Evidence in Criminal Cases: DNA Testing in 2 Minutes

Here's a nice two-minute video from the Innocence Project showing how DNA testing works:

Can't Pay Fines in Ireland? Don't Worry, There's No Space in Jail

Law abiding citizens ought to be outraged by reports about a significant number of offenders refusing to pay fines and facing no adverse consequences for such disregard for their legal obligations. What's worse, to escape scrutiny, the system is resorting to skullduggery to conceal the true numbers of those turned away from jail for not paying their fines by not characterising them as being on "temporary release". These individuals are being equated - wrongly - with those who have served their jail terms.

As the Irish Times reports, "a “front-door mechanism” was created last year. The system ensures that most fine defaulters arriving at the gates of a jail are turned away because there is no room for them inside.

Their fines are expunged on the spot because they are technically regarded as having served a short prison term in lieu of their fine."

Why should people pay fines if there are no consequences for not paying them? To be sure, many will pay out of a sense of legal or moral obligation. But many pay fines only because of fear of other secondary sanctions for refusal to pay. If these sanctions fail to bite, such individuals will ignore the primary sanction. To add insult to injury, reports indicate that these fines are expunged. This makes no sense. Why not retain them on the records as unpaid debts that could be garnished from wages etc when possible?

The reason provided for turning defaulters away from jail - lack of space - is not a justification for absolving them of all punishment. Why not impose community service orders if there is no space in jail? Or other sanctions like taking away driving licences (if the fines were for automobile related offences)? There are plenty of punishment avenues other than incarceration and the state ought to explore them in these instances.

Turning a blind eye to those who refuse to honour their legal obligations only sends the wrong signal to society and ultimately undermines respect for the rule of law. One can only expect more disregard for legal rules if this policy continues.

Police Using Flickr to Nab London Rioters; Facebook Next?

What about Google's Goggles? Remember the scary technology that would allow users to take a photo of a person's face and get personal information about him/her? This raised questions about privacy rights and the company is supposedly still attempting to resolve these issues before roll out. One can readily see the problems posed by an app that allows any person to take one's photo in a public place and get every bit of information available about one online. But do similar problems arise if Scotland Yard were to use this technology to identify the thugs involved in rioting and looting in London? London has a massive network of surveillance cameras and it might be possible to get images of many of those engaging in violence and looting. An opinion poll would probably show widespread public support for such policing.

London police is reportedly using Flickr to help identify the perpetrators; they have "posted a set of photos on Flickr showing people they believed to be participants in the riots. ... the images are primarily from the Croydon and West Norwood neighborhoods in south London, although the site says that more will be posted soon. With the initiative, called Operation Withern, the police are asking the public to identify anyone they recognize from photographs captured by CCTV surveillance cameras in areas where stores were looted."

What about Facebook tagging? I wonder how many of these thugs have Facebook accounts and whether they will be tagged after these images are published.

Dog in the Witness Box to Aid Rape Victim: Unfair to the Accused?

Does the presence of a comfort dog in the witness box during testimony sway the jury? Can a cute dog trigger feelings of sympathy and make the witness more credible? Is the presence of the dog a violation of the accused's right to a fair trial? These questions are being raised in New York following a trial of a father for raping his teenaged daughter. The father was convicted and sentenced to 25 years in jail. He is appealing. From the NY Times:

Rosie, the first judicially approved courtroom dog in New York, was in the witness box here nuzzling a 15-year-old girl who was testifying that her father had raped and impregnated her. Rosie sat by the teenager’s feet. At particularly bad moments, she leaned in. 

Prosecutors here noted that she is also in the vanguard of a growing trial trend: in Arizona, Hawaii, Idaho, Indiana and some other states in the last few years, courts have allowed such trained dogs to offer children and other vulnerable witnesses nuzzling solace in front of juries.

Some comfort dogs have supposedly appeared in over 50 trials. While it is true that the dog is only doing what it is trained to do - offer comfort when the witness shows signs of stress - it is possible that juries may be swayed. This is quite a complicated issue and the appeals court decision ought to make for interesting reading.

Crime and Punishment in re Breivik: What about Vengeance?

How much jail time can Anders Breivik expect to get under Norwegian law? This is an obvious question for most people in the aftermath of the horrific killings in Norway. The answer: a maximum of 21 years.

Does this punishment fit the crime? Is Norwegian justice too soft? For those used to the U.S. justice system, the maximum jail term of 21 years for such a horrific act seems incredibly low. Even Bernie Madoff who did not kill anyone got a longer sentence. As did Jeffrey Skilling of Enron, who also did not kill a single person. Norwegians are also raising questions about the adequacy of such low sentences for such crimes as this USA Today article reports: Anti-Breivik Facebook groups have appeared such as Anders Behring Breivik Haters and Hang Anders Behring Breivik. One group asked members to vote on whether Norway should reintroduce capital punishment, abolished for civilian crimes in 1902 and banned completely in 1988 ... 71,000 of 97,000 members replied no.

A New York Times op-ed contrasts the Norwegian situation with U.S. style justice and makes the case for vengeance, implying that Norway's legal system ignores this basic human instinct: "... how different is revenge from justice, really? Every legal system, however dispassionate and procedural, must still pass the gut test of seeming morally just; and revenge must always be just and proportionate. That is what the biblical phrase “eye for an eye” means. Justice requires that no less than an eye can be taken in retaliation for a lost eye, but no more than an eye either."

I am not too sure about the need to incorporate vengeance into the sentencing system. For starters vengeful feelings are extremely variable (across time, religion, gender, ethnicity, socialization etc) and even accommodating the vengeful feelings of those at the mid-point of the spectrum could take us to a pre-modern system that might prove extremely barbaric.

But is the 21 year prison term too low on other grounds? The deterrence argument that is mentioned in the USA Today article by a Norwegian lawyer is pretty weak. But what about incapacitation as a justification for punishment? Breivik is young and the only way to ensure that he does not pose a further threat to society is to keep him permanently behind bars? 21 years might not be enough.

Is the Anglo Investigation Interminable?

The investigation into Anglo limps on as the court granted another extension and no charges are expected to be filed until next year:

Lawyers representing the Director of Public Prosecutions told the court that it expected to receive a file on financial transactions by Anglo directors within the next 14 days.

The file relates both to a suspected failure by the bank to maintain a register of directors’ dealings and a suspected withholding of information from auditors.

Predictably, the lawyers claimed that the transactions were "more complex than expected." I don't know how this claim can be repeated over and over again. It might have been more complex than expected the first time, but surely the complexity loses its unexpected quality thereafter and adequate steps to tackle it are in order? Better and more legal resources would help reduce the complexity and speed up the analysis? Moreover, one would have thought that the snail-like pace of the investigation would have changed after harsh remarks from the judge. But this snippet proves that little has changed: "A file concerning a loan to a particular Anglo director, sent to the DPP in December 2010, has been assessed by the DPP and is now being considered by its lawyers, while two other files on “back-to-back” deposits between Anglo and Irish Life and Permanent have also been sent to the DPP."

Seriously? You cannot make this stuff up. Some of my previous posts about the Anglo investigation are here, here, here, and here. At this rate it would take a miracle for any charges to be filed.

Overcriminalization: Over 4500 Federal Crimes

I've written in the past about overcriminalization. Among other things, I argued that blurring the line between criminal conduct and wrongs more appropriately dealt with under the civil law severely dilutes the expressive power of the former and erodes respect for the rule of law. A new article in the Wall Street Journal provides fresh ammunition:

By the turn of the 20th century, the number of [federal] criminal statutes numbered in the dozens. Today, there are an estimated 4,500 crimes in federal statutes, according to a 2008 study by retired Louisiana State University law professor John Baker.

There are also thousands of regulations that carry criminal penalties.
Counting them is impossible. The Justice Department spent two years trying in the 1980s, but produced only an estimate: 3,000 federal criminal offenses.
The American Bar Association tried in the late 1990s, but concluded only that the number was likely much higher than 3,000.

Not surprisingly, the prison population has grown at an alarming rate: "the number of people sentenced to federal prison has risen nearly threefold over the past 30 years to 83,000 annually. The U.S. population grew only about 36% in that period. The total federal prison population, over 200,000, grew more than eightfold—twice the growth rate of the state prison population, now at 2 million ..."

In states like California, the overcrowding problem has resulted in plans to release prisoners in order to save money. Faced with a choice of spending more to keep criminals in jail or releasing them, a recent opinion poll showed that over 60% of respondents supported "reducing life sentences for third strike offenders convicted of property crimes such as burglary, auto theft and shoplifting." Over 70% supported "the early release of some low-level offenders whose crimes did not involve violence."

You can read the full article here. Irish lawmakers should consider this cautionary tale as they seek to adopt new laws aimed at showing the public that they are tough on crime.

More Details on Anglo Fraud Emerge in AIB Investigation

It appears that the alleged fraud being investigated by AIB in Anglo's deposit book is very much the plain vanilla sort: "around €3m of money previously held in Anglo was unaccounted for.
It is believed the sum was stolen from a number of deposit accounts at Anglo by a former official at the disgraced bank.
The Anglo official, who was based in Dublin, is suspected of moving large sums of money between accounts to cover the thefts.
It is suspected he avoided detection by ensuring that funds were available for accounts that matured.
The man at the centre of the allegations has since died ..."

Anglo will probably claim that this is just a rogue actor. However, this raises questions about its supervisory practices and internal controls. The article is available here.

Anglo Fraud Could be Uncovered by AIB?

The veil of secrecy that has protected the key players in Anglo might be beginning to part as the restructuring process yields more information about transactions at the failed bank. As the Irish Times reports, AIB has commenced an investigation into allegedly fraudulent transactions involving Anglo's deposit book:

"The bank said the investigation was triggered by a customer inquiry and concerned certain discrete funds.

"In the event that fraudulent activity has occurred, AIB confirms any such transactions will be for the account of the bank," it said. The Garda Bureau of Fraud Investigation and the Central Bank have been informed of the matter. Some €7.1 billion in deposits held in Anglo Irish Bank were transferred to AIB..."

The Independent also has a report on the investigation, stating that "a complaint from a customer who believes money was missing from an account sparked the probe."

This investigation might shed light on Anglo's banking practices with implications beyond these transactions.

Saggy Pants Banned: Overreaching Law?

The fashion police strikes in southerwestern Illinois. Collinsville's city council voted to ban saggy pants and impose criminal penalties for breach. Via the Chicago Tribune:
"The Belleville News-Democrat reports the ordinance forbids pants that ride lower than 3 to 4 inches below the waistline of the underwear. A first offense is punishable with a $100 fine, while a second offense would carry a $300 fine plus 40 hours of community service."

In another example of regulatory overreach at the national level, Congress failed to repeal a new lightbulb law; its first phase comes into effect from "Jan. 1 through 2014, [and] requires bulbs to be 25 to 30 percent more efficient. The second stage could require bulbs to be 60 percent more efficient by 2020. ... The restrictions could eliminate the familiar incandescent bulbs, which have used essentially the same technology since Thomas Alva Edison invented them.
Republicans ... said the new types of bulbs are too expensive. Prices range from about $1.50 for a halogen incandescent to $20 for light-emitting diode, or LED, bulbs, which are supposed to last 10 years. Regular bulbs today cost about 35 cents."
More at the NYT's website here.

More Delays in Anglo Investigation

Will this ever end? Justice Kelly's deadline seems set to expire without any discernible action as the investigation has not moved beyond the 90% mark. Via the Independent:
The ODCE and the gardai have indicated that they will not be in a position to complete their files for the Director of Public Prosecutions, James Hamilton, until at least the end of the year.
Although 90pc of the files have been completed, witnesses are still being interviewed in connection with the rest of their inquiries.
Some 200 people have already co-operated with the investigation but more than 40 other witnesses have yet to be seen.

I posted previously about reading speed in this investigation. Other posts on the investigation can be found here, here, here and here.

Amidst all this, the DPP is quitting to protect his pension.

One more strike against elected judges?

I blogged recently about John Waters' suggestion that Irish judges be elected by the public. In that post I pointed to evidence showing that an elected system yields judges who behave more like politicians than professional adjudicators. Now here's some more evidence via an article about Alabama judges - who are elected - via the NYT:
Since 1976, according to a new report, Alabama judges have rejected sentencing recommendations from capital juries 107 times. In 98 of those cases, or 92 percent of them, judges imposed the death penalty after juries had called for a life sentence. ... more than 20 percent of the people on death row in Alabama are there because of such overrides, according to the report, from the Equal Justice Initiative... The overrides in Alabama contributed to the highest per capita death sentencing rate in the nation, far outstripping Texas.
...
Overrides are more common in election years.

“Not surprisingly, given the political pressures they face, judges are far more likely than juries to impose the death penalty,” Justice John Paul Stevens wrote in a 1995 dissent from a decision that upheld Alabama’s capital sentencing system.
The full article is available here. It shows a clear divide between Alabama and two other states - Florida and Delaware - where judges are appointed. The desire to be seen as tough on criminals surely has to be one explanation for this contrast. Note that this is in Alabama - no one would accuse its jurors of being liberals or softies!

Gallup Poll on Confidence in Criminal Justice System (US)

Since we've been discussing judicial pay and related issues, this new Gallup poll on confidence in the criminal justice system might be of interest. Surprisingly, Americans' confidence in the criminal justice system was on par with that for newspapers! Out of 16 institutions surveyed, both came in at no. 9, well below institutions like the military, small business and the police.

 

Stabbing Burglars in Self Defence to be Legal

Via the BBC: Justice Secretary Ken Clarke has said a householder who knifes a burglar will not have committed a criminal offence under plans to clarify the law on self-defence in England.
He told the BBC people were entitled to use "whatever force necessary" to protect themselves and their homes.
Asked about what this would mean in practice, he said: "If an old lady finds she's got an 18 year old burgling her house and she picks up a kitchen knife and sticks it in him she has not committed a criminal offence and we will make that clear."
He added: "We will make it quite clear you can hit the burglar with the poker if he's in the house and you have a perfect defence when you do so."
Mr Clarke said legal protection would not extend to anyone shooting a burglar in the back when they were fleeing or "getting their friends together to beat them up".

For my previous posts on self defence and lethal force, see here, here and here. Even if the law is amended as the Justice Secretary proposes, self defence issues are likely to be highly situational and judges will still have to make some tricky decisions. I doubt if this quick fix will prove to be as simple as its proponents might think.

UK asks Sri Lanka to investigate War Crimes

The BBC reports that the UK is asking Sri Lanka to conduct an investigation into war crimes allegedly committed by its troops following a new documentary showing such crimes:
Britain's Channel 4 showed what it said was previously unseen footage of what purported to be extrajudicial killings of Tamils by the military.

Sri Lanka's defence ministry dismissed the videos as fabricated, saying they were intended to discredit the army.
The one-hour film, entitled Sri Lanka's Killing Fields, shows what appears to be executions of Tamil men, and video showing the corpses of naked women who appeared to have been sexually assaulted.

One video - which was said to have been taken by the military - shows graphic images of at least three bound prisoners, including one woman, being shot at close range.
In it, a soldier gives instructions to the others about how to kill the men.
"Is there no one with the balls to kill a terrorist?" he is heard saying, before telling his colleagues to aim at the prisoners' heads.

I've written previously on Huffpo about the Sri Lankan issue here and blogged previously here.

New Irish govt. to Introduce Anti-corruption Law

The Independent reports that "Tougher laws to tackle rogue bankers and extra powers for the Criminal Assets Bureau (CAB) are two key planks of the new Government's strategy to combat crime.

A new anti-corruption law is to be introduced to punish white-collar crime and end what Fine Gael and Labour described as the impunity from consequences for corporate behaviour that threatens the economy.
It is also intended to take steps to prevent convicted white collar criminals from transferring their assets to spouses and other family members and to give power to the CAB to pursue them for any financial gains or benefits deriving from the proceeds of their illegal activities."

The new law must also contain provisions for whistle-blower protection and create a hotline for tips. It is not sufficient to merely pass legislation. As the various reports into the performance of the Dept. of Finance and regulatory bodies have conclusively demonstrated, the problem is poor enforcement even of existing law. Poor technical capability has been a significant contributing factor to the under-enforcement problem. So, any new legislation must provide for appropriately skilled staff and resources. White collar criminals are not going to be lacking in good legal representation. Expecting the same old departments to fight them just with new laws that look good on the books is a bridge too far.

Anglo's David Drumm in the Independent: It's Not My Fault

David Drumm, former CEO of Anglo Irish Bank, is interviewed by the Independent here. His remarks give a good indication of the line likely to be taken by potential defendants - if the state ever gets around to prosecuting anyone. Here are some choice quotes:

I obviously can't accept responsibility for how the bank has been managed since, and I'll say no more on that. The issue I have is that the whole worldwide banking system collapsed in 2008, and it wasn't just one bank. A lot of people share responsibility, but Anglo has taken the brunt of it.
... we made a decision in 2004 to reduce our land and development exposures, particularly in Ireland, because right at that time we saw intense competition coming in from other banks, we saw land prices going up a ridiculous rate, and we made a conscious decision to pull back from it. We failed to execute on our own plan, and we never pulled back.

That was because of the strength of the relationship, we just had very strong, longstanding relationships with our borrowers and we couldn't stand back from them. If I think back about that time and what we could have done differently. . . I can't get away from thinking about that quite frankly. You know, 2008 was just a nightmare year, just a perfect storm of everything going wrong. We had the Quinn stake which created massive funding problems because of the uncertainty they created for the bank. We had short sellers who were being fed by the Quinn stock because we had the highest availability of stock in the market at one stage. So our stock was available to borrow, and short sellers need to be able to borrow stock. And ours was cheap to borrow because there was so much of it. They were shorting us. They were sowing rumours. The world around us was in a very negative state anyway, and banks everywhere, everywhere, were going bust.

Every day the media were asking which bank was going to go bust next. And if you think about it, what bank could survive that? By this stage, we tried our absolute best. We were having daily board meetings, and sometimes two board meetings a day. But I will say this: every step we took was hand in hand with our own [Financial] regulator, the Central Bank, and what really gets me now is the same people -- most of them are still there -- and their political bosses are trying to disown us. And if I'm going to take responsibility for my role, they must take responsibility too.
I would say in my own defence, that (as Anglo chief executive) I acted at all times in the interests of the bank and not only with the knowledge, but with the full co-operation and backing of our Financial Regulator and the Central Bank, and obviously with proper legal advice wherever it was required."

... the spin out there is that there were all sorts of hidden losses on the books and reckless lending and so on and so forth, which just totally ignores the fact that the market began to melt really badly in early 2009, which has created some of the issues for all the banks.

The Government has to decide which poison it wants to take. Did it agree with our accounts in 2008? I presume it did because it signed them. Or did they sign the accounts knowing that those accounts were misleading? You have to choose one. The next thing I would say is the horrendous losses that have been reported for the bank breaks out into two categories. There are the losses created through the transfers to Nama, and there are the ones that didn't go into Nama that would have occurred anyway because of the meltdown in the economy. Anglo, as a bank, was forced to sell half its loan book at a 50 or 60 per cent discount and the losses that transaction created were €22bn. So, in other words, that was a choice to create that loss. Anglo is now reported as having the biggest losses of any bank in the world. Does that seem right to you?

Arrest of Sean Fitzpatrick

The media is in a tizzy today about the arrest of Sean Fitzpatrick. Via RTE:
Former Chairman and Chief Executive of Anglo Irish Bank Sean FitzPatrick has been arrested by members of the Garda Bureau of Fraud Investigation.

Mr FitzPatrick was arrested at his home in Greystones, Co Wicklow, at 6.30am.
Gardaí also searched Mr FitzPatrick's home.
He is being detained under Section 4 of the Criminal Justice Act 1984. His period of detention has since been extended on two occasions and he can now be held until 6.30am tomorrow morning.
Mr Fitzpatrick is being questioned as part of what gardaí describe as an investigation into alleged financial irregularities at a Financial Institution - understood to be Anglo Irish Bank.

Here are links to stories in the Irish Independent, Irish Times, and TV3.

Arresting the man is the easy part and I am surprised that it took this long. The real question is whether the prosecution has the nous to get a conviction. There are reports that the Theft and Fraud Offences Act is what is being used. Here's the relevant provision:
10.—(1) A person is guilty of an offence if he or she dishonestly, with the intention of making a gain for himself or herself or another, or of causing loss to another—

(a) destroys, defaces, conceals or falsifies any account or any document made or required for any accounting purpose,
(b) fails to make or complete any account or any such document, or
(c) in furnishing information for any purpose produces or makes use of any account, or any such document, which to his or her knowledge is or may be misleading, false or deceptive in a material particular.
(2) For the purposes of this section a person shall be treated as falsifying an account or other document if he or she—
(a) makes or concurs in making therein an entry which is or may be misleading, false or deceptive in a material particular, or
(b) omits or concurs in omitting a material particular therefrom.
(3) A person guilty of an offence under this section is liable on conviction on indictment to a fine or imprisonment for a term not exceeding 10 years or both.

The language is rather broad so hiding loans to mislead investors ought to be covered. But there are likely to be difficulties posed by the green light provided by Anglo's external auditors. After all, a CEO is entitled to rely on independent professional advice and is not expected to be an accounting or financial expert. If the auditors told him that transferring the loans was OK, can he be said to have acted "dishonestly"?

Fitzpatrick is also likely to have had legal advice on those transactions. What if the lawyers advised him that moving the loans off Anglo's books was legal?

Another complication is the knowledge of the financial regulator. If, as some reports claim, the regulator knew about the transactions and acquiesced in them, can it be said that Fitzpatrick acted dishonestly?

There are bigger questions about why loans to insiders were allowed in the first place. After the spectacular fall of Worldcom, this sort of thing should have been prohibited.

My NY Times/IHT Op-Ed on French Burqa Ban

The NY Times & the International Herald Tribune published my op-ed on the French burqa ban today. Here's an excerpt:
Why the French obsession with the burqa? After all, as the French government itself has conceded, only about 1,900 women wear the full-body covering. So why are over half of the respondents in recent public opinion polls in favor of a ban on it?
The answer is simple. This is not about a fashion faux pas or women’s rights, but about sending a message to Muslims. Concerned with increasingly visible numbers of Muslims openly practicing their way of life while enjoying the privileges of life in the West, French citizens and politicians alike feel that they need to restore “Frenchness” to their streets.

You can read the full article by clicking on this link.

French Veil Ban

The French Parliamentary committee proposed a partial veil ban yesterday. The Commission’s report claims that "The wearing of the full veil is a challenge to our republic. This is unacceptable. We must condemn this excess."
The proposal is to ban burqas in hospitals, schools, government offices and on public transport. Women defying the ban are to be denied public services.
The ban’s proponents claim to be acting in the cause of equality: they pronounce that the burqa is “the symbol of the repression of women” and “is a denial of the equality between men and women and a rejection of co-existence side-by-side.”

The irony of fighting repression with a ban seems to have escaped notice. I will have more to say on this topic later.