Monthly Archives: July 2022

Last weeks blog post on celebrity misbehavior during depositions made the point that deponents who answer uncomfortable questions with civility, humility, and honesty have the best chance for a successful outcome.

There was, however, another lesson that could have been drawn from those same cases. For any number of reasons, critical witnesses wont necessarily be available when needed for pretrial discovery or trial.

Witnesses may die before trial. This occurred in the recent sexual assault lawsuit against comedian Bill Cosby in California, where Playboy Mansion owner Hugh Hefner died prior to trial and was thus unavailable to impeach the testimony of the plaintiff regarding security procedures in place at the mansion on the night the assault allegedly occurred. Hefners account was captured in a video deposition, which was played for the jury at a trial that took place nearly 5 years after his death.

Witnesses may plead the Fifth Amendment. At the same trial, Cosby refused to testify, asserting that a court order forcing him to do so would violate his Fifth Amendment right against compelled self-incrimination. Citing Pennsylvanias successful criminal prosecution of Cosby for sexual assault in 2018 (later overturned), Cosbys lawyers successfully argued that the possibility of future criminal proceedings against their client for other alleged assaults supported a well-founded belief that his testimony in a civil matter could be used to incriminate him. Cosbys version of events was provided to the jury by way of a deposition he had given earlier in the case, before he had asserted his Fifth Amendment rights.

Witnesses may decline to give testimony. For any number of reasons, some good (e.g., outside the subpoena power of the court), some not-so-good. The not so good justification for declining to give deposition testimony appears to be in play in the conservatorship litigation between singer Britney Spears and her father, Jamie Spears. According to news media accounts, the elder Spears refuses to cooperate in scheduling a deposition and has been a no-show for several of them.

The Spears case points up another reason why taking a deposition at the earliest opportunity can be a wise decision. The litigation process itself can be stressful and not always conducive to good behavior. Witnesses who were once willing to give deposition testimony might be so forthcoming after experiencing one, or several, adverse outcomes during the course of the litigation.

Celebrity hijinks aside, there are other reasons why witnesses might not be available for pretrial deposition of trial. We live in a highly mobile society, where people move easily from state to state to pursue new employment, live closer to family, or retire. Unless a contract provides otherwise, there is no legal requirement to leave a forwarding address with an employer or anyone else for that matter.

For these reasons, employment law attorneys Anthony Argiropoulos and Maximilian D. Cadmus at Epstein Becker Green say its important to depose potentially important witnesses early and to treat those depositions as the last chance the client might have to obtain their testimony.

According to Argiropoulos and Cadmus, important business to be handled during those depositions might include:

They also advise taking a video deposition in every case. Video depositions were once exotic expenses, reserved for complicated and well-funded lawsuits, they write. Today, they should be regarded as standard.

To paraphrase the Chinese proverb about planting trees, if the best time to depose a witness is immediately after the relevant events, then the second-best time to depose that witness is now. The opportunity to take that deposition may not come again.

Read the original post:
Depose Witnesses Early or Risk Losing Their Testimony, Experts Say - JD Supra

By Dr. Roger H. HullFor The Daily Gazette

If 100 people were asked to describe the Fifth Amendment to the US Constitution, the overwhelming majority could state it is the right against self-incrimination.

(Among those who have taken the Fifth recently is a long line of Trump acolytes, who, apparently, have forgotten 45 said, innocent people dont plead the Fifth.)

Suppose now those 100 people were asked to state the premise of the Sixth Amendment. Very few could.

Every day one reads articles about whether our 45th president should be indicted for his words and actions regarding the transfer of power following his loss to Joe Biden.

That decision will be made by Attorney General Merrick Garland.

Will Garland seek to indict a former president, something that has not been done before in our nations history?

Presumably that decision will be made (relatively) shortly.

Pundits in the press and on television comment daily on what Garland will do.

Assuming he makes the decision to indict and gets the indictment, would he, or a special prosecutor appointed by him, get a conviction?

Here the Sixth Amendment enters the calculation. As the Sixth Amendment states, every person in a criminal proceeding is entitled to a trial by jury.

Since nearly two-thirds of Republicans and one-third of independents still believe the election was stolen from Trump, a jury trial would appear to inure to his benefit.

Why? A criminal jury trial requires a unanimous decision.

Given the fact a significant percentage of those selected to serve on a jury might well feel Trumps actions were justified on January 6 and thereafter, Trump would ostensibly benefit from a jury trial.

Importantly, potential jurors are asked whether they have formed an opinion about the case they are about to hear. Trump supporters clearly have.

Would they answer those questions forthrightly? I have my doubts.

The decision, therefore, becomes a bit more complicated for the Attorney General. After all, while no one is (or should be) above the law, should the Attorney General bring charges when he is uncertain about the outcome? (Most prosecutors would not seek an indictment if they felt they could not get a conviction.)

To complicate matters further, if 45 is indicted and not convicted, will his standing among Americans go up? Presumably so. And, if that is the case, would Garland, in effect, end up enhancing 45s chances for re-election in 2024 by seeking an indictment?

On the first day of law school, students learn to argue a case both ways.

When I taught law, I went a step further: I had students argue a position orally and then write a paper espousing the opposite side of that which they had stated in their oral presentation.

The Garland/Trump scenario can easily be argued both ways.

No, I am not saying I believe 45 did not commit a crime. In fact, I believe he has committed several crimes.

Instead, the argument that can be made both ways is whether a former president, who might be a future president, has his path for re-election made smoother by an indictment on which he is not convicted and, if so, whether the indictment should therefore not be pursued.

No one is above the law, including a sitting or former president.

Yet, if an indictment but not a conviction is obtained, and the former presidents position is politically enhanced by the failure to convict, should the indictment have been sought in the first place?

Doing the right thing usually bears consequences.

In this particular case, those consequences are far higher than usual, since passions have not been this high since the Civil War.

If you were Garland, what would you do?

Dr. Roger H. Hull of Schenectady is president emeritus of Union College and president of Help Yourself Win Foundation.

Categories: Guest Column, Opinion

Go here to read the rest:
GUEST COLUMN: Weigh consequences of indicting Trump The Daily Gazette - The Daily Gazette

As our nation continues to absorb the House of Representatives' Jan. 6, 2021 Special Committee hearings, I'm constantly aware of stark contradictions between sworn witness testimony and media-based political rhetoric/commentary.

On one hand is information presented under oathinvolving serious legal jeopardy for lyingto tell "the truth, the whole truth, and nothing but the truth, so help you God," often on national television, and always with enormous personal/professional risk. On the other hand are people who refuse to say anything under oathexcept for "I take the Fifth" (i.e. the Constitution's Fifth Amendment, which affords the right to avoid self-incrimination).

Meanwhile, many in the latter group can't say enoughoften while being paidto audiences, toothless TV interviewers and pliant print outlets (when the risk of perjury doesn't exist).

Should Americans infer anything with respect to this stark difference?

Read more:
Who is telling the truth? | Letters To Editor | mtexpress.com - Idaho Mountain Express and Guide

The emphasis must be not on the right to abortion but on the right to privacy

Ruth Bader Ginsburg, late Supreme Court justice

Hello Downriver,

In the context of whats been happening in our country these past several years and more importantly, these last several weeks, two themes continue to resonate with me.

A right to privacy and minority rule.

Now, Ive written about both in the past, but current developments call for a revisit.

In its most recent rulings, the conservative-dominated Supreme Court has determined that theres no such thing because the phrase doesnt exist in the Constitution.

Their argument is that as supposed originalists if something doesnt appear in the document, it doesnt exist.

That if the Founders didnt include it when writing the Constitution, then we cant add it later.

Except.

Except that the right to privacy is found throughout the Bill of Rights; indeed, its the very foundation of those first 10 Amendments.

So, to ignore that is to either be blind or simply refuse to accept the obvious.

And if I get it, why cant they?

Answer: Its not convenient nor conducive to supporting their conservative agenda of rolling back the rights of Americans.

Think Im off base?

Well, consider the words found in the Bill of Rights (the first 10 Amendments).

In the First Amendment, the Constitution establishes the concepts of freedom of religion, freedom of speech, freedom of the press, the right to assemble and the right to complain.

Whats important here is that freedom of religion and speech inherently imply a personal right; a right to have private beliefs that may not be infringed.

That a person has the right to have a private relationship with her/his faith; a right to personal, private thoughts that can be spoken aloud.

Neither right has to do with the collective mind; only the individual whereas the rights of the press and assembly in fact do deal with collective acts.

This means that Founders understood the concept of privacy and the need to protect private thoughts and beliefs.

The Second Amendment has long been construed to mean that individuals have a right to bear arms.

(Even though the Amendment doesnt say that at all.)

So, this is also a privacy issue.

The Third Amendment is specific to the time of the Constitutions enactment which came on the heels of British occupation of the colonies.

No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

This Amendment clearly intends that a persons home is a private dwelling that cant just be invaded by an invading army.

The Fourth Amendment is by far the most revealing of the 10 in that it specifically says the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated unless theres a search warrant.

This right simply wouldnt apply if we didnt have a right to privacy; a right that cant be circumvented without the issuance of a court-ordered search warrant.

The Fifth Amendment says a lot, but it is most well-known for its protections against self-incrimination. But equally important, it also says we cant be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

This clearly means we enjoy private lives and possess private things that cant just be taken away without due process.

Private equals privacy, doesnt it?

Skipping ahead to the Ninth Amendment (six, seven and eight have to do with criminal and civil trials and the issuance of bail and imposition of punishment), we find that the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

In other words, just because every possible right isnt spelled out in the Constitution doesnt mean that right doesnt exist which is exactly contrary to the recent ruling by the Supreme Court in overturning Roe.

In its majority opinion, the conservative justices said the opposite; that if a right wasnt spelled out 234 years ago then it doesnt exist.

Yet the 1oth Amendment reinforces the Ninth in refuting that point: The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

In short, the ultimate right of each of us to live as Americans resides within each of us as personal, private individuals.

It resides in those unalienable rights Jefferson wrote about in the Declaration of Independence we celebrated on Monday.

It means we inherently possess a right to be private individuals, with private, personal beliefs, a private right to self-determination and therefore an accompanying right to privacy.

Self-determination.

Thats a phrase some may not be familiar with, but Id argue youre very familiar with its usage in everyday life.

For example, how many times have you heard a parent, teacher and even politicians encourage young people to be all they can be?

Heck, it even became a recruitment pitch for the U.S. Army.

Likewise, how many women have told girls that theres no limit to their futures?

How many adults have insisted that a child could one day grow up to be president of the United States?

Each of those is an example of how our society routinely inspires our young to pursue careers of their choice, to follow their dreams.

In short, invoke the very idea of self-determination.

Yet, in overturning Roe, the Supreme Court has now placed a limit on that pursuit; that once a girl reaches child-bearing age, certain goals and dreams may no longer be an option.

That should a girl as young as 12 become pregnant, there are no choices anymore; self-determination has been corrupted into a state-ordered determination.

Its as if Platos Republic has come to pass, with each young girl and woman now slotted into a role dictated by government fiat.

Goodbye self-determination.

Yes, yes, Im no constitutional scholar, but I do have a working, rational brain and can read English and decipher common word usage.

So, whats the problem with the six majority members of the Supreme Court when it comes to privacy and a right to self-determination?

Oh, thats right, its not about language and law and the Constitution for them its about ideology and partisan politics.

No wonder the high court has such low ratings, and is skirting with becoming illegitimate and ignored.

Next: Minority rule how it went from a Founders compromise to todays abomination.

Craig Farrand is a former managing editor of The News-Herald Newspapers. He can be reached at cfarrandudm@yahoo.com.

View post:
Supreme Court is wrong privacy is in the Constitution - Southgate News Herald

A conservative group called the America Project that boasts Donald Trump loyalists and big lie pushers Roger Stone and Michael Flynn as key advisers, has begun a self-styled election integrity drive to train activists in election canvassing and poll-watching, sparking fears from voting rights watchdogs about voter intimidation.

Patrick Byrne, the multimillionaire co-founder of the America Project, has said he has donated almost $3m to launch the drive, dubbed Operation Eagles Wings, with a focus on eight states including Arizona, Michigan and Pennsylvania, which Trump lost, plus Texas and Florida, which he won.

The drive was unveiled in late February at a press event where Byrne touted plans to educate election reform activists to handle election canvassing, grassroots work and fundraising to expose shenanigans at the ballot box in what has echoes of Trumps false claims that the 2020 election was rigged, and could become a sequel to those charges.

Byrne, for instance, has said the operations mission is to make sure that there are no repeats of the errors that happened in the 2020 election, and stressed the need to protect the voting process from election meddlers who care only about serving crooked special interest groups that neither respect nor value the rule of law.

But voting rights advocates have voiced sharp criticism of Operation Eagles Wings, calling it a sham, given the roles of Stone, Flynn, Byrne and others, and warning that it could lead to voter harassment at the polls and suppress legitimate votes.

To lead the fledgling operation, the America Project recruited Tim Meisburger, an ex-Trump official in the US Agency for International Development: Meisburger left the agency abruptly under a cloud in mid-January 2021 after a video surfaced of him falsely informing staffers that the Capitol attack was mostly peaceful except for a few violent people, and that several million people were demonstrating peacefully for election reforms.

Overall, the America Project has boasted that its total funding is greater than $8m, including donations from Byrne, the ex-chief executive of Overstock.

Byrne declined to respond to queries from the Guardian about what roles election canvassers were being trained to take on, and what the operation had done to date in its targeted states.

Voting rights watchdogs say the new election integrity operation has an Orwellian quality, and poses dangers to voting rights and fair elections given the people who are so prominently associated with it.

Michael Flynn and Roger Stone have repeatedly proven themselves to be enemies of democracy, Sean Morales-Doyle, the acting director of the voting rights and elections program at the Brennan Center, told the Guardian.

He added: While it is not clear what exactly they will ask their election reform activists to do, their claimed pursuit of election integrity is a sham, aimed instead at undermining public faith in our elections and setting the stage for future attempts to subvert the will of the people. The conspiracy theories they espouse would be laughable if they werent so dangerous.

Flynn, a retired army lieutenant general who served briefly as Trumps national security adviser, and Stone, a longtime Trump confidant and self-proclaimed master of political dirty tricks, were in the vanguard of Trump loyalists promoting falsehoods about Joe Bidens 2020 win.

In mid-December 2020, for instance, Flynn suggested on the conservative network Newsmax that Trump could use the military to rerun the elections in several key states that Trump falsely claimed were rigged, and a few days later he attended a White House meeting with Trump, Byrne and other allies, where more wild schemes were discussed.

Stone spoke at a pro-Trump rally on 5 January and the next morning was at the Willard hotel, which Trump loyalists had used as a base for plotting ways to overturn the election, accompanied by several Oath Keeper bodyguards, some of whom participated in the Capitol assault and now face criminal charges.

At the rally on 5 January, Stone lavished praise on Trumps allies who were there protesting, calling it a historic occasion, because were mad as hell and we arent going to take it.

Flynn and Stone received pardons from Trump after they were convicted as part of the Russian 2016 election meddling investigations, including charges of lying to the FBI in Flynns case, and obstruction of a congressional committee in Stones.

Not surprisingly, the Trump loyalists were subpoenaed by the House panel investigating the January 6 assault on the Capitol by hundreds of Trump supporters, but according to reports Stone and Flynn each repeatedly invoked their fifth amendment right against self-incrimination.

In a video clip of a Flynn deposition that the House panel played last week, Flynn was even seen pleading the fifth when asked if he supported the lawful transfer of presidential power, and if he thought the Capitol violence was wrong.

When Byrne first announced Operation Eagles Wings, Flynn and Stone were introduced as special advisers. If I didnt think this had a chance to succeed I wouldnt have gotten involved, Stone said.

Theres little doubt Byrnes checkbook can bolster the fledgling election operation.

Byrne, who falsely claimed that the 2020 election was rigged, and wrote a book entitled The Deep Rig, was the lead financier in tandem with the America Project to the tune of $3.25m of a controversial audit last year of Arizonas largest county that Trump was banking on to prove fraud but that confirmed Biden won.

The Byrne-backed Eagles Wings operation has touted plans to offer commentary on current election policies to ensure Americans have access to fact-based truths about the election process.

Before launching its new operation, the America Project boasted that last year it recruited 4,500 volunteers to monitor polling stations during the gubernatorial race in Virginia where Republican Glenn Youngkin defeated Democrat Terry McAuliffe, a former governor.

In Virginia, the America Project has forged ties with Virginians for America First, a local group started by Leon Benjamin, a black pastor who in 2020 lost a race for a House seat by a whopping 23 points. Benjamin, who is running for a House seat again this fall, would not concede, citing potential voter fraud, in an echo of Trumps bogus fraud claims.

Last fall, Byrne and Flynns brother Joe, the president of the America Project, attended a fundraiser in Richmond, Virginia, for Benjamins group, to coincide with its release of a report calling for new curbs on voting, including ending early voting and absentee voting, and requiring voter IDs.

Besides their roles with Eagles Wings, Flynn and Stone have been featured speakers along with rightwing pastors at ReAwaken America, which involves revival-style rallies in many states that have spread falsehoods that Trump lost due to fraud, and a distorted view of Americas separation of church and state.

At a ReAwaken rally last November in Texas, Flynn claimed America should have just one religion prompting heavy criticism from religious leaders and others.

If we are going to have one nation under God, which we must, we have to have one religion, Flynn said. One nation under God, and one religion under God, right?

Adam Taylor, the president of the Christian social justice group Sojourners, told the Guardian that Flynn has a warped understanding of religion and American history.

Similarly, criticism is mounting in Republican quarters about the roles of Stone and Flynn with their latest election integrity drive.

Veteran Republican operative Charlie Black, who once was a lobbying partner of Stones, noted that Flynn used to have one of the highest intelligence jobs in the government, but now he spouts conspiracy theories with no evidence to back them up. So does Roger, but he has done this for a while. Read his books for examples.

View post:
Its a sham: fears over Trump loyalists election integrity drive - The Guardian US

Sign up for Dereks newsletter here.

American violence is resurgent. Gun murders rose to their highest figure on record in 2020, the last year for which we have complete data. While violent crime is rising, Americas police departments are struggling more than ever to bring the perpetrators to justice.

In the 1960s, more than 90 percent of all homicides were cleared by police, with an arrest or the identification of a dead suspect. But the clearance rate has declined in each of the past six decades. In the most recent data available from the FBI, the clearance rate hit an all-time low of just over 50 percent. That means that about half of all murders in the United States today go unsolved.

On the latest episode of my podcast, Plain English, I spoke with the crime analyst Jeff Asher to understand whats driving the long-term decline in the clearance rate and why the police seem so bad at solving new murders. This conversation has been edited for clarity and brevity.

Derek Thompson: What is the clearance rate?

Jeff Asher: When the FBI calculates clearance rate, the denominator is murders in a given year. The numerator is the number of murders that were solved either by arrest or by exception. Exception means theyve identified the murderer but for whatever reason, they cant arrest that person, because its murder suicide, or the person died a decade ago, or the killer is already in prison in another state.

Thompson: Youd agree that the fact this number has declined from 90 percent in the 1960s to 50 percent today is a trend thats worth paying attention to, right?

Asher: Absolutely. In the last two decades, when we have no reason to suspect that theres been any change in how the datas reported, we still see a decline. Its a real trend that police agencies are reporting fewer and fewer murders being cleared each year.

Thompson: Lets get into the reasons. Was the clearance rate in the 1960s so high because mid-century police were so good at their jobs? Or was it because of something else?

Asher: Most people agree that you should not rely on the 1960s dataor, really, much of the 1970s data. Hundreds of cities were reporting a 90 to 100 percent clearance rate, but these places probably werent solving anywhere close to this many murders.

Thompson: Ive seen statistics showing that before the 1970s, it was very common for police agencies dealing with lots of murders to claim theyd solved practically all of them. Today, the number of agencies claiming that is basically zero. Were the 1960s numbers a total fabrication because police were throwing innocent people in jail, or because they were making up statistics to report to the FBI?

Asher: Its probably both. In the pre-Miranda erathe 60s, 50s, 40spolice departments had a lot less scrutiny. It's hard to say what percentage of their arrests were bad arrests, or what percentage of them were bad exceptions. But those numbers are just so implausible.

Thompson: You just mentioned a second factor, which is the 1966 U.S. Supreme Court case Miranda vs Arizona. The Supreme Court ruled that the Fifth Amendment guarantees citizens certain rights when theyre being questioned by police. This led to the famous norm of Miranda rights: You have the right to remain silent. How important is Miranda in explaining the declining clearance rate?

Asher: Miranda improved the rights of many people who may or may not be innocent. You can see that if you look at the years before Miranda, you have a 90 percent murder clearance rate, and then after Miranda, theres a 20 percent decline in the national clearance rates. So it was clearly an important factor. But if it were the only factor, you wouldve expected the clearance rate to fall off a cliff and stay very low. Instead, we saw a gradual decline over 60 years.

Thompson: I think a lot of people who learn that police solve fewer and fewer murders every decade will say that police are simply bad at their jobs. But when we put your first two explanations together, it suggests, again, that a lot of these mid-century convictions were bogus, or attained by unethical practices, and the decline in clearance conceals an increase in police ethics. Is that a fair interpretation?

Asher: I think thats fair. I think that when we talk about this problem, we really have to look at it in two ways. One is the 60-year decline in clearance since the 1960s. That has a lot to do with false statistics and Miranda. The second is the 30-year decline from the 1990s that were currently experiencing. Thats more complicated.

Thompson: This brings us to explanation No. 3: How much of this is about guns?

Asher: In the 1960s, about 50 percent of murders were committed with guns. Today, almost 80 percent of murders are committed with guns. And the share of murders committed by firearms has crept up at a nearly identical rate to the steady decline of murder clearances. Correlation does not equal causation, but if you plot the two together, you see a very strong correlation in the last 40 years.

And the reason is that firearm murders are much harder to solve. They take place from farther away. You often have fewer witnesses. Theres less physical evidence. Theres a great retired LAPD detective, John Skaggs, a character from the terrific book Ghettoside, who describes ground-ball murders. Like an easy ground ball in baseball, these are self-solvers. The police walk in and they find the husband with the bloody knife in his hand, and the spouses body is below him. The police dont do anything to solve this; the case solves itself. Most of these self-solvers are non-firearm murders. So a higher share of gun violence can lead to a lower clearance rate.

Thompson: I want to move on to explanation No. 4, which is higher standards from district attorneys and juries. Is it possible that in an age of DNA evidence and true-crime podcasts and CSI shows, juries expect more physical evidence, which raises the bar for detectives? Has the evidence standard increased in the last few decades?

Asher: I think this theory makes sense. I want to be clear that the clearance rate has nothing to do with whether the DA accepts the charges. But prosecutors want to win. And if theyve been refuted by jurors because the bar is higher, it would make sense that [their reluctance gets passed down to] the police. Cops are less likely to make an arrest if they dont think they have the evidentiary base that the DA will accept. That said, we dont have great data to know for sure if this is a big deal.

Thompson: Explanation No. 5 is racism. Ive seen evidence that the clearance rate for Black victims in the last few decades has gone down while the clearance rate for white victims has gone up. That is, the cops are better at solving crimes when the victim is white, and as Black Americans make up a larger share of murder victims, the police solve fewer crimes.

Asher: There is obviously racism in the criminal-justice system and in policing. But are police getting more racist every decade, for 60 years? I dont know. We dont have clearance rates broken down by race as clearly as you suggest. Its true that there has been a huge surge in Black shooting victims since 2020. That might help explain some of the decline last year. But it doesnt explain decades worth of declines.

Thompson: How do you feel about this explanation: As Black victims of gun murders have increased as a share of all gun-murder victims, the poor relations between Black Americans and police officers have made it harder for the police to get evidence about who might have committed these murders. And therefore, the impression, often accurate, of police being racist feeds into Black Americans being less responsive to and less cooperative with police, which then feeds into a lower clearance rate for Black victims of gun homicides.

Asher: Thats the entire thesis of Jill Leovys Ghettoside. I think that its certainly plausible. There are certain neighborhoods where the police just dont solve murders. In New Orleans, 90 percent of murders in the French Quarter are going to be solved. A mile away in the Seventh Ward, maybe 15 percent of those cases are being solved. The geography of murder is very important. Certain communities dont trust the police. They dont trust the state. They take things into their own hands. And it sort of creates a cycle of violence thats very difficult to interrupt, because you dont have that initial layer of trust in the police to have a monopoly on violence.

Thompson: I wonder if some police are just not doing their jobs. Is it possible the quality of detective work is just much worse than it used to be? Police today spend much of their time clearing homelessness or responding to mental-health crises in downtown areas. Thats not being a detective. Thats being a social worker with a gun in your pocket.

Asher: This isnt something we can measure in a satisfying way. But something weve seen is police numbers dwindling or flatlining while violence has increased. Lets say you have 30 detectives who are investigating 150 murders. Thats five murders per detective, which is the standard. But if violence doubles and some officers leave to retire or go work in the suburbs, 250 murders among 25 officers is 10 cases per person. Now youre going to have a harder time solving murders. And I think that youre probably seeing some of that, especially since 2020.

Thompson: I count six possible explanations for the decline in the clearance rate. One: The 1960s numbers were bunk. Two: The effects of Miranda. Three: Guns. Four: Higher standards from juries and DAs. Five: Racism and distrust between police and Black communities. Six: Fewer and overextended police officers. With the understanding that crime data is imperfect and that these are all hypotheses, which one explains most of the decline in clearance over the last 30 years?

Asher: Its the guns. The nature of murder in America is changing in ways that we dont really talk about enough. Youve got a bunch of cities where firearms make up 80 to 90 percent of murders today. That is the main driver. Guns makes murders much harder to solve, and it leads to lower clearance rates everywhere.

See the article here:
Why Are the Police So Bad at Solving Murders? - The Atlantic

Police took no chances when an armed intruder barricaded himself in the home of an innocent bystander in McKinney, Texas. Following a seven-hour standoff, officers launched a shock-and-awe raid that ended with the suspects suicide. Then they closed the case without paying for property damage.

The city told homeowner Vicki Baker that she was out of luck. So did her insurance company, which covers natural disasters but not deliberate police actions. The broken windows, smashed doors, punctured walls, tear gas-stained fabrics, and flattened backyard fence were her problem even though Baker had nothing to do with the crime and no connection to the intruder other than hiring him in the past as a handyman.

Normally the judicial system sanctions such shirking of responsibility. Federal courts have said for decades that forcing law enforcement agencies to pay for what they break in the course of their duties was legally impossible. But Baker tried anyway. She filed a constitutional lawsuit with representation from our public interest law firm, the Institute for Justice, and scored an underdog victory on June 22.

For the first time in U.S. history, a jury awarded a property owner damages under the Fifth Amendment's takings clause, which requires the government to provide just compensation when it takes property for public use. Now, in at least one jurisdiction, the government will have to follow the same rule as schoolchildren: Clean up your own mess.

Author Robert Fulghum imagines the implications in his classic essay, All I Really Need to Know I Learned in Kindergarten: Think what a better world it would be if all governments had a basic policy to always put things back where they found them and to clean up their own mess. The courtesy seems obvious to Baker, who gave the police permission to enter her home but not to destroy it.

The ordeal started on July 25, 2020, when a former handyman showed up with a 15-year-old hostage and took control of the property as a hideout. Baker was not inside. She had moved to Montana and was in the process of selling the home. But her adult daughter, who was helping to get the property ready, found herself caught in the middle.

After getting permission to leave under the pretext of needing groceries, the daughter called Baker, and together, they called the police. The intruder later released his hostage unharmed, but Bakers house sustained nearly $60,000 in damages. After hearing the facts, the jury said she was entitled to the full amount.

The decision followed a favorable ruling in the U.S. District Court for the Eastern District of Texas, where Judge Amos Mazzant III picked apart the citys arguments for why it should not have to compensate Baker. Essentially, the judge ruled that when a city enforces its laws in the public interest, then the public should share the costs of intentional, foreseeable damage. The full burden should not fall on one unlucky bystander.

The courts were not so kind to Leo and Alfonsina Lech when an armed shoplifter randomly chose their Colorado home for a police standoff in 2015. A SWAT team left the property uninhabitable. But when the Lechs sued for damages, the 10th U.S. Circuit Court of Appeals invented a special Fifth Amendment exemption for the police, and the Supreme Court declined to consider the case.

Shaniz West also got nothing in Idaho after officers bombarded her empty house in 2014 during a search for her fugitive ex-boyfriend. And the Jacksonville Sheriffs Office initially told Robert Vansickle no in Florida when he sought compensation for property damage following a 2021 police standoff in his neighborhood.

Vansickle shamed the police in the media until local officials relented and paid for repairs. Baker needed a lawsuit and two years of legal wrangling to get the same result. Yet payment for intentional, foreseeable damage should be automatic.

The Fifth Amendment is clear: Private property shall not be taken for public use without just compensation. Even a kindergartner can understand the logic.

JeffreyRedfernis an attorney, and Daryl James is a writer at the Institute for Justice in Arlington, Virginia.

View post:
Texas police destroy home, then try to leave without paying - Washington Examiner