A misconception of justice

One of the most common misconceptions of our criminal (in)justice system is that it's designed to mete out justice to both the citizen accused and the alleged victim.

Every time a police officer kills an unarmed black man we see signs demanding "justice" for the dead man. We hear crowds chanting "No justice, no peace!" We see interviews with grieving friends and family members calling out for justice for their loved one.

And while I am sympathetic to the pleas and to the tone of the requests, they are wholly misguided.

If you're seeking justice for a wrong committed by another person or institution, your proper remedy is found in the courthouse -- but on the civil side. That's what our civil courts are designed to do - to determine who's at fault for someone's injury to and award a cash judgment.

The criminal (in)justice system is designed to see that the accused receives a fair trial and that the defendant's rights under the Bill of Rights are protected while the state attempts to take his liberty away from him. At the end of the day the only thing a judge or jury can do is determine whether the state has proven its case beyond a reasonable doubt. The only remedy the criminal court can offer is to restrict the defendant's liberty.

MADD is upset that Ethan Couch, the so-called victim of "affluenza" is being released from the Tarrant County Jail after cooling his heels for the past two years. Colleen Sheehy-Church, the president of MADD, claims the release of Mr. Couch is a "grave injustice" for his victims.

Sorry, ma'am, none of what goes on in a criminal court has anything to do with what you refer to as justice for the victim. Oh sure, the prosecutor will bring up the wishes of the victims (so long as they are in line with the DA's wishes), and the judge will bring it up during sentencing, but a criminal court is not capable of handing out justice to anyone other than the accused (if even that).

It is an ugly reality money can't compensate for the most of the harms we face. But that is all we have in our court system. Civil courts do have the power to order a person or company to do certain things - or to refrain from them - but that doesn't always make up for the harm one suffered.

I'm sorry for the loss the families of the victims suffered. There will forever be a hole in their lives - a hole that can never be refilled. But locking someone up behind bars for longer than the sentence requires isn't justice. There is also the fact that Mr. Couch was a teen when he got drunk and caused an accident that killed four people. That's not an excuse - but it is a mitigating factor.

Unfortunately state legislatures are only too eager to court those who think the criminal courts ignore the victims of crime so we have bad law upon bad law that create so-called victim's bill of rights and place draconian bond conditions on those merely accused of committing a crime.

When victim's advocates stomp and scream about justice what they are really saying is that the accused should receive a harsh sentence with no consideration of mitigating factors or the need for treatment or counseling. Their solution is always to lock more people up for longer periods of time.

That's not justice. It's retaliation.

To the batcave, Robin

Stop me if you've heard this one before - the Houston Police Department, along with the Harris County DA's Office and MADD announced a new initiative aimed at combating that bogeyman of bogeyman - drunk driving.

The Houston Police Department's latest state-of-the-art weapon to combat drunk driving.

This time the state's weapon of choice is the BATmobile. The breath alcohol testing vehicle contains an intoxiliar machine so that the police can offer breath tests to motorists arrested for DWI on the spot. Note that I didn't say motorists suspected of driving while intoxicated. That's because in Texas, in order for a breath test to be admissible, the motorist must be under arrest at the time the officer requests a breath sample.

The breath test machine is, if you listen to prosecutors and officers, a scientific "instrument" designed to detect the alcohol concentration in someone's blood -- based on how much alcohol is in their breath. Like many sci-fi shows, you have to suspend reality to understand how this modern day relic of the alchemists works.

I don't know too many scientific instruments that labs keep in rooms such as the intox video rooms at HPD. I've always thought scientific instruments should be kept in pristine labs that are kept clean of all contaminants so that the measurements taken are as accurate as possible. But maybe that's just me.

These breath test machines are maintained by the Knights Templar of the police state -- DPS licensed technical supervisors who are supposed to perform regular maintenance on the machines and testify in court that everything is hunky-dory with the machine. But how much testing is performed to determine whether moving the machine from location to location affects its ability to do whatever the hell it's supposed to do? How much testing is performed to determine if the communications systems in the BATmobiles interferes with the machine's innards? How much testing is performed to determine if the machines are affected by the ambient air both inside the van and outside in the real world? More importantly, has the (pseudo)scientific director of the DPS approved this new initiative?

Two strikes and you're out

How does a permanent license revocation for a second DWI conviction sound to you?

State Sen. Jane Nelson (R-Flower Mound) has filed SB231 that would revoke a motorist's license permanently upon a second conviction for driving while intoxicated. I guess Ms. Nelson somehow thinks that just because a person doesn't have a driver's license they won't get behind the wheel of a car. I don't know what planet she's from because where I live, the lack of a valid license has never stopped anyone.

Thinking practically (something our esteemed members of the legislature are not paid to do) about the proposal, how would these folks get back and forth to work? Would they be eligible for a permanently restricted license? Would they have to continue going back to court periodically to renew that license? Or is the legislature planning on funding mass transit programs in every town, city and county in the state so that people can get around in a reasonable manner without relying on their cars?

You know a proposal dealing with drunk driving is nutty when even MADD is against it.

“I don’t think this bill is going anywhere. It’s one of those make-you-feel-good types of bills, but it doesn’t stop drunk driving, People who lose their driver’s license are still going to drive ... they will be more careful after losing their licenses but they are still going to drive.” -- Bill Lewis, MADD public policy liaison

Legislating away your reasonable expectation of privacy

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. - 4th Amendment

And just what constitutes an "unreasonable" search or seizure. According to the US Supreme Court it comes down to whether one has a "reasonable expectation of privacy" in a given situation. Being in your home is different from being at the ballpark. Being in your backyard may be different than being at the zoo. Since we now have no reasonable expectation of privacy at the airport, there is no such thing as a unreasonable search (thank you, President Bush and members of Congress looking for any excuse to attack civil liberties).

And now come the zealots seeking to brand more motorists with the scarlet D. Lt. Scott Bratcher of the Dallas Police Department (apparently sending a police chief whose son shot and killed an area lawman is a faux pas) and Dallas County Commissioner Kenneth Mayfield asked the legislature to allow police to set up DWI roadblocks -- even though such measures have been defeated numerous times due to legislators' concerns about the thousands of "innocent" drivers who would be inconvenienced.

As an interesting aside, according to the Dallas Morning News, the witnesses who testified before Sen. John Whitmire's committee included law enforcement officials, judges and "victims." Apparently no one care enough to ask to hear from defense attorneys or drivers who were either acquitted or had their cases dismissed.

The police would like to do away with that pesky little requirement that they have reasonable suspicion to stop a motorist or probable cause to arrest a motorist before they can subject them to roadside calisthenics and forcible blood draws.

Bill Lewis, the head of MADD, was unmoved by concerns that roadblocks would subject motorists to unreasonable searches. According to Mr. Lewis' vision of the world, since we are already subject to being searched at airports and the state capitol, that we all should sacrifice our right to privacy and allow ourselves to be subjected to unwarranted searches and seizures while driving on the highway.

Bill Lewis of Mothers Against Drunk Driving said innocent citizens already are subjected to searches, such as when they enter the airport and, in a more recent development, at the Capitol.

"I've never tried to sneak a gun through the Capitol or an airport, but I have to go through a checkpoint," Lewis said.

Others said they would like to see No Refusal Weekends expanded so that more judges will blindly sign search warrants authorizing forcible blood draws without questioning either the need for the motorist's blood or the probable cause behind the arrest.

Hey, it's only the Fourth Amendment we're talking about here.

This can't look good on a resume

What does one do when you're the top law enforcement official in the county and the driver of the car in which you are riding is stopped and arrested for driving while intoxicated? Why, if you're the top law enforcement official in the county would you allow your campaign manager to get behind the wheel of the car drunk? Why would you get in the passenger seat?

Cuyahoga County (OH) Prosecutor Bill Mason is stuck trying to answer those questions after it was revealed that he was a passenger in a car driven by his friend and campaign manager Tom Regas earlier this month.

Mr. Regas was arrested for DWI after allegedly failing a battery of coordination exercises administered by police. Mr. Regas also declined to take a breath test. When asked how much he had to drink, Mr. Regas said he drank "several" glasses of wine. He said Mr. Mason had consumed about the same amount as he did.

In what must have been some sort of an oversight, the arresting officer failed to note that the County Prosecutor was a passenger. Another officer was kind enough to drive Mr. Mason home and drop off the councilman's car at his house.

Rumors are circulating that Mr. Mason will resign his post under pressure from MADD.

New advocacy group seeks to ban cell phone use while driving

A new advocacy group has formed preaching the evils of talking on cell phones and texting while driving. FocusDriven was born in Grapevine, Texas where a mother lost her daughter due to an accident with a distracted driver.

The group appears to be following MADD's successful blueprint by creating awareness, pushing for legislation and supporting victims.

I would look for a push to create more "cell-free" zones in the next year. We may also begin to see prosecutors issuing subpoenas to cell phone providers to determine if someone was using their phone at the time of any fatality accidents.

See also:

"FocusDriven launch draws nation's attention to distracted driving epidemic" Welcome to the Fast Lane (Jan. 13, 2010)

"Grapevine woman's MADD-like group fights distracted driving" Dallas Morning News (Jan. 13, 2010)

"DWT is more dangerous than DWI" The Defense Rests (Dec. 22, 2009)

Distraction.gov (Official US Government website for distracted driving

MADD about interlocks

An Ohio state legislator has introduced a bill to make ignition interlock devices mandatory for citizens convicted of driving while intoxicated, even first-time offenders. Currently the decision whether or not to order a citizen to install the device rests with the court.

This proposal is in line with MADD's Campaign to Eliminate Drunk Driving. MADD is pushing for a national requirement that all citizens convicted of driving while intoxicated be ordered to install an ignition interlock device in their cars. But that's not all that MADD is pushing.

MADD also supports the mandatory installation of ignition interlock devices, or other devices to detect the presence of alcohol, on all cars. Nevermind that it's not against the law to have a drink and then drive a car -- provided you haven't lost the normal use of your mental or physical faculties or that the alcohol concentration in your body is less than .08 percent.

Interestingly enough, the Alliance of Automobile Manufacturers, General Motors and Toyota are platinum-level MADD sponsors and Volkswagen is a silver-level MADD sponsor.

Who would calibrate these devices? How often would the owner of the car be required to have the device calibrated? Who would monitor the information? Who would have access to it? What about a car that is shared by one or more people? If such technology were mandated, what about the Fourth and Fifth Amendments?

Is it really a good idea to sacrifice our liberty at the altar of public safety? 

• See Arizona DUI Attorney Dan Jaffe's thoughts on MADD's latest proposal.
  
• Here's what California DUI Attorney Lawrence Taylor had to say about the MADD campaign.