Tuesday, August 3, 2010

Ignorance of the Law is Bliss -- For Prosecutors

[Update, Tuesday, August 3, 8:55 PM]: It is official, now. In Catoosa County, it is not a crime to assault someone (using racial slurs) even while being videotaped, but one can be charged for crimes that never happened. WRCB-TV reports that the assault charges that Eric Echols filed against Sandra Lamb have been dismissed, although no reason has been given for the dismissal.

However, felony charges against Mr. Echols remain, even though the state has no witnesses and all of its "evidence" has been publicly shown to be false. All of this is what the ancients once called "corruption." [End Update]

In his crime column this week for Reason, Radley Balko (who featured the Tonya Craft case on his blog) writes that there are two standards for Americans. Ordinary people who generally are not trained in law and who don't have the time to read every law book and every statute are expected to know everything about the law, and if they are ignorant of it, as judges have declared, that is "no excuse."

However, there are three groups of people who do have to worry about being sanctioned for not knowing the laws or for misinterpreting them: the people who have been trained in law and who work as police officers, prosecutors, and judges. That is right; the people who enforce and administer the law in the USA are permitted to be ignorant of those very laws, and even if their ignorance is tragic, they are fully and absolutely protected from bearing any consequences whatsoever.

Do you believe I am kidding? Balko writes:
As citizens, we're expected to know and obey all of these laws, in addition to state and local statutes and the relevant court opinions that interpret the breadth and depth of all of those laws.

But what happens when law enforcement officials don't know the law? What happens when they illegally detain, arrest, and charge you even though you've done nothing wrong? Unlike you, their ignorance doesn't result in arrest or jail. And unless the violation is pretty egregious, they're unlikely to be punished for it.

Consider the case of Brian Kelly. On May 24, 2007, Kelly was riding with a friend in the town of Carlisle, Pennsylvania. Officer David Rogers of the Carlisle Police Department pulled Kelly's friend over for speeding. Rogers told the two that the traffic stop was being recorded with a microphone attached to his uniform. Kelly, who had a video camera with him, began recording the stop as well. When Rogers returned from writing a ticket, he noticed Kelly's camera. Rogers demanded Kelly turn the camera off and hand it over to him. Kelly complied.

Rogers then returned to his car and called John Birbeck, an assistant district attorney in Cumberland County. Rogers asked Birbeck if Kelly's recording violated Pennsylvania's wiretapping law. Birbeck incorrectly told him it did. Rogers then called in back-up officers and placed Kelly under arrest. During the arrest, Rogers "bumped" (the term Kelly used in his lawsuit) Kelly, causing a staple from a rugby injury to rupture, causing Kelly's leg to bleed. Kelly spent the night in jail. He was eventually charged with a felony punishable by up to seven years in prison. Cumberland County District Attorney David Freed would later tell the Patriot-News that while he sympathized with Kelly not being aware that what he did was illegal, and that he might (graciously!) allow Kelly to plead to a misdemeanor, "Obviously, ignorance of the law is no defense."

Here's the problem: Freed was the one who was ignorant of the law. So was Birbeck. And so was Rogers. The Pennsylvania Supreme Court ruled in 1989 that recording on-duty public officials is not a violation of the state's wiretapping law because public officials have no legitimate expectation of privacy while they're on the job. The order for Kelly to stop videotaping was illegal. So was Kelly's arrest and his incarceration. Freed eventually dropped all charges.

Kelly filed a civil rights lawsuit against Rogers and the town of Carlisle. In May of last year, Federal District Court Judge Yvette Kane dismissed Kelly's suit. The reason? As a police officer, Rogers is protected by the doctrine of qualified immunity. In order to even get his case in front of a jury, Kelly has to show that Rogers (a) violated Kelly's civil rights, and (b) the rights Rogers violated have been clearly established. Even if Kelly can meet those two burdens, he must also show that Roger's actions in violating Kelly's rights were unreasonable.

So it isn't enough that the police are wrong about the law. They have to be very obviously wrong for you to collect any damages from a wrongful arrest.

Kane found that because Rogers sought advice from the local prosecutor's office it was reasonable for him to act on that advice, even if the advice happened to be wrong on the law. Moreover, Kane found that because the federal appeals courts have yet to find a specific right to make audio recordings of police, that right is not yet clearly established. Kelly is appealing.

Suing Birbeck isn't likely an option for Kelly, either. Prosecutors enjoy an even stronger protection called absolute immunity. Under absolute immunity, there is virtually nothing a prosecutor can do in the course of his job that would subject him to a lawsuit.

The contradiction couldn't be starker. Kelly, a citizen who neither works in law enforcement nor has been to law school, was arrested, jailed, and charged with a felony for not knowing that an antiquated law pertaining to wiretapping prevented him from using a wireless video camera to record a traffic stop that the police officer himself was recording. Even if Kelly had broken the law, at worst he made a recording of Rogers without Rogers' consent in addition to the recording Rogers was already making. Rogers wasn't harmed at all. And for that, Kelly could have gone to prison for seven years.

On the other hand, Freed, Birbeck and Rogers are all paid by taxpayers to know and enforce the law. Freed and Birbeck presumably went to law school, and presumably passed the Pennsylvania bar exam. Knowing the state's criminal code and the court decisions that affect it is a fairly integral part of their jobs. The harm caused by their ignorance of the law is far from insignificant: A man was wrongly arrested, detained, and jailed. His First Amendment rights were violated. And he was injured in the course of his arrest. Yet they won't be going to jail. In fact, they're unlikely to be sanctioned or punished at all.
It gets worse. Police around the country regularly arrest people who legally take videos of arrests or take pictures in places like the D.C. Metro stations, even though the courts have ruled those arrests are illegal.

I believe that we have a legal crisis in this country, and believe that our situation nearly is hopeless. The reason goes back to Murray Rothbard's contention that in monopoly situations, ultimately the employees themselves capture the organizations. (This is different than "Regulatory Capture Theory" in which private organizations that are regulated by government agencies ultimately are supposed to "capture" the regulatory apparatus.)

For example, the most powerful force within public education is the National Education Association, which is the biggest teachers' union. I would hold that in the "justice" system of this country, the employees -- and especially the "civil servants" and appointees, such as the associate district attorneys (ADAs) like "Alberto-Facebook" Arnt and "The Man" Gregor tend to run the show, and they ultimately are able to manipulate the situation, with the help of judges and politicians, to gain immunity, which ultimately corrupts the system.

People who do not have to be accountable for their actions are not going to do the right thing over time. Even people who claim to be guided by a moral -- or religious -- compass ultimately will pull stunts in order to win cases.

Take Tim "Dirty" Deal, for example. I recently saw his Facebook page and on it he claims to be "pro-life" and "Christian," yet he was willing to fabricate a document in order to help prosecutors suborn perjury from Sandra Lamb, Suzi Thorne, and others. Why did he do that? He wanted to win, and he knew that he would face no consequences from the law because politicians, prosecutors, and judges are protecting him.

Every day, prosecutors lie in court and their bring witnesses they know are lying. Judges sign off on the whole thing, and the only people who are injured are the innocent.

A "justice" system that does this is the same kind of "justice" system that requires those with the least expertise of the law to be most knowledgeable of it, while those who are trained in law and who work for the government are not required to know anything at all. That is a prescription for tyranny, and while I can do nothing about it, I will continue to speak out until the authorities silence me.

23 comments:

Anonymous said...

It is horrifying to know that it is now a crime to record police in action and there is no justice for the innocent.

I saw a story about a motorcyclist (I believe in MD), who had a camera on his helmet. A plain clothes detective stopped him (due to reckless driving) with his weapon drawn. The kid is facing bigger charges (wiretapping) just for the camera. The wiretapping came up after the kid posted the video of the cop on youtube.

I also believe that some states have actually passed laws making it illegal to videotape a police officer on duty. They claim it is to protect the officer because he may not act quickly enough for fear of the video and how their actions will be perceived.

Unfortunately, the American people will only wake up after they finally notice their freedoms have been taken away completely.

jp said...

“That is a prescription for tyranny, and while I can do nothing about it, I will continue to speak out until the authorities silence me.”

Excellent (and depressing) post Bill.

Thanks to good folks like you and Balko, Grigg, Hornberger, Rockwell, Woods, and on and on… you are doing far more than nothing!

I like to think us citizen/serfs are slowly becoming awakened. The “green shoots” are there if you keep an eye out…

http://www.dailycamera.com/ci_15622794?source=rss_viewed

Doc Ellis said...

Greetings Dr Anderson,

I have linked this to my
BikerorNot blog line at http://www.bikerornot.com/docellis124
and I tweeted this to
Facebook at http://www.facebook.com/docellis124 , to
MySpace at http://www.myspace.com/docellis124, and to
LinkedIn at http://www.linkedin.com/in/docellis124  
Thank you for writing this

Doc Ellis 124

Michael McNutt said...

Tyranny needs to be fought, its time for folks to fight back from police and courts that are killing and throwing whoever they like in jail. The authorities can't silence all of us or our guns...

Kaye said...

Tyranny might need to be fought, but don't count on the residents of Catoosa County to be the ones to do that; we had an 11%, yes that's ELEVEN percent, turnout during our primaries. If the residents won't bother to do something as simple as casting a vote, then I doubt that they'd bother to show up for anything that requires any more effort.

Justing throwing my 2 cynical cents in there...

Trish said...

My son finally goes to court today, please keep him and our family in your prayers!!!

Mary Jane said...

Trish,

Your son and your family are always in my prayer.

Jerri Lynn Ward said...

Kaye,

One important thing to remember is that majorities never accomplish anything. The key to change is small groups WHO CONTINUALLY SHOW UP. Showing up will confer power upon you that is beyond your numbers.

The small number of people who will even notice things like this need to find each other and object to things like this. Form an activist group.

We did in my town and now the media and politicos think we have more clout than our numbers would suggest.

Anonymous said...

Is the Sandra Lamb video on YouTube yet? You guys should really get it up there.

Anonymous said...

can he refile charges

Anonymous said...

The elections that will make a difference will be coming up in 2012. The 11% turnout was at the primaries for District 53 that include only a small part of Catoosa County. Most were incumbents running unopposed, not many people show up for those elections anywhere.

John

Anonymous said...

How is it more of a crime for me to video a cop acting a fool, than for that same cop to video his stop of me, or his recording of the incident? What it boils down to is the cops are afraid of their actions being video taped, and the law suits that come with it when they act inappropriately. (ie Rodney King) GA State Troopers all have video and recording devices in their car and on their person, and those very tapes used without the permission of the alleged perpetrator are used by them in court every day.

Anonymous said...

Absolutely unbelievable!!! Mr. Echols HAS UNDISPUTABLE EVIDENCE against Sandra Lamb yet the charges against her are dropped???She blatantly assaulted him!!Hold on to your lugnuts!!!I feel a 'ripple in the force Luke'.

Anonymous said...

Wake up, this happens every day.

http://blog.simplejustice.us/2010/08/04/a-taser-in-the-hands-of-a-moron.aspx

Anonymous said...

I work in a jurisdiction close to the LMJC and have had an opportunity to testify in court there. I've also talked with Det. Deal about this allegation: "yet he was willing to fabricate a document". This is an outright lie. It's easy to throw this allegation out there without corroboration. It's as proposterous as the allegation that there was an audio feed for the state's witnesses. This has never happened in any case I've been involved with.

William L. Anderson said...

Excuse me. This document did not exist until the "hand rape" allegation and Suzi Thorne's testimony. It was nowhere to be seen, and suddenly, it magically appeared.

Furthermore, the defense asked Brian House to let them check the computer on which the document was prepared to see when it was prepared, and to have the ink dated to see if it had been prepared recently.

House refused both requests.

So, don't tell me I am lying. If the prosecution and Tim Deal were so sure that their document was authentic, they would not have resisted any checking to make sure.

If you have ties to the LMJC, then why should I ever believe anything you say? The witnesses -- people with whom Deal was associated -- lied on the stand, and you and the prosecutors knew they were lying.

Yeah, I am sure Tim Deal would tell you, "Yes, I fabricated the document." If Deal was so confident that he was telling the truth, why did he resist having the defense check his computer?

You know something else? It is easy to throw out an allegation of child molestation. Oh, and if Deal is such a great detective, why didn't he check Tonya's house and her computers for porn and other things that would have been a sign of a child molester? Yeah, great investigator.

No, I am sticking by my allegation that he fabricated that document during the trial. If he wants to take me to court over that, then he will be doing it as a private citizen with no immunity. There will be a line of lawyers begging to get him in a deposition -- where, no doubt, he would then commit perjury.

Is there an honest cop anywhere in the LMJC or North Georgia? Is there anyone in that system who is honest?

Throckmorton P. Gildersleeve said...

Hey, Anonymous 10:28:

If you are stupid enough to believe anything that "Detective" Crooked Deal spews from his pie hole, then I want to sell you some of that prime vacant commercial property across the street from the adult theater on Rossville Blvd.

Let me clarify the issues for you. Deal lied. Deal committed perjury. Deal fabricated the documents describing the "hand rape" incident. Either that, or, to paraphrase a famous Marine drill SGT, God miracled them into the persecution's files. If you are associated with Ali House and the 40 Thieves of the LMJC, then you are part of the problem and have as much credibility as they do. You cannot establish corroboration when Judge Out House refuses to let you.

Begone ye Troll! Crawl back under your rock that rests next to the LMJC.

Victoria said...

Begone ye troll! he he, pretty funny! Yeah, like Deal is going to admit that he cooked up the whole scheme. Thick as thieves are these gov't thugs.

Though things have gotten so bad with the government, justice system,and the media it gives me one hope - that they are so corrupt and deluded and drunk on power that they are losing all respect from and control over the public. The plebians are coming to see the rulers in the same terms the soviet public viewed their government and Pravda - a total parody. Look what happened to Soviet Russia in short order from their economic crisis...the unthinkable may not be long coming upon us. And while I fear the worst from that unrest I also hope for the best to come of it.

KC Sprayberry said...

Yes, Bill, there was a good cop that I knew in LMJC, but he retired recently because he could no longer stand for all the corruption going on. Did he say anything? Well, he needed his paycheck but more, he worked hard to keep kids out of trouble. This man did his job well and when he testified, stuck to the truth without varnishing it. But, as the saying goes, all good deeds will be punished. He and his wife are expecting twins in their golden years, after years of childlessness. At least, he has no worries about having to participate in this system any longer as he teaches his own children to do right, but parents around here mourn his retirement as their children toed the line with him around.

Anonymous said...

More jack booted thugs:
http://www.time.com/time/nation/article/0,8599,2008566,00.html

Anonymous said...

In regards to your update @ Eric Echols, I hope he brings this to national attention and brings the spotlight back to our county. They need their names dragged thru the mud again!! As much as I would hate to see our county appear to be racist. He is being wronged!!! I just hope everyone remembers they are a chosen group, not everyone in this county is racist.

Anonymous said...

With Regards to honest Police Officers within the confines of the LMJC, One only has to look at the LaFayette Police Department. Stacy Meeks is a good man, an Honest Man, and a good officer. In fact, there are several officers within just the LaFayette PD that are stand up. D. Kelly is one as well. These guys truly grip the expectations that we all have of what an honest police officer are. Walker County Sheriff's Department have some good officers as well. But there are some bad apples in that cart too. I know Steve Wilson personally. I have campaigned for him, and I have campaigned for his opponents over the years. All in All, I believe he finds his job a true calling, and he is as professional as they come.
Oh, and I am a Tonya Craft supporter. So don't think me a troll. I don't live under a bridge. LOL!!!

Anonymous said...

Mary Jane, thank you, we have to go back later this month.