Andrei Chikatilo was serial killer who murdered at least 56 young women and children starting in 1978 until his capture in 1990. The details are as bad as one might expect, and apparently the murders and mutilations were how he achieved sexual release. His killings seemed unpredictable to investigators at the time, and even in retrospect there appears to be no clear pattern.

Now, however, UCLA mathematicians Mikhail Simkin and Vwani Roychowdhury have published a paper where they see not only a pattern, but one that is meaningful to those who might want to stop other serial killers. In their paper, “Stochastic Modeling of a Serial Killer,” published a couple of days ago, Simkin and Roychowdhury discovered that the killings fit a pattern known as a “power law distribution.” One of many kinds of statistical distribution (the bell curve being another), power law distributions are often found for out-of-the-ordinary events like earthquakes, great wealth, website popularity and the like.

First, they looked at a timeline of his killings. They saw apparently random periods of inactivity. Each time Chikatilo started killing again, however, the next murder would come soon after. And the one after that even sooner. And so on and so on until the next period of no killing.

The study doesn’t take account of the reasons for two of the longer pauses — Chikatilo’s first arrest and detention on suspicion of being the killer, and the period where the media started reporting on the investigation — but the reasons aren’t important. What’s important is being able to make some kind of sense out of the seemingly random events.

What they noticed was that, when these ever-increasing murders were plotted on a logarithmic scale, they came out in almost a straight line — indicating the possibility that a power law might be at work here. What’s more than that, they noticed that the curve’s exponent of 1.4 was pretty darn close to the 1.5 found for the power curve of epileptic seizures. What if (they wondered) the killings fit a neurological pattern? What if, like epileptic seizures, psychotic events like these killings came about when an unusually large number of neurons in the brain started firing together?

So they plugged in some givens of what is known about how neurons work, modeled on how epilepsy works. They made the model a little more realistic — seizures come unbidden when the conditions are met, but killers probably need some time to plan once their brain is ready for the next attack. Then they ran a simulation.

The simulated probabilities for the length of time between murders tracked the real-life data almost perfectly.

In other words, if you know when the last murder took place, you can calculate the probability that another killing will happen today. And the more time has passed since the last one, the less likely another will happen.

-=-=-=-=-

Fascinating stuff, but so what? The so what is that statistical analysis has become a big part of modern crimefighting. CompStat has gone from an attempt to see where crime was happening in early 1990s NYC, to a tool used by police forces across the country to predict where to post their officers tomorrow. Homeland Security has a new thing they call FAST (for Future Attribute Screening Technology) they claim to be 70% accurate in the lab, that is said to calculate the probability a given individual is planning to commit a crime. “Predictive policing” has gone from science fiction to routine in the blink of an eye.

An appreciation of what statistics can — and cannot — do is becoming a big factor in law enforcement. Stats can’t tell you who the perp is, but they’re getting better and better at figuring out where and when the next crime might happen. Police departments that react responsibly, by focusing surveillance and manpower on those points where they are most likely to do some good, have a better chance of reducing crime rates with a more efficient use of their resources.

This latest study provides yet another tool, perhaps, for better and more accurate use of statistics by law enforcement. Catching a serial killer by focusing resources based on when and where he’s likely to strike next is a hell of a lot better than relying on the junk science of behavioral profiling.

Of course there’s always the risk that the numbers will be misjudged, that the models will be faulty, that the probabilities will be turned into junk science justifications for injustice. That’s a risk any time law enforcement meets math & science.

But when the numbers aren’t used to point the finger of guilt at a particular person, but rather as a guide to help catch whoever it might be (or prevent him from striking again), then it’s not a bad thing. If it helps law enforcement protect the rest of us, without violating our rights or punishing the wrong people, then hooray for numbers.

Wanda: What would an intellectual do?  What would… Plato do?

Otto: Apol-

Wanda: Pardon me?

Otto: Apollgzz.

Wanda: What?

Otto: Apologize!

Well, no.  He probably wouldn’t.  Not Plato.

And certainly not in the case of Troy Davis, whose final clemency request was denied this morning, and who now faces execution tomorrow evening for the killing of a police officer in 1989.  He was convicted at trial 20 years ago, but since then the reliability of that verdict has been called into serious question.  Seven of the nine major witnesses recanted their testimony, many claiming that the police pressured them to give false eyewitness accounts.  No forensic evidence ever tied Davis to the crime, the murder weapon was never found.  In the intervening years, ten new people have come forward to point the finger at another individual known to have been present at the scene.

So it’s possible that Troy Davis might not have shot the officer.  It’s possible that he might have.  Twenty years of second-guessing and changing stories make it uncertain.  But what is certain is that he was convicted, and that the conviction stands.

Should we be troubled by this?

We started pondering this after our kids’ bedtime story the other night.  We were reading to the lads from the Dialogues of Plato [what, you got a problem with that? Shut up, these are not your children.], specifically the Crito.  That’s the one where Socrates has been condemned to death, and his friend Crito shows up to talk him into escaping.  Boiled down to its essence, the Crito runs something like this:

Crito: Wake up, Socrates, we’re busting you outta here!

Socrates: What are you, an idiot?  You can’t do that.

Crito: No worries.  All the bribes are arranged, the travel’s all taken care of, and you have your choice of local city-states all ready to welcome you with open arms.  Let’s blow this Athens joint and get back to freedom and philosophy!

Socrates: Use your head.  Living is not what’s important.  Living a good life — one that is just and honorable — is what’s important.

Crito: Yeah, but…

Socrates: And it’s not just or honorable to try to escape, because that would violate the will of the state that condemned me.

Crito: Aha, but it was unjust for the state to condemn you.

Socrates: Don’t you “aha” me.  The state provided for my entire existence, educated and protected me, and by living here my whole life I’ve entered into an unspoken contract to abide by the state’s law.

Crito: Yeah, but…

Socrates: Shut up.  Justice requires the rule of law.  No man is above the law.  If you start making exceptions for famous philosophers, or for people who can afford bribes, then there is no more rule of law.  Justice disappears, society crumbles, and everyone suffers.

Crito: Yeah, but…

Socrates: So if I break out of here in violation of the state’s law, then I’ll be the bad guy.  I’ll be the enemy of good government.  When I arrive at Thebes or Thessaly, I will come as an enemy of their good government, too.

Crito: Yeah, but…

Socrates: Think of it this way — I’m taking one for the team.  Yes, I’m suffering from an individual injustice.  But that’s the price you pay sometimes for the general justice of society.  If I didn’t pay that price, we’d all suffer.

Crito: Team!  Team!  Team!

Socrates: That’s the spirit.  Now can I go back to sleep, please?

Okay, so after reading this to the kids (and succeeding in our goal of getting them to go the **** to sleep, already), we started wondering if Plato was right about all this.  After all, individual injustice is still, you know, unjust and all.  Wouldn’t it be proper to break the rules to ensure individual justice?  And that got us thinking about Troy Davis.

The rules are keeping him on death row.  The rules will, absent some remarkable and unforeseen intervention, result in his death tomorrow night.  But we’ve got 20 years of hindsight giving us real doubts that he’s guilty.  The rules also say we don’t punish someone unless their guilt is proven beyond a reasonable doubt, and there’s reasonable doubt all over the place now.  It would be an injustice to execute someone whose guilt is so ridden with doubt.  Doesn’t the enormity of that individual injustice warrant breaking the rules to prevent it?

Plato (speaking through Socrates) would clearly say no.  And our system, our jurisprudence, says no.  Because when push comes to shove, the goal is not individual justice.  The purpose has never been individual justice.  It’s always been justice in general, not in particular.

-=-=-=-=-

Of course, our system tries for individual justice.  Defendants are judged on a case-by-case basis.  It’s terribly inefficient, but that’s how we do it.  We don’t just round up the usual suspects or behead every tenth person.  We treasure the right of the individual to be free from arbitrary and abusive governmental action.  That’s all the Declaration of Independence, the Constitution and the Bill of Rights are saying.  The government can hurt you real bad, and so we make the government obey the rules before it does so, to prevent it from hurting you just because it can.  So we decide each case individually, with rules of evidence and constitutional rights and statutory obligations all designed to make sure the might of the state is coming down on you justly.

Though we strive for individual justice, it’s recognized that mistakes get made.  Guilty people escape punishment, and innocent people get convicted.  We try to minimize that, but it happens.  There are rules in place for the undoing of wrongful convictions.  They’re not perfect, but they are the rules.

But if all the rules were followed, and you’re still wrongly convicted?  Well, at this point your interest in individual justice gets trumped by the goal of general justice.

“Finality” is a big concept here.  At some point, everyone has to move on.  Turn the page, close the book, it’s over.  The system is inefficient enough as it is, without allowing people to revisit each case over and over again until they get the result they like.  Society can’t be expected to bear the burden of retrial after retrial — new cases would never get tried, justice would be denied, because we’d be too busy going over the same old cases.

That’s all our criminal justice system really does:  It closes the book so everyone — accused, victims, witnesses, authorities — can get on with their lives.  The jury decides on an official version of the facts, based on what the government could prove rather than on what really happened.  Nobody expects this official version of the facts to be the whole truth.  It’s just something the system can work with, apply the pertinent laws to, and issue the appropriate punishment or dismissal — so everyone can get on with their lives.

In Troy Davis’ case, the official version of the facts is that he killed that police officer in 1989.  It may or may not be the truth — nobody knows but him — but that’s not what’s important.  What’s important is that the government was able to prove, beyond a reasonable doubt, that he did do it.  Whether they could prove it again today is not what the system and its rules are looking at any more.

He may be taking one for the team, then.  Being killed by the rules of the society in which he lives, which are designed to ensure general justice.  If the rules were to be broken for him, then they could be broken for the next guy, and we’d all suffer.

That’s what our jurisprudence says.  That’s what Plato would say.

-=-=-=-=-

And they’d be wrong.

Because one thing that our jurisprudence and Plato routinely ignore is the simple fact that perception is everything.

If the system is perceived to operate in a just fashion — if the people pretty much see it as protecting the rights of the individual and in general getting things right when deciding guilt and innocence — then the system works.  Crime is deterred by the assurance that it is punished accurately.  The laws are generally respected and obeyed because they are seen to be just and to be justly applied.  Society runs smoothly, and the law is doing its job.

But if the system comes to be perceived as unjust — even if in reality it’s as fair as could be — then society falls apart.  If the laws are seen as someone else’s laws, unfairly applied to this community, then the people of that community will lose respect for the laws and be more likely to break them.  If the laws are seen as disproportionately applied to some people as opposed to others, then they are no longer seen as just.  If the system comes to be seen as arbitrary, uncaring and cruel, then the law fails in its purpose.  Fear, not one’s own sense of right and wrong, becomes the primary reason to comply with the law.  That way lies social upheaval, riot and revolution.

In a world like ours, where the rare injustice is what makes the headlines and gets people talking, the risk is that the one-off will come to be seen as the norm.  If the occasional injustice comes more and more to be seen as the norm, rather than the sad exception, then everyone suffers.

The goal of general justice would die, because the perception of individual injustice killed it.

-=-=-=-=-

Socrates didn’t want to be the exception who broke the rules to achieve individual justice, because that would have corrupted and undermined the stability of his society.  But in today’s world, making exceptions and breaking the rules, in order to preserve a general perception that our system is a just one, is probably something worth considering.

When we were just starting out in the law, we frankly had no problem with the concept of profiling.  Not racial profiling — that’s just a logical absurdity along the lines of “most people who commit crime X are of race Y, therefore it’s reasonable to suspect people of race Y of committing crime X.”  We’re talking about profiling as the concept that a significant number of people who commit crime X exhibit the combination of traits A, B and C, which is a combination rarely encountered otherwise, and therefore if one were to look for people exhibiting traits A, B and C, then one might have a better chance of catching someone guilty of crime X.

Intuitively, this sounds reasonable.  If we were to know, for example, that certain serial arsonists are motivated by a sexual mania, that these arsonists tend to remain near the scene to masturbate or so they can masturbate to the memory later, that they tend to have spotty work and relationship histories, and that they tend to have crappy cars — well then, there’s nothing wrong in letting the cops scan the crowd of spectators at a fire, question any who seem to be getting a kick out of it, and investigate those who are single, unemployed, and drive a beater.  (This is an actual profile, by the way.  We didn’t make this up.)

And emotionally, profiling sounds wonderful.  Catching a psychopath is often difficult, because they don’t play by the same rules as the rest of us.  Wouldn’t it be nice if there were some, er, rules that we could follow — a formula of some kind — that would make it easier to identify and catch them?

As we said, in our early years we thought this was a great concept.  Whenever we encountered some findings that certain traits had been identified with this type of serial killer, or that type of terrorist, we thought it was fantastic.  But we didn’t think too critically about it.  And for sure we never bothered to look for the underlying data, much less examine the methodology used to determine how strongly these traits correlated with perpetrators of that crime.

The problem is, nobody else was doing that, either.

Profiling only works if the profile is accurate.  That should go without saying.  But it has become plain over the years that the various profiles out there are not accurate.  They are not based on actual data, but instead only on anecdotes.  (And as we like to say, the plural of “anecdote” is not “data.”)  Nor are these profiles based on any significant sample size.  No profiling study ever did even a simple regression analysis to determine whether any particular trait happens to be a meaningful variable.

We figured this out soon enough, of course.  After our first couple of years with the DA’s office, we were already joking about the silliness of profiles.  It was almost a party game to figure out which psychopathic profile we and our friends happened to fit (secure in the knowledge that hardly any of us were really psychopaths).

And the rest of the world soon caught on.  The Onion did a piece entitled “Crime Reporter Finds Way of Linking Warehouse Fire to Depraved Sex Act.”  Malcolm Gladwell wrote an outstanding piece in 2007 called “Dangerous Minds: Criminal Profiling Made Easy,” in which he solidly debunked the whole profiling scam, showing how there’s no science or statistics behind it, and even the data it’s based on is mostly useless.

It’s now fairly common knowledge that criminal profiling is about as useful as a Tarot deck.  So of course the FBI has stopped using it, right?

-=-=-=-=-

Wrong.

As a matter of fact, they’re expanding!  Just as the feds have (disastrously) tried to use street-crime investigative techniques like wiretaps to go after white-collar offenders, they are now (equally idiotically) starting to use criminal profiling to go after people for white-collar offenses.

Matthew Goldstein wrote an excellent piece on this for Reuters this week, called “From Hannibal Lecter to Bernie Madoff: FBI profilers famous for tracking serial killers are turning their attention to white collar felons.”  This (and the Gladwell piece linked to above) should be required reading for any white-collar defense lawyer now practicing.  When the Galleon case first came down, we were one of a handful of people doing white-collar defense who also had plenty of wiretap experience; now, of course, more of us are learning it the hard way.  Hopefully, with this new profiling issue, more of us will be prepared to deal with it ahead of time.  (And perhaps even nip it in the bud.  Like Barney Fife, we’re a big fan of bud-nipping.)

The agents in the FBI’s Behavioral Analysis Unit are the ones who profile serial killers and the like.  ”The hope is,” reports Goldstein, that they “can get into the minds of fraudsters and see what makes them tick.”

“This originally started out as an attempt to find a way to prevent and detect Ponzi schemes,” said Peter Grupe, the FBI’s assistant special agent in New York in charge of white collar investigations.  ”But it developed into something broader.”

The FBI’s profiling strategies are part of an aggressive new approach to financial crimes.  Facing widespread criticism over the lack of criminal cases stemming from the financial crisis, the FBI and federal prosecutors are keen on showing that they are not soft on white collar offenses.

Whoa!  Wait.  Let’s count how many things are wrong with just these few lines.

(1) They’re using profiling, which is not a reliable indicator in the first place.  And for which we would be willing to bet real money the feds have gathered very little actual psychological data, from a sample of offenders that is too small to be meaningful.

(2) They were just going to use profiling to catch Ponzi schemers, “but it developed into something broader.”  Whenever law enforcement says that phrase, it’s time to start screaming “no!”  It’s bad enough when the government says it in the first place, but when it’s that arm of the government that has the power to take away your liberty, property and reputation — to destroy your life almost at whim — only bad things can come of it.

(3) The feds are trying to create more white-collar cases for purely political reasons.  They sense some public pressure to prosecute people because of the financial crisis.  Ignoring the fact that the financial crisis was not caused by any, you know, crimes.  It was the result of stupid business decisions, stupid government actions, dramatic shifts in perceptions of liquidity, and banks shifting from lending to hoarding.  It may have exposed criminal conduct like Madoff’s, but it was not caused by criminal conduct.  Seeking to appease the masses with bread and circuses may have worked for Caligula (actually, it didn’t, did it), but it sure isn’t what the United States ought to stand for.  And it damn well isn’t an ethical or just exercise of the government’s authority.  In fact, it smacks of an offensive abuse.

(4) The feds want to show “they are not soft on white collar offenses,” not by actually catching actual criminals and convicting them, but by the functional equivalent of Captain Renault’s “round up the usual suspects.”  People who did nothing wrong are going to be rounded up, humiliated, their livelihoods destroyed, their savings spent and houses mortgaged to pay legal fees defending themselves against the might of the federal government.  Not because they did anything wrong, but because the feds have a new toy to play with.

(5) They’re using psychobabble to catch a “broader” array of white-collar types.  So apparently there are psychological markers for people who are more likely to commit insider trading, or fail to disclose bad news to shareholders, or take out a fraudulent loan, or swipe some money from the till?  Really?  They must be joking.  There are just too many kinds of people who wind up in these situations.  There is no “profile” of a white-collar offender any more than there is one for any other kind of theft or deceit.  People lie, cheat and steal for all kinds of reasons — and that’s all white-collar crime is.  So we guess the profile is anyone who hasn’t adopted West Point’s honor code as their own.  That really narrows it down, guys.  Nice job.

Don’t even get us started on the rest of what the FBI has to say for itself.  We don’t want this to turn into a rant.  But do read the rest of Goldstein’s article for yourself.

In the meantime, watch out.  Those Behavioral Analysis types might be looking at you.

Quite a few people have asked us about self defense, lately.  Must be something in the water.  Whatever the reason, it’s a question that a lot of people seem to be asking, so we figured we’d save ourselves from repeating the same conversation over and over, and just post the main points here.  (Of course, every state’s rules are different, but this is pretty much how it works.)

It’s really no different than the rules we gave our firstborn at the start of this school year, when he started coming home with tales of older kids trying to bully him.  (And by bullying, we don’t mean the modern usage, things like teasing or depriving one of self esteem.  We mean physically trying to injure our first-grader.)  Our rules were simple.  If some kid started bullying him, we said:

(1) Leave.  Go somewhere else.  If that’s impossible or they follow you, then…

(2) Get a teacher or some other grownup to stop it.  If that’s not working, and they really mean to hurt you, then…

(3) Hit first.  Hit hard.  And don’t stop hitting until they can’t hit you back any more.  There are no unfair moves.  Here’s some things you might try…

It seems to have worked.

Well, those are pretty much the rules that the law recognizes.  We didn’t think of it that way at the time, but those playground rules are the same rules we grownups are supposed to be playing by as well.  If someone’s trying to hurt you, then:

(1) Leave.  Go somewhere else.  (If you’re in your own home, then you don’t have to leave.  The law recognizes that it’s your last refuge.)

(2) If you can’t escape, then try to get the authorities to protect you.  (Yeah, we live in the real world too.  Fat chance.  But if it happens to be a possibility, then do it.)

(3) If that’s not going to work, then stop the attack.  Be reasonable — don’t use a gun if you’re not in mortal danger, but go ahead and use deadly force to save a life if you need to (and you can probably assume that someone breaking into your home poses a mortal threat).  The point is to stop the bad guy from doing bad things to you.  Whatever is necessary is, well, necessary.  Stop him.  Period.  Just don’t use more force than the situation calls for.  Don’t YOU be the bad guy.

If at any time you can escape, or get help, then of course go back to step 1 or 2.  That’s just common sense.

It’s really nothing more than avoiding overkill.  Be reasonable.  Nobody expects you to just let a bad guy hurt you or your loved ones.  But don’t go overboard.

Again, every state’s rules are slightly different.  But this is pretty much it.

If you were planning on writing in, we hope this answers your question.  (And if you have an actual real-life scenario, please call a lawyer where you live.  This ain’t legal advice.  It’s just a summary of the general rule.  Real life is not general.)

The blawgosphere was atwitter recently over that Kentucky murder trial where the defendant had confessed, but claimed it was a false confession, due to “sleep-deprived psychosis” from drinking too much coffee.  The jury didn’t buy it (here’s a short article on it).

Did that case remind anyone else of this short film?

It’s no secret that sleep deprivation does crazy things to the brain.  Among other things, it dramatically impairs judgment and cognition, and for this reason has for decades been seen as a highly effective interrogation tool by intelligence agencies around the world.  No matter how well trained, most people are simply going to break after a fairly short period of disorientation and sleep deprivation.  Of course, sleep deprivation also results in hallucinations, extreme discomfort, and memory problems — as well as increased suggestibility — making useful interrogation under such circumstances a job requiring the utmost care and attention.  It’s worse than dealing with a young child (as we all know, children are enormously suggestible, so that their statements can be manipulated unwittingly even by one’s body language and tone of voice).  It’s like questioning a child who is stressing from sheer confusion, and who is also in a hypnotic state.  Suffice it to say that the slightest error by the interrogator can produce completely unreliable results, or at best results that must be artfully interpreted to divine what’s more likely to be the truth.

Suffice it also to say that the vast majority of law enforcement officers do not conduct interrogations with such extreme care.  If any do.

So this this defense, in and of itself, isn’t as laughable as all that.  False confessions are a significant problem, the significance of which only grows larger with each new DNA exoneration.  If someone was in a state of sleep deprivation when he confessed, it would be worthwhile to figure out precisely how sleep-deprived he was, and what the interrogators said or did to elicit the confession.

The jurors came back pretty quickly with a guilty verdict.  There was other evidence, after all, tending to show guilt.  Nobody else was there, the defendant had been getting worked up over fear that his wife was going to leave him for a younger man, he was extremely jealous, on the day of the murder he picked up their kids from school and drove to his parents’ house sobbing that he thought his wife was dead… it wasn’t the weakest of cases.  But would the jury have convicted so quickly without testimony about the confession?

What is interesting about this case — at least according to the news reports out there — is that the sleep-deprivation thing was only used to negate the confession.  It wasn’t used as a “temporary insanity” defense to committing the crime itself.  He wasn’t saying “I did it, but I can’t be held responsible.”  He was saying “I didn’t do it, and I didn’t know what I was saying when I said I did it.”  That’s a pretty novel approach.

It didn’t work here, but it wouldn’t be surprising to see this sort of defense attempted in other cases down the road.  Given that cops tend to stop investigating the moment they get a confession, it’s easy to envision a case where the defense might even work.

The Supreme Court is back in session on Monday, and we’re not ashamed to admit that we’re excited.  As always.  And they’re starting off the argument season with a bang — a critical issue on federal sentencing of gun crimes.  Can’t wait.

The case is actually two cases, Abbott v. U.S. and Gould v. U.S.  The issue is just what the heck 18 U.S.C. § 924(c) means.

§ 924(c) says, if you’re convicted of possessing a gun during a narcotics crime, you get a 5-year minimum sentence, to be served consecutively.  Unless, that is, “a greater minimum sentence is otherwise provided by this subsection or any other law.”

Such straightforward language, and yet capable of so many different interpretations.  Is it written to make sure that you get at least 5 years if you carried a gun during a drug crime?  Or is the point to make sure that you get at least an extra 5 years, added to the original sentence?

Does it mean that, if you’re already facing a mandatory minimum greater than 5 years for the gun, then § 924(c) doesn’t even apply?

Does it mean that, if you’re already facing a mandatory minimum greater than 5 years for any crime, not just the gun, then § 924(c) doesn’t apply?

Does it only protect you if there’s another law imposing a greater sentence specifically for your violation of § 924(c)?

This is where statutory construction gets hairy.  Poorly-drafted statutes are not trifles.  Lives and liberty are at stake.  Just as with the horrible “honest services” law the Court dealt with last term, this is an example of those crafting the laws being unclear and uninformed about the very area of law they are affecting.  They either didn’t think it through, or they didn’t make the point clearly enough.  And thousands of people suffer as a result.

We don’t know the stats, but we’d estimate that thousands of people every year get sentenced under this section.  How many are doing 5 years too many?

We can’t wait to see what the answer is going to be.

A year and eight days ago, the Supreme Court took the unusual step of granting an “original writ,” and handed down a novel decision directing a federal court to revisit the murder conviction of Troy Anthony Davis by allowing Davis to put on evidence of actual innocence.  (See our original post on the decision here.)  Davis was convicted after trial of shooting a police officer to death in 1989.  He always claimed he was there, but didn’t shoot anyone.  Several witnesses said otherwise, and the jury found him guilty.  After some of the witnesses recanted, however, and evidence was discovered that indicated that the prosecution’s star witness was the real shooter, the issue of actual innocence was put into play.  With some serious debate among the Justices, the Supreme Court sent it back specifically for the district court to determine whether there was evidence not available at the trial would “clearly establish” his innocence.

Yesterday, the federal court finished hearing the evidence of actual innocence, and found nothing worth reversing the conviction.  “Mr. Davis vastly overstates the value of his evidence of innocence,” the court found.  ”Some of the evidence is not credible and would be disregarded by a reasonable juror. … Other evidence that Mr. Davis brought forward is too general to provide anything more than smoke and mirrors.”  You can read the CNN story here, and the decision itself here (part 1) and here (part 2).

“This court concludes that executing an innocent person would violate the Eighth Amendment (barring cruel and unusual punishment) of the U.S. Constitution,” ruled U.S. District Judge William T. Moore Jr.  “However, Mr. Davis is not innocent.”  Although the state’s case ”may not be ironclad, most reasonable jurors would again vote to convict Mr. Davis of officer MacPhail’s murder.”  Repeating a phrase, it went on “ultimately, while Mr. Davis’ new evidence casts some additional, minimal doubt on his conviction, it is largely smoke and mirrors,” Moore ruled. “The vast majority of the evidence at trial remains intact, and the new evidence is largely not credible or lacking in probative value.”

We’d be surprised if there wasn’t yet another appeal.  We’ll save you our rant on why this process is precisely why capital punishment doesn’t work.  If you’re interested, you can read it here.

On May 8, 2005, we were having a party.  It was our birthday, and our firstborn had just turned 1 a few days before, so it called for a big celebration with friends and family.  For us, it was a time of new beginnings.  But for Jerry Hobbs, May 8 2005 was the end.  He found his 8-year-old daughter and her 9-year-old friend brutally stabbed to death, in a park in Zion, Illinois.  He immediately called the police, who immediately made him their number-one suspect.  He’d just gotten out of jail in Texas, after all, so why investigate further?  He was subjected to a long, intense interrogation, and eventually made a statement that sounded like a confession.  He recanted the statement, saying it was coerced, but that didn’t matter, and he was charged with the murders.

Shortly after his interrogation, the police found DNA on the girls’ bodies that didn’t match Hobbs.  The DA discounted it, saying it must have been cross-contamination and couldn’t have been relevant to the crime.  But the DNA was in semen found on the girls’ bodies — and inside one girl’s vagina — and that’s not cross-contamination.  The DA insisted that it was still irrelevant, and that the semen must have been on the ground before the attack.  Seriously.  Hobbs remained in custody, charged with the double murder, for more than five years, though his case never went to trial.

He was in jail until a couple of hours ago, that is.  As it happens, that DNA on the girls’ bodies was extremely relevant.  Jorge Torrez, who had lived in Zion at the time, was arrested in Arlington, Virginia a few months back, and charged with the abduction and repeated rape of one woman as well as attacking another woman.  Virginia, unlike Illinois, takes DNA samples along with fingerprints when someone is arrested.  The DNA taken at Torrez’s arrest went into the database, and popped up as a match to the DNA found on the girls.  The Illinois prosecutors dithered for weeks, but this morning they finally released Hobbs from prison (though they refused to issue an apology, insisting they and the police had done everything right).  Still, an innocent man went free at last.

And if Torrez’s DNA had not been swabbed on arrest?  Hobbes’ coerced, false confession might well have resulted in yet another wrongful conviction.

This raises a lot of issues.  There’s the misuse of DNA evidence, and there’s the false confession, but those are topics for another time.  (If you’re interested in learning ways to defend such cases, you can check out our “Hope for Hopeless Cases” CLE series, particularly lectures IV and V.)

Today, however, our beef is with the civil liberties argument against taking DNA samples at arrest.

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The argument is that people who haven’t yet been convicted of a crime should not be compelled to give DNA samples.  It smacks of “Big Brother” and “Minority Report.”  The government might conceivably misuse the data.  It’s discriminatory, because blacks and Hispanics get arrested disproportionately more often, and so would be over-represented in the database.  The police might arrest people for bogus reasons, in the hope that cold cases might get solved.  It’s an unreasonable search.  It should require a court order.  It’s a penalty imposed on people who are still presumed innocent.  (See this Chicago Tribune article for these and other arguments being made.)

The speculative arguments are the easiest to deal with.  The police “might” make b.s. arrests and hope for the best?  That argument is foolish, even though it is well-founded.  The police do make b.s. arrests and hope for the best.  Happens all the time, whether or not DNA samples will be taken.  The mere fact that the police can and do abuse their authority is the civil-liberties problem here, not the reasons why they might do so.  The fact that the police can abuse something doesn’t make that thing inherently unconstitutional.  And as for the argument that the government “might” mis-use the information, that just shows an ignorance of the data actually being collected.  DNA samples are not being sequenced for their entire genome.  That takes forever and is prohibitively expensive.  All they do is run a standard test kit, which only looks at a handful of “noise” locations on the genome, and counts the number of times a sequence happens to repeat there.  No private data about the person is revealed or analyzed.  So there’s nothing for the government to really abuse.

The DNA data that is kept is fundamentally no different than the fingerprint data that automatically gets taken at arrest.  A handful of known locations are looked at, and what’s found there is what goes into the database.  We routinely fingerprint people at arrest, to see if there’s a match in the database to pending cases or open warrants, and to generate a rap sheet.  Nobody throws a hissy fit about it.  It’s generally accepted.  Few would take seriously an argument that fingerprinting arrestees violates their civil rights.

But doing the same thing with DNA?  ACLU attorney Michael Risher is quoted in that Chicago Tribune article as saying “it treats innocent Americans like convicted felons,” and somehow violates their Fourth Amendment rights, and at the very least should require a court order.

We defend people in court all the time.  We’ve been pretty successful dealing with DNA issues, we practice in a state that does not automatically take DNA samples, and we’ve fought hard to prevent the taking of any such samples from our clients.  But we just can’t buy the ACLU’s arguments here.  Taking DNA samples from arrestees doesn’t treat innocent people like convicted felons.  It is not a punishment.  No liberty is restricted.  No property is seized.  It’s an administrative task, nothing more.  As for the 4th Amendment issue, it’s no more violated than in any other post-arrest search, which can be a heck of a lot more invasive than the taking of fingerprints and an oral swab.

No, these arguments are just silly.  The potential for exoneration of the innocent, on the other hand, and the more certain identification of the guilty, are powerful considerations.  If all you’re going to weigh against them are silly arguments, you’re going to lose.

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There are valid concerns here, but they are not unique to DNA sampling.  They have to do with all the identification data taken on arrest — mug shots and fingerprints, names, addresses, dates of birth, not just DNA swabs.  The big issue is the risk of false identification.

Let’s say a cop nabs you for spitting on the sidewalk, and you aren’t carrying I.D., so he can’t just write a ticket but has to book you and fingerprint you.  Your mugshot is going to be in the system forever.  And eyewitness identifications being what they are, the odds aren’t bad that someone, somewhere down the road, is going to put her finger on your picture and swear that you’re the one who knocked her down and stole her purse.  It happens plenty.

And DNA evidence gets interpreted wrong all the time, too.  Evidence is handled poorly, technical errors happen in the lab, and bad conclusions are drawn.  So if your DNA is in the system, the odds just went way up that someone, somewhere down the road, is going to screw up and say your DNA was found at a crime scene.

But that doesn’t make the taking of your DNA swab a civil-liberties violation, any more than the taking of your mugshot.  It’s ancillary to the simple fact of life that getting arrested once dramatically increases your chances of being falsely identified later.

Are we fans of the idea of taking DNA samples at arrest?  Not really.  We’d prefer to limit it to those convicted of violent or sexual crimes — keep the database limited to people we’re pretty sure have already committed conduct of the sort where DNA evidence comes into play in the first place.  DNA evidence is not used to solve stock frauds, so there’s really no point to taking DNA off someone suspected of a white-collar offense.  We think it would be impractical and unnecessary to take DNA samples at most arrests.  But it wouldn’t be unconstitutional if states chose to do so.

So Jacki called the cops on her man.  She didn’t mean for him to go to jail, really.  But it was a stressful situation, and this was the best way she could think of to get back at him.  It felt great, and having the cops on her side — having the cops as a weapon — was totally empowering.

But enough’s enough.  He’s been locked up for a couple of weeks, now.  It wasn’t supposed to be like this.  And it’s really hard for Jacki, what with him being out of work this whole time, and not being around to help with the baby.  And he really didn’t do anything wrong… it’s just that, you know… she wasn’t thinking straight.  And now it’s time for her man to come home.

That should be easy enough.  All she needs to do is drop the charges, right?  She’ll just go over to the DA and say she doesn’t want to pursue the case. 

We imagine that something like this is what’s going on in Jacki’s mind:

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Unfortunately, real life is more like this:

(Excuse our hasty artwork.  We never were any good at cartooning.)

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Unless you actually practice criminal law, you probably have no idea how common this scenario is.  People get locked up all the time, not because they actually committed a crime, but because their significant other used the cops as a weapon.

What people don’t seem to realize is that the police do not have any discretion.  When you say someone beat you, or threatened to kill you, or whatever, the police must make an arrest.  They have no choice. 

And it’s no good you coming back the next day and trying to undo your terrible mistake.  You’ve set in motion a machine that you are powerless to stop. 

We see these kinds of cases far too often.  Non-criminal domestic disputes become swallowed up by the machine, which chews people up and spits them out — if they’re lucky — with permanent damage.

It’s not just women calling the cops on their men, of course.  It’s often neighbors calling cops on each other, or students making false allegations against a teacher, or any other kind of situation.  And once they’ve called the cops, there are no do-overs.

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Sometimes, it’s a cultural thing.  There really are people out there whose first reaction is to call the cops to solve their problems for them.  They live in a world where literally everything is done for them by the government.  So their first instinct in any situation is to get government involved.  You literally get moms calling the cops on their own kids for not cleaning their room.  Which escalates, when the cops refuse to get involved, to ever more serious accusations until the cops do get involved.  And then the mom calls sobbing, wondering why her baby is in jail.  To which the only rational answer is “because you put him there.”

But usually, it’s simply because the person who called the cops (1) felt comparatively powerless in the relationship, (2) figured calling the cops would be a big equalizer, (3) either didn’t understand what he or she was setting in motion, or didn’t think it through, and (4) over-reacted.

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So please, next time you’re thinking of calling the cops on your significant other:  Try actually thinking, first.  You’ll save yourself, and your loved ones, a lot of grief.

When we first moved to NYC in 1997, we thought we knew what racial tension was. After all, we’d grown up in various parts of the South and out West, and had seen and heard quite a lot of invidious prejudice. But we hadn’t seen anything, by comparison. We’d seen dislike and resentment out there, but the vitriolic race relations of the 50s and 60s had died down by our childhood in the 70s and 80s. We weren’t prepared at all for the outright hatred various groups expressed for each other in the grand metropolis. That first year here in the Manhattan DA’s office was an eye-opener. The city, especially the outer boroughs, seemed less like a melting pot than a petri dish, with virulent strains of hatred all fighting each other. Many working-class whites routinely used epithets one almost never heard in the South any more, and openly despised black people. Lots of black people hated white people right back, and seemed to have a bizarre animus towards jewish people, who we’d always thought of as champions of civil rights. African immigrants hated African-Americans, who they saw as lazy and as giving them a bad name. Every ethnic group seemed to have a derogatory name that everyone else used.

And this internecine feuding was still turning to violence in the ’90s. We’d never heard about the Howard Beach or Bensonhurst dramas of the late ‘80s, but here in the city that tension was still high. Al Sharpton hadn’t yet faded into irrelevance, and it seemed like he and his protestors spent half their time marching in circles somewhere or other. Right before we started at the DA’s office, the Abner Louima case happened, leading not only to renewed distrust of the NYPD, but even more racial tension. And just when that started to die down, the Amadou Diallo shooting flared it up again.

It was shocking to us. But to our friends who’d grown up here, it was just normal background. It was just the way things were.

So that’s what the culture was like in 1996, when a fight between some Italian men and a black man over a parking spot turned violent, the black man swung a baseball bat at an older Italian man, whose son — an off-duty cop — shot the black man to death.

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On October 3, 1996, in the suburb of Dobbs Ferry just north of the city, a black man named Charles Campbell parked his Corvette at a deli, in a spot reserved for deli customers. But he went into a different store across the street. When he came back, he saw the owner of the deli placing a sticker on the Corvette. Campbell got angry and started a fight. The deli owner, his son Richard DiGuglielmo (the off-duty cop), and a third man (Robert Errico, the cop’s brother-in-law) wound up fighting with Campbell.

The fight ended, and Campbell walked back to his Corvette. During the fight, his shirt had come off, and the deli owner brought it over to him while his son and the other man went back towards the deli. But then Campbell opened the back of the Corvette, grabbed a metal baseball bat, and kneecapped the old man with it.

The old man went after him to try to take the bat away, while his son ran into the deli to get a pistol. Campbell went to the other end of the parking lot, swinging at the old man with every step. By this time, the old man had taken a crack to the hand, as well. Several witnesses saw Campbell threatening with the bat, now, holding it in a stance like he was about to swing.

At that moment, DiGuglielmo ran up with the gun and shot Campbell three times, killing him.

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Two witnesses saw it from inside a truck parked right there. After the shooting, they made statements to the press and to the police that Campbell was still swinging the bat at the old man, had swung at his head, and was about to swing again when he got shot.

At trial, however, they testified differently, telling the jury only that Campbell was holding the bat in a batter’s stance, but was not swinging the bat, when DiGuglielmo shot him.

The trial was a mess. The local district attorney, Jeanine Pirro, was a publicity hound (and more than a bit of an embarrassment to those of us in other DA’s offices), and tried the case in the press, basically calling this a hate crime and accusing the DiGuglielmos of being racist. She dearly wanted to get a cop convicted here. After the defense rested, the prosecution figured out that they weren’t going to win on the charge of intentional murder, and switched their theory to “depraved indifference” to children who were on the street near the deli.

Forgetting that the prosecution’s job is to prove what really happened, and not plead in the alternative two different ways it might have happened, they asked for both theories to be presented to the jury as alternatives. The jury threw them a bone, convicting DiGuglielmo of depraved-indifference murder, not realizing that it carries the same penalties as intentional murder. DiGuglielmo got 20 years to life, for defending his father.

The appeals were a mess, too. We’ll spare you the details.

Fast-forward to 2006. The two key witnesses from the trial, who had witnessed the events from their truck, had now come forward with evidence that they had been pressured by the police to change their stories, during a course of police interrogation in the days following the shooting.

This was clearly new evidence that would have had a big impact on what the jury would have thought. And it was certainly evidence helpful to the defense that had not been disclosed by the People. So at the very least there was a clear Brady violation. And maybe it counted as newly-discovered evidence that would have resulted in a more favorable verdict.

So DiGuglielmo filed a CPL 440.10 motion to vacate the conviction. The court, to its credit, found this to be the right kind of newly-discovered evidence, and certainly Brady material.

In a detailed, 69-page decision, Judge Bellantoni vacated the conviction, and on September 19, 2008, DiGuglielmo was released from prison.

The DA’s office appealed.

This week, DiGuglielmo was ordered back to prison.

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What happened?

What happened is, the Appellate Division screwed up. You can read the opinion here, and see for yourself.

It’s a horrible decision, and we’re frankly surprised that it made it out of the draft stage in this form.

Here’s the logic, in a nutshell:

(1) Based on the testimony at trial, the jury must have concluded that the father was being the aggressor, and that the victim was backing away, and most importantly that the victim was not swinging at his head.

(2) The new evidence contradicts those conclusions. The new evidence is that the men in the truck saw the victim swinging at the father’s head, and was about to do so again. The new evidence is that they made multiple statements to that effect on the day of the shooting, but only changed their stories after several days of police pressure to do so.

(3) Because the new evidence is contrary to what the jury concluded, it must be something the jury didn’t believe. Therefore, the jury wouldn’t have believed this new evidence. And so the new evidence wouldn’t have changed the jury’s mind.

That’s circular reasoning. The jury didn’t believe the victim was about to take a swing at the old man. Therefore, the jury wouldn’t have believed evidence to the contrary. So it wouldn’t have made a different to introduce such evidence.

And how is that not Brady, at the very least?

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And compare this brief, careless decision with the more lengthy one below. Say what you will about it, Judge Bellantoni’s decision is not lacking in analysis of the law and the facts. And he clearly made every effort to do it right.

The judiciary must not take on the coloration of whatever may be popular at the moment. We are the guardian of rights, and we have to tell people things they often do not like to hear.” – Hon. Rose E. Bird. Our oath requires that we make the right decisions, even if difficult and unpopular. It must be stated that this Court, in its above discussions and ultimately, its decision in this case, certainly does not intend to disrespect the memory of Charles Campbell or the Campbell family. This decision was not made lightly. Indeed, for the past two years, the Court has struggled with, and considered, all of the arguments and positions connected with the issues in this case and it’s ruling is consistent with the undercurrent of the criminal justice system – that where an injustice has occurred, all benefit of the doubt, consistent with current case law and precedent, must be afforded an accused. Thus, for the factual and legal reasons stated above, this result is mandated by the principles of justice.

(Decision and Order, Sept. 17, 2008 at 67.)

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And it’s just a slap in the face for the Appellate Division to cite to People v. Tankleff, 49 A.D.3d 160, 180-181, in support of its decision here. In Tankleff, the defendant showed there was a reasonable probability that, had all of the new witnesses testified at trial, the outcome would have been different, and the Appellate Division granted Tankleff a new trial. Here, the same thing happened. So at a minimum DiGuglielmo ought to have been awarded a new trial.

Instead, the court simply sent him back to prison, without even giving a jury the opportunity to evaluate all of the new and old evidence and witnesses.

This decision sends an awful and disturbing message: Innocence is irrelevant.

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This week’s decision is one of the biggest screwups we’ve seen in a long time. And the result is tragic.

Think about it. The man was wrongly convicted in the first place, after a show trial making him a scapegoat of the racial politics of the day. He spent 11 years in prison, unjustly. But then justice finally prevailed, and he got his freedom back. He got to return to life and his family. And then, with a callous stroke of the pen, a badly-reasoned decision rips him away from that cherished freedom, and tosses him back into prison.

Going in the first time was bad enough. We can’t imagine how much worse it must be this time.

Badly done, Appellate Division.

[Our paralegal, Marty Tankleff (no stranger to unjust convictions himself) contributed to this piece.]