Monday, July 12, 2021

Wives can think for themselves? Who knew!

A drug dealer sends his supplier to pick up a box of cash from the dealer's wife. Can we assume without more that the dealer was his wife's "manager or supervisor," U.S.S.G. § 3B1.1(b), or that he "used . . . affection" to involve her in his drug crimes, U.S.S.G. § 2D1.1(b)(16)(A)?

Of course not. This is the twenty-first century. C'mon people.

See United States v. Sampel2021 WL 2793548 (2d Cir. July 6, 2021) ("Evidence that Sampel told a person to pick up money from his wife does not establish that Sampel “exercised [any] degree of control” over her . . . or that he in any way directed her involvement in the drug business. Likewise, this evidence does not support the conclusion that Sampel used affection to involve his wife in the crimes at issue. Simply put, more is needed.") (reversing and remanding for resentencing).

See also State v. Donkers, 867 N.E.2d 903, 939 (Ohio App. 2007) ("In today's society, regardless of what individual couples believe and practice, the law does not recognize the husband as the 'one public voice' or as the automatic head of household with supreme authority over his nonresponsible feme covert."); United States v. De Quilfeldt, 5 F. 276, 278 (C.C.W.D. Tenn. 1881) ("It is almost an absurdity in this day to pretend that husbands can or do coerce their wives into the commission of crimes . . . ; but to hold it to be presumed as a fact, in all cases where the husband is present, is the relic of a belief in the ignorance and pusillanimity of women which is not, and perhaps never was, well founded, and does them no credit."); but see Gray v. State, 527 P.2d 338 (Okla. Crim. App. 1674 1974) (noting "general rule that a wife committing a crime is presumed to have acted under her husband's coercion" if the husband is physically present at the time of the crime).

Tuesday, July 6, 2021

The Fourth Amendment: "a bastion of liberty in a digitizing world"

Accessing stored data from Baltimore's experimental panopticon-like aerial surveillance program is a search for Fourth Amendment purposes, and can't be done without a warrant. So said the en banc Fourth Circuit in Leaders of a Beautiful Struggle v. Baltimore Police Department.

Read Leaders of a Beautiful Struggle for a full description of Baltimore's now-abandoned "citywide prolonged surveillance campaign," which captured massive amounts of data in the form of aerial images that could be magnified to a point where people and cars were visible (only as blurred dots and blobs, but trackable nonetheless). Adding to the Big Brother factor, this data could be integrated with other data (license plate readers, gunshot detectors, etc.) to identify those dots and blogs and glean insight into the whole of an individual's movements.

Read Leaders of a Beautiful Struggle as well for the majority's discussion of the disparate impact of large-scale surveillance on vulnerable communities:

Baltimore is a thoroughly surveilled city. See generally J. Cavanaugh Simpson & Ron Cassie, Under Watch, Balt. Mag., Mar. 2021, at 96 (discussing cell site simulators, helicopters, security cameras, police access to residential cameras, police body cameras, and facial recognition software). “[Mass surveillance] touches everyone, but its hand is heaviest in communities already disadvantaged by their poverty, race, religion, ethnicity, and immigration status.” Barton Gellman & Sam Adler-Bell, Century Found., The Disparate Impact of Surveillance 2 (2017). While technology “allow[s] government watchers to remain unobtrusive,” the impact of surveillance “[is] conspicuous in the lives of those least empowered to object.” Id. Because those communities are over-surveilled, they tend to be over-policed, resulting in inflated arrest rates and increased exposure to incidents of police violence.

That is not to express our opposition to innovation in policing or the use of technology to advance public safety. It is only to emphasize that the role of the warrant requirement remains unchanged as new search capabilities arise. . . . The Fourth Amendment must remain a bastion of liberty in a digitizing world.

Finally, read the concurring and dissenting opinions in Leaders of a Beautiful Struggle for a fascinating debate about who gets to speak for "the community";  how Baltimore is both overpoliced and underpoliced; and whether more policing is the answer to violence.

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Monday, July 5, 2021

Fallacious comforts and reasonable doubt

Before you get up in the morning, do you ask yourself whether doing so is worth the risk? More specifically, do you question whether it is safe beyond a reasonable doubt to get out of bed? When you eat a meal, do you first assure yourself, beyond a reasonable doubt, that the food on your plate will not make you sick? Do you evaluate the risks of driving every time you get behind the wheel of your car?

Surely not. And that is because our decisions to engage in everyday tasks "rest on the fallacious comfort that because these activities did not result in chaos yesterday, they will not today." This fallacy is necessary to navigate the world. But it is not a fallacy we want jurors to indulge when they decide whether a person has committed a crime.

And that is why last month the Ninth Circuit reversed two drug-importation convictions in United States v. Velazquez. During closing arguments in Velazquez, the prosecutor assured the jurors that reasonable doubt is "something you use every single day in your life," offering as examples getting up, eating a meal, and driving a car, even though it's possible that you might get sick or have an accident. But, as the Ninth Circuit explained, "[s]uch decisions involve a kind of casual judgment that is so ordinary and so mundane that it hardly matches our demand for 'near certitude' of guilt before attaching criminal culpability."

The prosecutor's argument was inappropriate, misleading, and reduced the government's burden of proof. "The process of adjudicating guilt is a major and meticulous undertaking. People do not, 'every single day,' bear the solemn task of examining evidence and determining an accused's guilt. The comparison—to reflexive, quotidian decisions like 'getting up,' 'having a meal,' and 'travel[ing] to ... court'—is flagrant and seriously distorts the standard." 

Going to trial any time soon? Listen carefully to how the government talks about reasonable doubt. Object. Ask for a curative instruction. The reasonable-doubt standard is indispensable. Don't let the government dilute it.