Archive for August, 2010

Taping a Cop Making an Arrest is a Felony

Monday, August 30th, 2010

I think the following news story speaks for itself:

ACLU Challenges Illinois Eavesdropping Act

Lawsuit cites cases of people charged with breaking the law for making audio recordings of police in action

Chicago, IL.  Aug. 18 – It’s not unusual or illegal for police officers to flip on a camera as they get out of their squad car to talk to a driver they’ve pulled over.  But in Illinois, a civilian trying to make an audio recording of police in action is breaking the law.

"It’s an unfair and destructive double standard," said Adam Schwartz, a lawyer with the American Civil Liberties Union of Illinois.  

On Wednesday, the ACLU filed a federal lawsuit in Chicago challenging the Illinois Eavesdropping Act, which makes it criminal to record not only private but also public conversations made without consent of all parties.

With cell phones that record audio and video in almost every pocket, the ability to capture public conversations, including those involving the police, is only a click away. That raises the odds any police action could wind up being recorded for posterity.

Opponents of the act say that could be a good thing and certainly shouldn’t lead to criminal charges.

The ACLU argues that the act violates the First Amendment and has been used to thwart people who simply want to monitor police activity.

The head of the Chicago police union counters that such recordings could inhibit officers from doing their jobs.

In its lawsuit, the ACLU pointed to six Illinois residents who have faced felony charges after being accused of violating the state’s eavesdropping law for recording police making arrests in public venues.

Adrian and Fanon Perteet were passengers in a car at a DeKalbe MacDonald’s drive-through in November when police moved in. Officers suspected that the car’s driver was under the influence, according to the brothers.

Fanon Perteet, 23, said he was scared. Past experiences with police had left him suspicious of the officer’s motives, he said. So he pulled out his cell phone and turned on the video camera, which also records sound.

"I felt obligated to record so nothing happened," said Perteet, an event planner.

When the officers realized they were being taped, Perteet was arrested and taken to a squad car. Adrian Perteet, 21, a student at Northern Illinois University, then took out his cell phone and started recording his brother’s arrest.

Both brothers were charged with violating the eavesdropping act, a felony, their lawyer Bruce Steinberg said. They pleaded guilty in April to attempted eavesdropping, a misdemeanor, to avoid felony convictions, Steinberg said.

The Perteets were ordered to apologize to the officers. They were given back their cell phones, which had been seized by police, but told to delete the recordings. If they complete the terms of the sentence and stay out of trouble, the charges will be dismissed, Steinberg said…

So…what are the police trying to hide?  Are they afraid that audio or video tapes will contradict their version of events?  Why would they be afraid of video or audio evidence?  

By the way, the punishment for a felony is imprisonment in the state prison for at least a year.



Judges Influenced by Revenues from DUI Convictions?

Monday, August 23rd, 2010

As I’ve said in previous posts, drunk driving has become a cash cow for local governments starving for revenue.  See DUI: Government’s Cash CowHow to Make a Million in the DUI Business and What if the Cash Cow Goes Dry?.  This has lead to such things as putting pressure on cops with DUI arrest quotas.  See Do Police Have Quotas?, "Yes, We Have No Quotas" and  "Inside Edition" Documents DUI Quotas Across the US.  The hunger of municipalities for money might also influence some judges in their rulings… 

Ex-prosecutor challenges process of picking local court judges

 Atlantic City, NJ.  Aug. 9 – Defendants appearing in municipal court have little chance of getting a fair hearing because judges are more concerned with getting reappointed than handing out justice, and the courts are more focused on making money, a former municipal prosecutor said.  

Superior Court Judge Valerie Armstrong heard arguments Monday in a lawsuit filed by Robert Pinizzutto, a former Hamilton Township municipal prosecutor, who claims that the way municipal judges are appointed may affect how they rule…

He also said he intends to provide evidence that municipal fines and assessments bring in excess of a half-billion dollars to municipalities, adding that the figure was from several years ago….

Robert Sandman, who represents Hamilton’s Verno, called it "patently absurd" to say that Norman Merrill Jr. — Pinizzutto’s client who is accused of driving while intoxicated — cannot get a fair trial because of the way the judge is appointed. 

"(The judge) would have to violate his oath as a judge and the professional code of conduct as a lawyer to make that true", Sandman said.

Yes, he would…but he may be more likely to get reappointed by the cash-hungry municipality.


Another Case of Cop Immunity

Friday, August 20th, 2010

 The drunk driving double standard continues…

Outcry Swift After DUI Charges Against Officer Dropped

Indianapolis, IN.  Aug. 20 – Questions about how Indianapolis police have handled a fatal drunken-driving investigation of one of their own officers became that much more pointed Thursday.

Marion County Prosecutor Carl Brizzi announced he would drop the most serious charges against officer David Bisard. Why? Because Bisard’s fellow police officers had botched the case.

The reaction was swift — and far-reaching.

An embarrassed Public Safety Director Frank Straub announced that the FBI will be brought in on the case. He also removed a lieutenant from his positions as commander of the department’s hit-and-run unit and coordinator of the multiagency Fatal Alcohol Crash Team.

One victim’s family called the dismissal a "travesty." A legal expert said the police ineptness leaves the public with little choice but to wonder whether the bungled case was more than an accident. And Mayor Greg Ballard has become increasingly frustrated as he seeks answers, as well.

"The people in the city are not the only ones wondering what happened at the scene," Ballard said. "I am, too."

Straub and Indianapolis Metropolitan Police Chief Paul Ciesielski repeated their insistence Thursday that Bisard received "absolutely no deference" from fellow officers Aug. 6 after he crashed his cruiser into two motorcycles that were stopped at a light.

The impact of the crash — which occurred while Bisard, 36, was responding to a request for help serving a warrant, with his cruiser’s lights and siren activated — killed Eric Wells, 30, and seriously injured two other riders.

Bisard surrendered after prosecutors learned a blood test had shown his blood-alcohol level was 0.19 — more than twice the level at which an Indiana driver is considered intoxicated.

But that arrest didn’t come until five days after the crash because of the lag in test results. The delay in arresting Bisard drew scrutiny from some — as did the fact that no officers conducted field-sobriety or breath tests of Bisard at the scene.

Or that nobody seemed to suspect Bisard might have been drinking. Officers who interacted with Bisard after the crash have insisted he showed no signs of being impaired.

But more problematic for Brizzi: The officers failed to follow proper procedures in collecting that blood sample — and it was the only evidence that Bisard was intoxicated…

"Everything else can be explained away," said Henry Karlson, an expert on criminal procedure and a professor emeritus at Indiana University School of Law-Indianapolis.  

But add in the mishap with the blood draw by seasoned alcohol-crash investigators, he said, and "there’s only so many mistakes you can make before it starts looking like a plan."

Who will guard the guardians?



The Education of a Prosecutor

Friday, August 13th, 2010

Q. I wish I could get this drunk driver for murder, not just vehicular manslaughter.

A. You’re the prosecutor: You can charge him with anything you want.

Q. But how would I prove the mental state for murder: malice?  I mean, that requires malice.

A.  But the law says you can imply malice.

Q. OK, but imply it from what?

A. "It is implied when…the circumstances attending the killing show an abandoned and malignant heart". [Calif. Penal Code sec. 188]

Q. Yeah, but what the heck is "an abandoned and malignant heart"?

A. Our Supreme Court says it’s when someone "does an act with a high probability that it will result in death and does it with a base anti-social motive and a basic disregard for human life".  [People v. Washington, 62 Cal.2d 777 (1965)]

Q. I don’t know if that’s any easier to prove. "High probability" a DUI will result in death? Anyway, the guy was just drunk: How can I prove "base  antisocial motive" and "wanton disregard for human life" from that?

A. Simple: Don’t prove it, just imply that, too — from the defendant’s knowing that DUI is dangerous. [People v. Watson, 30 Cal.3d 290 (Cal.1981)]

Q. You mean all I’ve got to do is prove he knew drunk driving is dangerous, and I’ve got malice?

A. Yep.  We call it a "Watson murder".

Q. That’s a long way from "high probability it will result in death".

A. Don’t worry about it.

Q. But how do I prove he knew it was dangerous?

A. Like everything else, imply he knew it. Show he’s got a prior DUI conviction [People v. McCarnes, 224 Cal.Rptr. 846 (Cal.App. 1986)] or he’s been to Alcoholics Anonymous [People v. Brogna, 248 Cal.Rptr. 761 (Cal.App.1988)].

Q. But what if the guy isn’t an alcoholic and has never been convicted before?

A. .Just find someone who once told him drunk driving was dangerous.

Q. Really?  What if we can’t find someone….

A. Has he ever attended a driver education class, like in high school? They usually tell them that DUI is dangerous. [People v. Murray, 275 Cal.Rptr. 498 (Cal.App. 1990)].

Q. But doesn’t everybody know DUI is dangerous?

A. Of course.

Q. Then doesn’t everybody have malice if they drive under the influence?

A. Now you’re getting it.

Q. Well, if proving murder in a DUI case is that easy, why not go for the death penalty?

A. They already tried it in a North Carolina case, but the jury went for life without parole. We’re working on it.

Note: Judges in California make anyone convicted of DUI sign a statement saying they understand that DUI is dangerous. This is done so that he can be prosecuted for murder if he is later involved in a DUI-related fatality accident. In other words, despite what the laws say, the crime becomes murder rather than manslaughter if he signed a piece of paper saying DUI is dangerous. Another triumph of form over substance….



Driving Under the Influence of…Bread

Monday, August 9th, 2010

  Phil Price, a friend and nationally known DUI attorney in Montgomery, Alabama, conducted an interesting series of tests a few years ago on one of the most commonly used breath testing machines.  Without consuming any alcoholic beverages, he submitted himself to repeated breath testing — after eating various types of food.

His findings were startling.

After consuming almost any type of bread product — white loaf bread, donuts, pretzels, pastries, etc. — Price consistently registered blood-alcohol readings on the machine. These levels were commonly around .03%, but rose as high as .05% (enough, along with a drink or two, to reach illegal levels). Further, the Intoxilyzer’s slope detector (an electrical circuit designed to detect alcohol from the mouth rather than from the lungs) failed to indicate the presence of any "mouth alcohol". He reported this in an article entitled "Intoxilyzer: A Bread Testing Device?", 15(4)Drinking/Driving Law Letter 52.

Reacting to the use of this article by defense attorneys in their state, the Washington State Toxicology Laboratory conducted their own studies to refute the findings — this time with the machine used in Washington, a DataMaster. Unfortunately, their research only confimed Price’s experience.

As reported in Logan and Distefano, "Ethanol Content of Various Foods and Soft Drinks and their Potential for Interference with a Breath-Alcohol Test", 22 Journal of Analytical Toxicology 18 (1998), a variety of breads and soft drinks were tested and found to contain no alcohol. Alcohol-free subjects then ingested these products and provided breath samples into a DataMaster. The law enforcement researchers’ conclusions:

We found that, particularly at low concentrations but as high as 0.046g/210L, mouth alcohol rather than expiratory breath alcohol may be reported as apparent true breath alcohol…

In other words, alcohol-free subjects who consumed bread or soft drinks were causing the machines to read up to .05% blood alcohol concentrations (readings are rounded off to closest 1/100th percentile). Furthermore, the slope detection system failed to screen the effects of mouth alcohol from that of alcohol coming from the lungs:

It is evident from these results that the slope detector feature was unable to distinguish mouth-alcohol concentrations at these very low levels.

What caused bread to register on breath machines as alcohol? The theory of the state lab’s experts:

Most baked products with listed contents indicating they contained yeast did in fact have some alcohol present. Alcohol is produced by the fermentation process in yeasts by their action on simple sugars used in preparing the dough….Although most of the alcohol in the dough is lost during the baking process, some is evidently retained in the matrix of the bread…

Parenthetically, there exists additional scientific literature reporting intoxication in animals eating dough and sourdough. Suter, "Presumed Ethanol Intoxication in Sheep Dogs Fed Uncooked Pizza Dough", 69(1) Australian Veterinary Journal 20 (1990); Thrall, et al., "Ethanol Toxicosis Secondary to Sourdough Ingestion in a Dog", 184(12) Journal of American Veterinary Medical Association 1513 (1984).

The effects of bread on breathalyzers is not just an interesting anecdote.  The significance of these findings should be apparent. First, bread dough tends to stick between the teeth and remain there for extended periods of time, later to be breathed into a breathalyzer; it also absorbs alcohol while between the teeth. Second, although it is not illegal to drive with a .04% blood alcohol level,adding one or two drinks to the bread reading could raise that above the illegal .08% level.