The Latest Car Bomber

May 15, 2010

The case of the bungled car bomb parked in Times Square appears solved, at the first level at least, if news accounts are to be believed.  Apparently good detective work,  a frenzy over two days with investigators reviewing film from 48 cameras was credited in a joint statement from the Department of Homeland Security and the United States Attorney for the Eastern District of New York, Preet Bharara.

How ironic, Mr. Bharara, the United States Attorney immigrated with his family from India when he was a child, and now he is United States Attorney in the most prestigious post in the United States for that office.   The suspect is reportedly a  naturalized American citizen, originally from Pakistan, perhaps even from Kashmir.  The suspect may be prosecuted by a naturalized Indian, to wit:  insult to injury.

The bomb suspect, Faisal Shahzad, after his arrest reportedly told investigators that he had received bomb-making training in Waziristan.  This and other facts are recited in the criminal complaint filed, sworn to by F.B.I. agent Andrew Pachtman.  It runs 10 pages, claims he admitted making the car bomb and details his purchase of the car, a 1993 Nissan Pathfinder.  There is a question whether Shahzad was given his Miranda Warning before he was questioned, but there may be sufficient other evidence regardless of his statements.  After obtaining the vehicle identification number from the frame of the Pathfinder, investigators tracked down the registered owner.  He had sold the vehicle, and that person sold it to Shahzad.  There were no papers from the transaction, but the buyer had used an e-mail address.  They showed the seller a group of photos, and the vehicle’s seller picked out a photo of Shahzad.

Shahzad reportedly told investigators he drove to the airport in an Isuzu sport-utility.  Investigators found the vehicle and in it, found a 9-millimeter Kel-Tech automatic pistol with a folding stock and several spare magazines.   At his home in Connecticut in his garage, they found fertilizer and M-88 firecrackers, just as were found in the Pathfinder in Times Square.

Shahzad is not the first Pakistani-American to be involved in terrorist activities in the news lately.  Two months ago David Headley pleaded guilty to helping plan the 2008 bombing in Mumbai.  Headley, the son of a Pakistini diplomat, was a resident of Chicago and retained his ties there even as his ties to militant groups grew.  Reportedly including a coconspirator named Ilyas Kashmiri, a Qaeda member reportedly one of the most dangerous from the tribal regions  of Pakistan.  Headley was arrested in 1998 for heroin smuggling but avoided a lengthy prison sentence by cooperating with police, including volunteering undercover operation in Pakistan for the D.E.A. It was probably while still working for the D.E.A. that he picked up his militant contacts and initial training.


Criminal Defendants Constitutional Right to Confrontation

June 26, 2009

Your constitutional rights.  The United States Supreme Court tells us what they mean. The latest revelation is Melendez-Diaz v. Massachusetts, an appeal from a conviction for drug distribution.

At the defendant’s trial, to prove that the substance which the defendant possessed was, in fact, cocaine, the prosecution had offered into evidence a report from the chemical lab.  According to Massachusetts law, the report was accompanied by affidavits by the chemists who analyzed the substance called “certificates of analysis.”  In one of these certificates, the signatory swore he or she found the stated results.    But the chemist himself or herself did not appear in court to testify.  Defendant’s lawyer objected to the admission of this evidence at the trial without the defendant having the opportunity to “confront” this witness and cross examine him or her, just like any other witness before the jury.

The Massachusetts procedure provided that such forensic analysis was to be admitted into evidence as prima facie evidence of its conclusions.  That is, the report could be contradicted by scientific evidence offered by the defendant, but, if uncontradicted, that would be the only evidence offered as to the chemical character of the substance.

The Supreme Court decided today that this procedure deprived the defendant of his Right to Confrontation under the Sixth Amendment to the United States Constitution. “Petitioner was entitled to ‘be confronted with’ the persons giving this testimony at trial, ” the Court held.

The Sixth Amendment to the United States Constitution provides:

Amendment VI
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Similarly the Oklahoma Constitution provides in Article 2:

§ 20. Rights of accused in criminal cases.
In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed or, where uncertainty exists as to the county in which the crime was committed, the accused may be tried in any county in which the evidence indicates the crime might have been committed. Provided, that the venue may be changed to some other county of the state, on the application of the accused, in such manner as may be prescribed by law. He shall be informed of the nature and cause of the accusation against him and have a copy thereof, and be confronted with the witnesses against him, and have compulsory process for obtaining witnesses in his behalf. He shall have the right to be heard by himself and counsel; and in capital cases, at least two days before the case is called for trial, he shall be furnished with a list of the witnesses that will be called in chief, to prove the allegations of the indictment or information, together with their postoffice addresses. (emphasis added)

In 2004, the Supreme Court had ruled that the Confrontation Clause really meant what it said in Crawford v. Washington. In Crawford, the defendant’s conviction had been based in part on evidence at trial of the tape recorded statement of a witness made outside court, but the witness was not presented in open court for cross-examination by the defendant. The Supreme Court reversed that conviction

Massachusetts had argued (and all law enforcement with them) that these chemical reports are not “testimonial,” that the witnesses who perform these chemical tests and complete the accompanying affidavits as their test results are not “accusatory” witnesses like eyewitnesses or arresting police officers, and therefore the “Confrontation” provision should not apply to them.  They should not be required  to appear in court.  These witnesses, the respondent argued in this case, were not like the “notorious” ex parte witnesses used to convict Sir Walter Raleigh of treason in 1603 by reading the written statements of witnesses instead of producing live witnesses, the case said to be the source for our England’s and our system’s belief in the Right of Confrontation.  But Justice Scalia noted that the Sir Walter Raleigh case was not the source of the Right of Confrontation but instead its violation in convicting Raleigh was a scandal to the jurisprudence of England because the Right was already well established.

“It’s just too much trouble for our chemists to have to come to court all the time,” runs one of the arguments.  The Supreme Court said, “The arguments advanced to avoid this rather straightforward application of Crawford are rejected.”

Justice Scalia, writing for the majority of the Supreme Court, noted that the “certificates” in the Massachusetts trial were really “affidavits,” condemned in the earlier Crawford decision. Justice Scalia said of the certificates, “They are incontrovertibly a ‘solemn declaration or affirmation made for the purpose of establishing or proving some fact.’” “The ‘certificates’ are functionally identical to live, in-court testimony, doing ‘precisely what a witness does on direct examination.’”

The Court noted that the cases involving such “affidavits” had arisen in the last 30 years, since the Court’s 1980 decision in Ohio v. Roberts.  The Roberts case had some language to the effect that unconfronted testimony was admissible so long as it bore “indicia of reliability,” and a number of state supreme court decisions had ruled that such affidavits or certificates did not violation the Confrontation Clause.

The Court noted precedents upholding the Confrontation Clause.  It cited Kirby v. United States decided in 1899.  In that case the defendant had been convicted at trial of receiving stolen property, some of the trial evidence of which was records of convictions of three other persons who were found guilty of stealing the property.

The dissent argued that an honest analyst to forensic tests will not alter his testimony when confronted by the defendant, i.e., just because he has to come to court.  “…The same cannot be said of a fraudulent analysis,” Justice Scalia wrote, noting cases where no analysis was done.   “Like the eyewitness who has fabricated his account to the police, analyst who provides false results may, under oath in open court, reconsider his false testimony.”  And, “like expert witnesses generally, an analyst’s lack or proper training or deficiency in judgment may be disclosed in cross-examination.”


Winning the War on Drugs by Quitting

June 22, 2009

The United States has been waging a “war on drugs” for some time.  We even had a cabinet-level “Drug Czar”, who reported directly to the President of the United States.  Reminiscent of the Viet-Nam war, the more we had to win, the less we seemed to win.

The “Drug Czar” has disappeared.  Much of the Republic of Mexico is consumed by open gun fights, kidnaping  and blatant police corruption.   Now the American border states, especially in Arizona, have experienced a spike in kidnaping. All this from the drug trade.

What drives the drug trade?  American consumers, of course.  It’s the American drug user who pays for much of the drugs world-wide, from Afghanistan to Thailand to Columbia, but especially in North and South America.  No matter what our law enforcement seems to do, that demand continues to drive the growing supply.

From time to time, people voice the idea that it’s time to declare victory in the “War on Drugs” and go home – just like in Viet-Nam.  Their point is, there is no “winning” this war, so we should admit the undeniable facts and get on with our lives.

The Law Enforcement Against Prohibition (“LEAP”) is the latest group to call out for this solution.  LEAP claims to have 13,000 members according to Jack Cole, executive director of the national association.  He served in law enforcement as an undercover narcotics officer for 14 years in New Jersey. The group claims 102 members in Oklahoma, including 11 members who have law enforcement experience.  They just put up a billboard on the Broadway Extension in north Oklahoma City that reads, “Drug Abuse is Bad.  The Drug War is Worse.”

LEAP makes the argument so often made comparing the “War on Drugs” with prohibition of alcohol in the 1930’s.  Prohibition spawned the rise of gangsters as the alcohol-seeking public paid for illegal alcohol.  Similarly, LEAP argues that all the crime associated with drugs, most notably all the violence, comes from the illegal character of drugs.  If the drugs were legalized, the market would evaporate overnight, the profit would disappear, and there would be no need for any violence.  Moreover, by legalizing drugs, the use of drugs and drug users could be better regulated and monitored that it can now, when everything is simply illegal.  The idea is that the government could control the quantity, quality, production, price and distribution of all drugs.

The argument is a good one, but the American public is just too afraid to accept drugs, too afraid to accede to addiction-causing drugs, notwithstanding the acceptance of addiction-causing alcohol.  It just seems too big a “leap.”

No surprise that law enforcement types decry LEAP and its arguments. Mark Woodward, spokesman for the Oklahoma Bureau of Narcotics and Dangerous Drugs said legalizing and regulating drugs would cause more problems than it would solve.  “It’s frightening and reckless that a group of law enforcement officers would endorse something like that….Look at what happened when we legalized alcohol and prescription drugs.   Now they’re the two most abused substances globally,” Woodward said.

President Obama has called for $14.1 billion to support the “War on Drugs” for the year 2009, according to the Office of National Drug Control Policy.  There is no let-up in sight.  The war goes on, just like Viet-Nam.  We could never win, but we just could not make ourselves face the fact that we were not winning and – apparently – never could win.


Investment in Drug/Alcohol Treatment

June 8, 2009

The National Center on Addiction and Substance Abuse has just released its three-year study.  For every $100 the state of Oklahoma spent on substance abuse over the last 3 years, $2.30 went toward prevention and treatment.  The state can save millions if it spends more on treatment and prevention, Joseph Califano said.

Califano is founder of the non-profit foundation, which is sited at Columbia University, New York. After serving in various government positions in the Department of Defense and practicing as a partner in the well-known law firm of Williams, Connolly & Califano, he served as United States Secretary of Health, Education, and Welfare from 1977 to 1979.  From that position he was fired by President Jimmy Carter, reportedly for his aggressive anti-smoking campaign.

“In terms of public spending, it is an upside-down cake,” Califano said.  “It is an inexcusable waste of money when we could avoid all the human wreckage, and all the public spending that’s imposed on taxpayers if we could just move to prevent this disease, to treat this disease.”

The report ranks Oklahoma twenty-second among the fifty states in percentage of substance abuse spending for prevention and treatment.  “The middle of the pack isn’t good enough…I would like to see us leading the nation,” said Terri White, state secretary of health and mental health and substance abuse services commissioner for the state.  “This report is a national study confirming what we know in Oklahoma, which is when you invest in the prevention of addiction and the treatment of addiction, the overall costs to the state go down even above what you spend.”

Oklahoma’s drug court costs about $5,000 per offender, whereas incarceration costs from $10,000 to $19,000 per offender per year.

Suggestions are that funding more treatment programs could come from a sales tax on alcohol of one or two cents or from the $95,000,000 Oklahoma Tobacco Settlement Endowment Trust.

The report is based on data from 2005.  New Hampshire spent $0.22 per $100, while Connecticut spent $10.39.  Oklahoma’s $2.38 per $100 is about the national average.  The report states that most of the spending by local, state and federal government is for health care from untreated addiction, which causes or contributes to more than seventy other diseases.  In 2005, Oklahoma spent $24,600,000 on substance abuse, while the federal government spent $238,200,000,000.

The Oklahoma Department of Mental Health and Substance Abuse estimates that 5% of the population over the age of 18 needs treatment for alcohol addiction (140,000 people); that 1% the population needs treatment for other types of drug addictions (21,000 people); that 6% of the adolescent population needs treatment for alcohol and drug addiction (about 20,000 young adults); about 7 ½ people need alcohol treatment for each person who needs drug treatment in Oklahoma.


“Drug Arrests” and Your Fictional Constitutional Rights

April 20, 2009

Police search vehicles every day on trumped up excuses and cover their tracks later.  Who cares?  Certainly not the citizens of the United States.  The protections citizens believe they have from the Fourth Amendment concerning unreasonable search and seizure simply do not exist in reality, on the street where the uniformed police always push the envelope in the name of “fighting crime.”

A pastor in Arizona was beaten by Border Patrol agents when they insisted on searching his car at a Border Patrol checkpoint.  The pastor thought he had rights protected by the Constitution.  The Border Patrol knew otherwise because they were more powerful and they could later justify pretty much anything they did because, no matter what they do, they are “fighting crime.”

Steven Anderson, pastor of Faithful Word Baptist Church in Tempe, Arizona, was stopped by Border Patrol checkpoint 87.5 miles from the Mexican border.  He was well within the United States.  When stopped, he refused to allow a search of his rented vehicle.  He had no drugs and no other occupants in his car.  That did not stop the Border Patrol, who used a drug sniffing dog, which, the Border Patrol claims, made a “hit” on Anderson’s car, thus giving them “probable cause” to search his car for drugs. When Anderson refused to allow a search, the police broke both front  windows, immediately began using a Taser gun on him and continued to so, bashed his head into the broken glass on the car window, dragged him out and shoved him on the ground and stood on his head, regardless that he never physically resisted at all,  As blood streamed over his face, they handcuffed his hands behind his back, put him in their trailer, and the officers came in to laugh at him.  Eventually the police drove him to be given eleven stitches but took as long as possible, with stops to exchange casual chat with some fellow officers along the way, before allowing Anderson to use the rest room.  This is standard procedure, in case you don’t know.  Police officers think it’s funny to degrade arrested suspects by making them wet their pants.

Anderson says the drug dog did not bark or give any other indication, but the Border Patrol insists the dog “alerted” to drugs in the vehicle.  Of course, no drugs were found in the vehicle, and we have only the Border Patrol’s word that the dog ever made any indication.  Some have claimed in the past that police goad  drug dogs to make a sign when the police want them to.  Then, the police can just point to the dog as though the dog is some sort of scientific instrument with objective reliability as the predicate for their actions.  But in many cases, as in this case, no one can say the dog ever made any indication at all.

After arresting him, the police told the bloodied Anderson this would never have happened if he had just answered their questions when they stopped him.  Anderson called them on their story switch and said “I thought you said you searched my car because the drug dog hit on it.”

The United States Supreme Court ruled in 2000, in Indianapolis vs. Edmond that police cannot set up roadblocks with drug dogs to randomly search vehicles for drugs.   However, an earlier exception had been made for the Border Patrol.  The Court in 1976 decided United States vs. Martinez-Fuerte, there is an exception to this rule which allows Border Patrol the unique power to establish checkpoints for seeking illegal immigrants, allowing a secondary purpose of finding drugs.  Therefore, while ordinary police cannot set up a checkpoint with a drug-detecting dog within the Fourth Amendment, the Border Patrol is allowed to do so, and the Border Patrol is not required to have “probable cause” before using their drug-detecting dog on a vehicle.  Moreover, the Border Patrol is allowed to establish checkpoints up to 100 miles inside the United States.

There is another exception allowed for checkpoints that applies to ordinary police.  That is the checkpoints set up to find drunk drivers, which was allowed by Michigan Department of State Police v. Sitz, decided by the U.S. Supreme Court in 1990.

Anderson was pulled from his car by officers of the Arizona Department of Public Safety, tasered and bloodied by the glass the police broke.  He was then jailed overnight.  Certainly he is startled that the rights he thought he had, the rights talked about on television and in classrooms are trumped by the reality of armed uniformed police who are on a mission to stamp out crime, and who are given more and more leeway by the courts.

Who cares?  No one, apparently.  The United States Supreme Court has continued over the years to chisel away at the rights of citizens so as to make things easier for police to act with impunity.  The Supreme Court has even mused about eliminating the exclusionary rule, the “Fruit of the Poisonous Tree” doctrine, which requires suppression of evidence illegally obtained by the police.  You can imagine how illegal activity by police will flourish if that action is taken. The Congress has never given any indication it believes its citizens are at risk from police increasing intrusion.  It, like the press and most Americans, believes that American citizens are at risk from “crime,” not from the crime chasers.

Only the Bill of Rights limits the use of government power.  Police naturally push the boundaries of the permitted use of government power- always.  They think they are doing their jobs by impinging on the right of citizens whenever a criminal case might be made.  Once in a while police officers are caught red-handed lying, trumping up evidence or the like, just to make a case against a suspect the police “believes” really has it coming.  This corruption in the system is inherent where the word of police is taken and rarely can be challenged factually.  The more slack leash the United States Supreme Court gives them, the police will be able to make a few more criminal cases stick, of course, but the more diminished will be the rights of the American citizen.  The Bill of Rights becomes just a wall ornament.


The Next Drug Fad for Parents to Watch Out for

December 5, 2008

There’s a new drug fad called Snurf.

It’s not illegal. Yet. It is supposed to be a herbal remedy, and it is becoming popular with teenagers. And its use is spreading from ninth and tenth grade users to middle schoolers. It can be purchased legally over the internet with a credit card under a number of names, including “legal ecstasy.” The sales claim Snurf contains herbs like Feviza, Palenzia and De la Amazon. Unfortunately, such herbs are non-existent, and Snurf is a synthetic morphine analog.

Research on Snurf indicates it consists almost entirely of the non-herbal dextromethorphan or DXM, the active suppressant ingredient in cough syrup like Robitussin. In large doses, DXM has hallucinogenic properties and can significantly impair the user. Ingestion of too much DXM can cause impairments of the visual field, dissociation, excitement, and feelings of bodily distortion. Some online blogs describe the effects of Snurf to taking LSD (lysergic acid dyethelamide) or Ecstasy.

Thus Snurf is, in fact, legal, and it pretends to be ‘herbal”, giving it respectability to new users. What its effects are, especially when mixed with other substances, is unknown. What if someone uses Snurf along with an antihistamine? Or with alcohol? There is no telling what could happen, but the average Snurf user will not consider any of these possibilities.

DXM, the main ingredient of Snurf, acts to depress the central nervous system, but the average user does not bother to learn this, so obvious troubles may not be avoided. The side effects of taking Snurf include rashes and trouble breathing, while the most frequent complaint is nausea, all benign enough. It will probably take some tragic interaction of Snurf with some other substance before parents are alerted to the potential dangers of taking Snurf.


Cocaine penalties & federal sentencing pitfalls

September 3, 2008

Under the federal sentencing guidelines, the penalties for crack cocaine were about 100 times those for powdered cocaine.  These penalties have now been changed last November.  Then the United States Sentencing Commission made the changes retroactive.  That retroactivity has allowed and will allow approximately 19,500 inmates, mostly black, to seek reductions in the sentences they had received.  Four out of five crack defendants are black.

Crack is smoked, so it gets into the bloodstream faster than powdered cocaine, which is ordinarily snorted.  Crack therefore produces a more intense high and is considered more addictive than powdered cocaine.

Experts say the difference between the two types of cocaine do not merit the 100-to-1 disparity that was written into the federal sentencing guidelines in 1986.  Under those guidelines a mandatory minimum of 5 years imprisonment for trafficking in 5 grams of crack, less than the amount of two packets of sugar, whereas it would take 100 times that quantify of powdered cocaine to result in this sentence.

Powered cocaine was typically sold in the mid-1980s by the half-gram or gram for $50 to $100, while crack was sold as small rocks costing as little as $10.  Crack became popular in poor, largely minority urban areas, and it developed a reputation as a drug used mostly by violent, inner-city youths.  It became a “demonic new substance, “ according to Craig Reinarman, a sociology and legal-studies professor at the University of California at Santa Cruz, editor of the 1987 book “Crack in America: Demon Drugs and Social Justice.”

When crack first became popular, there was an increase in murders and other crimes associated with crack.  But the bloodshed was not necessarily the result of something inherent in crack.  Most of that violence was typical for what happens when any illegal drug is introduced and drug dealers with guns compete for new markets, according to Alfred Blumstein, a professor of urban systems and operations research at Carnegie-Mellon University.

Adding fuel to the concern about crack in 1986 was the death of Len Bias.  He was a basketball star at the University of Maryland just drafted by the Boston Celtics.  His much-publicized death made an impact on Congress.    It was blamed on crack cocaine, although months later one of Bias’s teammates testified Bias had actually snorted powdered cocaine.