In addition to being excellent news on the policy merits, the fact that Maine has an initiative system means that the state provides an excellent test case for claims that recent initiatives opposing same-sex marriage were driven by institutional critiques of judicial review or by substantive policy views. And pretty much all the evidence continues to suggest that it's the latter. The whole argument is essentially one big pundit's fallacy. People act to oppose same-sex marriage because they oppose same-sex marriage irrespective of the institution that annunces the policy change, not because they have a well-worked-out theory of democracy that happens to comport with Alexander Bickel's.
Thursday, October 22, 2009
Speeding Ticket Story: A Tough Situation
Most of our speeding ticket cases are straightforward. We get hired, get all the information in order, contact the court and prosecutor, negotiate a reduction to something less, and let the client know the result and what they need to do. There's more to it than that, but that's the essence.
Every once in a while we get a client who needs a trial. This story is an example of that.
I'll call her Marina - not her real name. In her late 20s, she is a fashion designer in Manhattan. Marina also has at least one bad habit - she likes to drive fast.
She called us for a high speed - 92 in a 55 - an 8-point speed. But that's not the worst of it. She already had one speeding conviction within the last 18 months, along with a 3-point moving violation. Marina also had another high speed pending, in New York City. The location matters, because in the NYC traffic courts there are generally no deals. So there was a high likelihood that Marina would have a second speeding conviction within 18 months. In our case, if we could not get it out of speeding, she'd have a third speed and her license would be revoked.
The location of our ticket also mattered. In this particular court, the judge is known for being difficult. Not that he's unpleasant, but he rejects deals he doesn't like. And he doesn't like high speeds. This was also in a county where the deputy sheriffs prosecute their own tickets - the DA will normally not negotiate these tickets. It gets even worse. The deputy who wrote the ticket sees himself as Super Deputy. Please note he is not the same as the one in my previous blog post, Supercop. He's also much more pleasant and friendly than that guy.
Putting this all together, we knew it was likely we'd have to do a trial. We charged Marina significantly more than our usual fee. She didn't hesitate.
I showed up for the trial date. Super Deputy was late, giving me hope that he wouldn't show and we'd get a dismissal. He was teasing me. When he did show up, he would only offer a 6-point speed. The points would suspend Marina's license, but worse, the third speed would mean revocation. I suggested a 5-point violation for passing a stopped school bus. She's still get suspended, but that's a lot better than a revocation. No deal. Super Deputy used a typical excuse - the judge won't go for it. Right.
So I got ready for a trial. But the judge would not let us go forward because Marina wasn't there. So the trial was adjourned.
I had a great conversation with Super Deputy before I left. He seemed very prepared for trial, more so than most cops I've seen. On the bright side, he had been accepted into a job in a nearby city police department - with significantly better pay. He was waiting for the next opening, but that would be months away. Would the case be adjourned long enough that he'd be gone?
No such luck. When we showed up for the next date, which had been adjourned a few months, he was still a deputy. With the rough economy, the city had a hiring freeze.
We waited for a couple hours while the rest of the traffic cases were resolved, then started the trial. Super Deputy did not handle it well. I made appropriate objections to a number of things he did and said, and he got rattled. At one point I made an objection (hearsay I think), and he said: "Your honor, I don't know what defense counsel wants me to do."
The Assistant DA stuck around to watch. After Super Deputy got completely rattled, he finally offered to step in and conduct the prosecution. We went outside to chat, and he agreed to reduce to the school bus violation.
Walking out, I asked Marina if she understood what happened. Her response: "You just saved my ass."
As we walked out of the building, there was a guy out front with an umbrella who greeted Marina. He waited while we had a last bit of conversation, then escorted her to a $100,000 Mercedes. She got in the back and he got into the driver's seat. She had a driver ... from Manhattan. I'm wondering if the car ride up and back cost more than my fee.
Every once in a while we get a client who needs a trial. This story is an example of that.
I'll call her Marina - not her real name. In her late 20s, she is a fashion designer in Manhattan. Marina also has at least one bad habit - she likes to drive fast.
She called us for a high speed - 92 in a 55 - an 8-point speed. But that's not the worst of it. She already had one speeding conviction within the last 18 months, along with a 3-point moving violation. Marina also had another high speed pending, in New York City. The location matters, because in the NYC traffic courts there are generally no deals. So there was a high likelihood that Marina would have a second speeding conviction within 18 months. In our case, if we could not get it out of speeding, she'd have a third speed and her license would be revoked.
The location of our ticket also mattered. In this particular court, the judge is known for being difficult. Not that he's unpleasant, but he rejects deals he doesn't like. And he doesn't like high speeds. This was also in a county where the deputy sheriffs prosecute their own tickets - the DA will normally not negotiate these tickets. It gets even worse. The deputy who wrote the ticket sees himself as Super Deputy. Please note he is not the same as the one in my previous blog post, Supercop. He's also much more pleasant and friendly than that guy.
Putting this all together, we knew it was likely we'd have to do a trial. We charged Marina significantly more than our usual fee. She didn't hesitate.
I showed up for the trial date. Super Deputy was late, giving me hope that he wouldn't show and we'd get a dismissal. He was teasing me. When he did show up, he would only offer a 6-point speed. The points would suspend Marina's license, but worse, the third speed would mean revocation. I suggested a 5-point violation for passing a stopped school bus. She's still get suspended, but that's a lot better than a revocation. No deal. Super Deputy used a typical excuse - the judge won't go for it. Right.
So I got ready for a trial. But the judge would not let us go forward because Marina wasn't there. So the trial was adjourned.
I had a great conversation with Super Deputy before I left. He seemed very prepared for trial, more so than most cops I've seen. On the bright side, he had been accepted into a job in a nearby city police department - with significantly better pay. He was waiting for the next opening, but that would be months away. Would the case be adjourned long enough that he'd be gone?
No such luck. When we showed up for the next date, which had been adjourned a few months, he was still a deputy. With the rough economy, the city had a hiring freeze.
We waited for a couple hours while the rest of the traffic cases were resolved, then started the trial. Super Deputy did not handle it well. I made appropriate objections to a number of things he did and said, and he got rattled. At one point I made an objection (hearsay I think), and he said: "Your honor, I don't know what defense counsel wants me to do."
The Assistant DA stuck around to watch. After Super Deputy got completely rattled, he finally offered to step in and conduct the prosecution. We went outside to chat, and he agreed to reduce to the school bus violation.
Walking out, I asked Marina if she understood what happened. Her response: "You just saved my ass."
As we walked out of the building, there was a guy out front with an umbrella who greeted Marina. He waited while we had a last bit of conversation, then escorted her to a $100,000 Mercedes. She got in the back and he got into the driver's seat. She had a driver ... from Manhattan. I'm wondering if the car ride up and back cost more than my fee.
The Supreme Court on the DWI Exception to the Constitution
The Supreme Court decided not to hear an appeal on a drunk driving case that was dismissed. Virginia's highest court threw out the conviction in Harris v. Commonwealth (a pdf file). It found that the stop was unconstitutional - based only on an anonymous tip.
Chief Justice Roberts (and Justice Scalia) felt the Court should have reviewed the case. Below are some excerpts of Roberts' opinion). His writing is in italics and mine is in plain text. Citations are generally omitted.
[T]he Virginia Supreme Court overturned the conviction. It concluded that because the officer had failed to independently verify that Harris was driving dangerously, the stop violated the Fourth Amendment’s prohibition on unreasonable searches and seizures.
I am not sure that the Fourth Amendment requires such independent corroboration before the police can act, at least in the special context of anonymous tips reporting drunk driving.
The "special context" is troubling. It fits with criticism I've read in the past of a DUI exception to the Constitution (usually credited to California DUI lawyer Lawrence Taylor), as well as similar concerns about a "drug war" exception for drug cases.
In Florida v. J. L. ... we explained that anonymous tips, in the absence of additional corroboration, typically lack the “indicia of reliability” needed to justify a stop under the reasonable suspicion standard. ... But it is not clear that J. L. applies to anonymous tips reporting drunk or erratic driving. J. L. itself suggested that the Fourth Amendment analysis might be different in other situations.
There is no question that drunk driving is a serious and potentially deadly crime, as our cases have repeatedly emphasized. ... The imminence of the danger posed by drunk drivers exceeds that at issue in other types of cases.
With all due respect to Chief Justice Roberts and Justice Scalia, this argument is just plain rubbish. I'd buy the argument if there was a tip about a terrorist with a nuclear weapon in his car, but taking it to the level of drunk drivers is going way too far.
Roberts' concern about the danger of the drunk driver was resolved in this case - the driver was stopped and taken off the road that night. Once they were in Court, the imminent danger was gone.
Perhaps a more moderate step here would be for Congress to legislate civil immunity for police making stops of suspected drunk drivers. Of course, that would prevent innocent people from suing to enforce their own constitutional rights. But it appears Roberts and Scalia don't care about that.
The conflict is clear and the stakes are high. The effect of the rule below will be to grant drunk drivers “one free swerve” before they can legally be pulled over by police. It will be difficult for an officer to explain to the family of a motorist killed by that swerve that the police had a tip that the driver of the other car was drunk, but that they were powerless to pull him over, even for a quick check.
Nice emotional touch. I'm waiting for the day when Roberts and Scalia explain their rules to the families of innocent defendants abused by cops and prosecutors.
Courts sometimes have to balance competing interests. Roberts and Scalia apparently feel that protecting the public from drunk drivers is more important than protecting people from police abuse. But the language of the Fourth Amendment is clear. It doesn't mention any exceptions, not even for the perceived terrorists - Indians and British loyalists - of that period in our history. Conservatives are supposed to let legislatures do the balancing. So much for Scalia supporting the text of the Constitution.
Drunk driving is a real problem. Eviscerating the Constitution is not the best solution. I've proposed other ideas in the past on my Stop Wasting Money blog. Mass transit is my favorite, but there's more.
Chief Justice Roberts (and Justice Scalia) felt the Court should have reviewed the case. Below are some excerpts of Roberts' opinion). His writing is in italics and mine is in plain text. Citations are generally omitted.
[T]he Virginia Supreme Court overturned the conviction. It concluded that because the officer had failed to independently verify that Harris was driving dangerously, the stop violated the Fourth Amendment’s prohibition on unreasonable searches and seizures.
I am not sure that the Fourth Amendment requires such independent corroboration before the police can act, at least in the special context of anonymous tips reporting drunk driving.
The "special context" is troubling. It fits with criticism I've read in the past of a DUI exception to the Constitution (usually credited to California DUI lawyer Lawrence Taylor), as well as similar concerns about a "drug war" exception for drug cases.
In Florida v. J. L. ... we explained that anonymous tips, in the absence of additional corroboration, typically lack the “indicia of reliability” needed to justify a stop under the reasonable suspicion standard. ... But it is not clear that J. L. applies to anonymous tips reporting drunk or erratic driving. J. L. itself suggested that the Fourth Amendment analysis might be different in other situations.
There is no question that drunk driving is a serious and potentially deadly crime, as our cases have repeatedly emphasized. ... The imminence of the danger posed by drunk drivers exceeds that at issue in other types of cases.
With all due respect to Chief Justice Roberts and Justice Scalia, this argument is just plain rubbish. I'd buy the argument if there was a tip about a terrorist with a nuclear weapon in his car, but taking it to the level of drunk drivers is going way too far.
Roberts' concern about the danger of the drunk driver was resolved in this case - the driver was stopped and taken off the road that night. Once they were in Court, the imminent danger was gone.
Perhaps a more moderate step here would be for Congress to legislate civil immunity for police making stops of suspected drunk drivers. Of course, that would prevent innocent people from suing to enforce their own constitutional rights. But it appears Roberts and Scalia don't care about that.
The conflict is clear and the stakes are high. The effect of the rule below will be to grant drunk drivers “one free swerve” before they can legally be pulled over by police. It will be difficult for an officer to explain to the family of a motorist killed by that swerve that the police had a tip that the driver of the other car was drunk, but that they were powerless to pull him over, even for a quick check.
Nice emotional touch. I'm waiting for the day when Roberts and Scalia explain their rules to the families of innocent defendants abused by cops and prosecutors.
Courts sometimes have to balance competing interests. Roberts and Scalia apparently feel that protecting the public from drunk drivers is more important than protecting people from police abuse. But the language of the Fourth Amendment is clear. It doesn't mention any exceptions, not even for the perceived terrorists - Indians and British loyalists - of that period in our history. Conservatives are supposed to let legislatures do the balancing. So much for Scalia supporting the text of the Constitution.
Drunk driving is a real problem. Eviscerating the Constitution is not the best solution. I've proposed other ideas in the past on my Stop Wasting Money blog. Mass transit is my favorite, but there's more.
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