators who come too close to a school or someone who comes too close to a residence in violation of a restraining order. Systems can call on integrated Global Positioning Systems (GPS) capabilities to issue an alert if an offender’s license plate is located in a restricted area”.

Hmm. When did automobiles start getting criminal records? Is it possible that the cars being driven into these areas might be registered to “offenders” but driven by innocent family members? The article does warn about the dangers of misidentifications, but does nothing to comfort the privacy concerns raised by such random database searching.

And police are not shy about using the technology randomly and frequently. According to Charlie Beck of the Los Angelese Police Department,

“It offers huge advantages over the way we currently do it. Even on a good day, a 2-person car can run 100 to 120 plates. With this system, we can scan upward of 1000 plates an hour.”

There are at least seven companies listed in the article selling these systems under such brand names as “Platescan”, “TAG-NABIT”, and “Mobile Plate Hunter”. I’m wondering how long it will take before these License Plate Recognition systems are installed at all those locations where you see “Traffic cams” today …

RP