Inmates with Mental Illness

Here is a link to a report on a case in California regarding prison inmates with mental illness. I have written two articles on this issue previouly. If you haven't read them, check them out (below) and then take a look at this article:
http://clearinghouse.wustl.edu/detail.php?id=573

Until we fully fund mental health care in the community and stop using our prisons as warehouses for people with mental illness, this will only get worse. If the goal is fiscal efficiency, highest best use of funds, etc., then we must fix this problem! It is expensive to keep anyone in prison. The cost of incarcerating people with mental illness is astronomical. If we fix this problem at the roots - with adequate funding for community mental health - we will save billions of taxpayer dollars.

Prison now, instead of treatment

Read this article:
http://www.wrdw.com/home/headlines/52074617.html

This is yet another of millions of examples of people with mental illness going untreated and ending up in prison. Our Mental Health "system" is failing miserably. Had this woman gotten treatment, these children would not have had to go through what will certainly be the most horrible experience of their lives.

I Don't Trust the Machine, Either, Barney.....

Anyone not living under a rock in the Columbia, SC area is well aware that Fifth Circuit Solicitor Barney Geise was arrested for Driving Under the Influence earlier this month. He refused the Datamaster test, wasn't sure if he could get a blood test or not, swore he'd resign and generally talked himself blue in the face, on camera, at the station. His license was automatically suspended for his refusal to take the Datamaster, but he received a restricted license, and applied for an administrative hearing. He pled Guilty to two lesser included charges, and the latest word is that, as I predicted on several forums, the officer failed to appear for the administrative hearing, meaning Barney has his full driving privileges back mere weeks after refusing to take the Datamaster test. I have watched the video, and frankly, I'm not convinced he was DUI. Having seen Barney in court on a number of occasions, his mannerisms and demeanor don't look terribly different, though I have to admit that some of the things he says are downright pitiful, and the fact that he talked almost nonstop indicates he wasn't exactly dead sober. General stupidity behind the wheel is another issue altogether, and though highly dangerous, we've not found a way to make it illegal yet. I might be in favor of prosecuting him on a charge of it if it were, though.

I take issue with the folks who are assuming that the reduction of charges was solely due to his political position. It wasn't a very strong case factually. That so many assume he was guilty of DUI based solely on the fact that he was arrested and charged is part of what's wrong with our system. He isn't the only one for whom the officer didn't show up for the administrative hearing, either. That happens all the time. That Barney is cleared legally from this is not troubling to me in the least. Neither is the fact that he is now in serious hot water politically, mainly because he displayed incredible stupidity in more ways than I can count, but also because he can't effectively argue to juries anymore.

Has Geise done a good job as Solicitor? I think it is arguable, from a citizen's point of view, that no one really knows. What are the standards? "Tough on crime" is the most likely response if you ask citizens how they judge a Solicitor. How exactly is a Solicitor judged as to whether he is tough on crime or not? High profile cases won or lost? How often they seek the death penalty (and get it)? How often cases get overturned on appeal for prosecutorial misconduct? Whether they refuse to prosecute cases for political or personal reasons? Whether they've been caught illegally recording defendants talking to their attorneys? How many times they've been arrested themselves? It is a sad commentary that we have to consider the last few at all, but circumstances in the midlands seem to dictate that we do just that. But the real questions remain: Is Geise a good Solicitor or not? If so, can he continue to be?

I am not sure whether Barney is a good Solicitor or not. If good means managing the Solicitor's office in a way that basically forces an understaffed office to undermine the entire discovery process by omission, neglect and delay (as opposed to blatantly unethical deliberate withholding of evidence), then yes, I would say he is very good. Is he different from any other Solicitor in SC in this regard? No, and we can't really expect much else when the entire judicial system is grossly underfunded, from police to solicitors and indigent defense to court staff, bailiffs, judges and clerks. If good means having really smart assistant solicitors who have a knack for trial work and care about what they're doing, then again, I would say he is very good. He's won some high profile cases, and lost some. He isn't known for seeking the death penalty, but I've not gotten the impression he avoids it, either. I haven't kept track of how many cases from his office get overturned on appeal due to something he or one of his assistant solicitors did wrong. I doubt it's more than the number of successful PCR's claiming ineffective assistance of defense counsel, though. Those who know what decisions he may have made based on political and personal connections aren't talking, as far as I know. In general, I'd say Geise is not significantly better or significantly worse at the job of Solicitor than any other, not only in SC, but across the country. Now, the question is: Can he continue to "be" whatever he was prior to this arrest?

I think not. Not because he was arrested - the evidence wasn't there to convict him so he's innocent of that charge. Not because so many detractors think just being arrested is tantamount to being guilty and foolishly say so. Not because he was out alone with a woman not his wife late at night out of town leaving a bar - for absolutely no good reason at all (at least no moral one).....but because he has admitted that he knows good and well that a major prosecution tool is simply unreliable, despite having argued vehemently in its defense in Court. He lied to every jury he ever argued a Breathalyzer or Datamaster case to, and now we all know it. Will jurors believe him when he looks them in the eye and tells them... well.... anything?

Geise was there - he was accused - he was scared. I'm not convinced that his mental and physical faculties were appreciably impaired by the consumption of alcohol. Several folks I've talked to have disagreed, some quite adamantly, and think he WAS appreciably impaired. As a former police officer AND criminal defense attorney, I have to agree it's arguable either way - we don't see him standing or walking in the video, which could have told us a lot. But he knew what the Datamaster does, and doesn't, do. The truth came out - as it often does when people don't have time to think through the political implications of statements made. In this case, in the process of making a decision that cannot be delayed. Geise cleared up a big question - the question of how Solicitors can so wholeheartedly believe in the Datamaster when they all know how it operates. The answer is "they don't." Thank you , Barney, for letting us know that. Every law enforcmeent officer and prosecutor in the state is furious that you said this on video. But don't feel bad - it's easy to rely on Datamaster results when it isn't you being tested. Many of my officer friends want to smack me when I talk about the flaws in the Datamaster, but when I remind them that my opinion in this regard means that I believe the most important evidence is what they see on the side of the road, most have to agree that a good officer's judgement, based on what happens in the traffic stop itself, is the best indication of whether a particular person should or should not have been driving, which is why we don't have or require roadside breath tests, and why we require that a person be already under arrest and charged with DUI before the test is offered. The test is secondary, after the fact, and when they refuse to take it, the case moves right on through. The breath test has never been, and should never,be, the best evidence for a conviction. If only the jury could see what the officer saw.....but back to that later.

Mind you, the Datamaster does what it's supposed to, most of the time - it measures breath alcohol content then mathematically converts it to BAC. The problem, as every defense attorney will tell you, but until now prosecutors staunchly refused to admit, is that the number it spits out may or may not be the suspect's actual BAC. The number the Datamaster uses to do its math is based on the average blood/breath ratio, but the actual ratio of the person being tested can be far enough from the average to make a significant difference in the results. I'm not against the Datamaster itself, but I am against people assuming the results are correct, or that the results reflect the effect that alcohol has had on the individual in any predictable manner. Studies, of course, have shown that a typical person's faculties are probably impaired at .08 or higher. Probably isn't certainly, and not everyone is typical. Do you know what your personal blood/breath ratio is? Are you sure it's average? Would you trust your fate, under arrest, on an assumption that it is? Barney knew the results could be higher than his actual BAC, and wasn't willing to risk the damage that would be done by an incorrect reading. Many will say he refused because he knew he would register above the limit. Are you sure? Have you watched the video? Reasonable minds can differ, but I doubt Barney had reason to think he was significantly over the limit, if at all, unless he's a closet alcoholic and knew he would register something ridiculous like .22 despite his appearance. Regardless of his motivations, his words are clear, and he can't take them back no matter how hard he tries. Some people can barely function with a .07 and I've personally seen a suspect register over .30 and still walk and talk (though not well). I don't want impaired people behind the wheel any more than anyone else, but a conviction for DUI is a very serious matter, and not everyone who is arrested committed the crime. So, how do we deal with this?

We deal with this by videotaping EVERY traffic stop, ALL sobriety tests, AND the interaction at the jail. Period. Every vehicle driven by any officer with the authority to make a traffic stop must be equipped with proper video equipment maintained in operating condition and deployed every time a stop is made. Prohibit the administration of sobriety tests unless a video is in place and operational. If the officer makes the stop for public safety and doesn't have operational video, he has to wait until video is there to do sobriety tests, or make the arrest and then do the tests at the station, or not at all, if the suspect is kneewalking drunk and none are needed. As an officer, I would rather make a case that then gets dismissed than let the person drive on to possibly hurt someone. As a defense attorney or investigator, I want video. As a prosecuting officer or prosecutor, I would want video. Everyone wins. The cost? That's easy - add another $200 to the fine for 1st offense DUI that goes into a statwide fund to issue grants to departments in need of additional funds for camera purchases and maintenance - that should cover it.

We must keep in mind that officers have to make a judgment call in close cases, and that the attorney(s) or jury disagree(s) is not necessarily a reflection on officers' general judgment or skill. People get arrested for DUI who are not guilty of it, and some people are found not guilty by juries for reasons other than the merits of the case. Video would eliminate the vast majority of cases from the docket where the defendant is either clearly impaired, or not impaired, or not clearly impaired. It would reduce misplaced reliance on "per se" laws that really aren't, and on the questionable numbers that come out of the Datamaster. Show the jury the person, at the scene AND at the station. Ask them to follow the officer's instructions and do the sobriety tests themselves, preferably with the lights in the jury room out and a flashing light substituted. Ask them if the person on the video is someone they would want driving towards them and their family on a dark, rainy night. Let's look at the real issue, which is what condition the defendant was in when driving, not rely on questionable numbers from a questionable chemical process with a questionable mathematical basis.....

I don't trust the machine either, Barney...I trust the officers, and I trust the juries. Do you?

An earlier article here addressed some of the issues associated with the lack of standards in American society. Today, I came across a well-researched, tactfully honest article regarding one aspect of a larger problem, and the conclusion is clear - BAD PARENTING is rampant, and its damage is profound and lasting. This article addresses education gaps, but I beleive the concepts can be applied to other issues, including work ethic, sense of personal responsibility, duty to community and country and attitudes toward morals, childbearing and marriage. The article is wonderful:
CNN "Commentary: What Parents can do for Their Kids" by Ronald F. Ferguson
http://www.cnn.com/2009/LIVING/07/17/ferguson.education.parents/index.html

Quick update and kudos to a good boss

I've been remiss in posting the last couple of months. Never fear, parts II and III of the "wrong people in jail" series are forthcoming. In the meantime, though, I've noted a marked increase in violent crime in Columbia and in SC in general. The economy is trashed and our governor is a borderline psychotic, philandering joke (which is sad because I admired his fiscal policies). North Korea is emerging as the threat many of us predicted they would be, we're mired in wars and aid projects overseas while we implode at home via the utter breakdown of societal standards and mores. No one seems to recognize the distinct possibility that we may all be required to speak Chinese in the not too distant future, either....

All of that to say that in these social and economic hard times, even the best (like us) are having a tough time. Despite an upturn in the criminal defense side of the business, domestic cases are way down. But instead of cutting staff in a panic, my boss has listened to wise counsel and instead redirected resources to marketing and to upgrading communications and other equipment. From what I have learned, these responses to a tight economy will result in the company emerging not only intact, but strengthened. Other companies cut staff, increasing workload and fear of "the axe" in remaining employees. They cut supply and equipment expenses, making it even harder for the remaining staff to complete, never mind excel in, their newly-increased workload. They rush to reduce advertising and marketing initiatives, which in any small business is all but a death knell, and in a tight economy IS a death knell. While these folks are steadily and repeatedly shooting themselves in the foot despite all advice to the contrary, our boss has heeded the advice of successful small business owners:

In a tight economy, cut staff only as a last resort, unless you have unproductive people or positions you needed to cut anyway. Take a long-overdue (for most), comprehensive, objective look at your marketing plan and find ways to make more of the budget you already have - redirect, but don't cut. Talk to your staff - be realistic, but don't try to frighten them into working harder. If you've been a good boss all along, and you're honest with staff, they will want to help, and it will show. We're in a tight spot right now, but I am confident that my boss is doing all he can, and in turn, staff are pitching in and working as a team to weather this economy.

Thanks, boss, for being a dedicated owner committed not only to our profession and the clients who depend on us in some of the most difficult times in their lives, but to the company and the people who work for you. Kudos!

We're Putting the Wrong People in Jail, Part I

There is little question that well prior to the current economic crisis and accompanying budget cuts, Corrections was underfunded, understaffed and overcrowded with prisoners. Prison administrators were already dealing with overcrowding, working on early release programs for non-violent offenders, and alternately begging legislatures for more money and defending themselves against lawsuits by prisoners and pressure from legislative audit/study panels. Many administrators made solid arguments in defense of increased spending, changes in sentencing laws and guidelines, and regulations on parole and other early-release programs. No matter how much sense these arguments made, politicians, who were the only ones in a position to make changes, could not listen because they answered to the voters, not the administrators. Meanwhile, the public adopted the perception that crime was increasing - whether this perception was supported by the statistics is irrelevant - the pressure on legislators and adminstrators wasn't based on facts, but on public opinion. Generally, the public's answer for rising crime has been "lock 'em up and throw away the key.' Legislators were more than happy to sponsor bills to create new crimes, increase penalties and reduce good behavior and other sentence-reducing options. Any legislator who had the guts to oppose such measures was labeled "soft on crime", a death knell to any political career. A wise administrator, if he wished to keep his job, would at some point acquiesce on important issues to remain in step with what the politicians wanted - they waxed eloquent about being tough on crime and on criminals, and we retained the problem at hand, only with no one willing to approach the matter with common sense, informed by facts as opposed to emotional reactions to individual cases. As a criminal defense investigator, I often wonder what will become of defendants who get convicted or plead guilty. I see a great deal of inequity in sentencing, but that is an article for another day. I see some of the most violent, dangerous criminals, and others who pose little or no real danger to society. Most end up in prison, and I can't help but wonder what needs to be done to make sure people who should be in prison go there and stay, and the rest undergo some other type of pubnishment and/or supervision. Since prisons are undeniably overcrowded, and funding is being cut drastically, prison overcrowding will become worse, and I dread seeing the politically-based "solutions" that neither address the underlying problems nor adequately protect the public, nor protect the rights of prisoners (that's that whole "pesky" Constitutional Rights issue people so readily ignore). Since I am neither a politician nor a prison administrator, I will happily provide my opinion on one aspect of the prison overcrowding problem: We are simply putting the wrong people in prison to begin with. In this and subsequent articles, I will address three groups I believe fall into this category: people with mental illness; people convicted of marijuana-related crimes; and juveniles.

Part I: People with Mental Illness

Let me start with a caveat, lest my comment section be filled with vitriolic responses from crime victims, law enforcment officers and others who work to put people in prison when they've victimized another human being: I am the first to condemn the practice of excuse-making in individual cases, and I recognize the legal standards which must be met in order for an insanity defense to be properly applied in individual cases - I am not arguing that any individual should or should not be in prison. Instead, I propose that we look at the issue systemically, and ask (and hopefully address) the obvious questions that arise. I hope you will see how the politicians of the 60's and 70's pulled off what is arguably one of the most devious misdirections of public funds ever perpetrated...

A little history is in order (that whole "facts" thing, you know). In the 60's and 70's a huge human rights movement came to fruition. For years, a fight had been underway to get the public, and therefore legislators, to recognize, condemn, and change the deplorable conditions and inhumane commitment standards in state-run mental institutions. Their concern was well-founded, and change was indeed needed. People with mental retardation, other developmental disabilities and mental illnesses were referred to as "imbeciles", even in supreme court decisions. Eugenics, or the practice of segregating, imprisoning, forcibly sterilizing (and in extreme cases, killing) "imbeciles" was widespread in the US and abroad. Many people think Hitler came up with the idea of purifying the human race, but in fact eugenics began right here in the United States, and it was practiced and openly endorsed by governments and courts all over the country. Then-unknown Hartford Courant reporter Geraldo Rivera risked a great deal to produce and distribute a documentary on the practices of one of the many insititutions that warehoused "undesireables" in horrendous third world conditions, and performed involuntary sterilization procedures on any and all deemed "unfit" to reproduce. The piece rightly received a great deal of attention, and was exactly what activists needed.

The public reluctantly admitted the errors in these ways, and bit by bit, laws were passed and programs initiated to reduce and eliminate these extreme practices. At the same time, professionals and advocates were working tirelessly to alter the public's perception of mental illness. Advances in research, medications and therapy techniques made it possible for mental illness to be properly perceived as a medical condition rather than a spiritual or moral failing, or inherent personal flaw. Across the United States, legislators made impassioned speeches extolling the virtues of community-based treatment, arguing persuasively that larger numbers of people could be more effectively treated with lower cost community-based services. The barbaric practice of locking up people we didn't understand could be stopped!

The public cautiously supported these ideas, and one by one, state-run facilities were closed, and people formerly unnecessarily confined to institutions were released into community programs for treatment. Ever attracted to the newest trends and popular issues, legislators and the public failed to follow through on the common sense requirement that funds previously devoted to keeping institutions open should be used to fund the new community-based programs. Mental health service funds were never kept at pre-deinstitutionalization levels, and cuts in funding rendered the community service system ineffective at best. As a result, many people who needed help were unable to obtain it, leading to substance abuse and other "unacceptable" behaviors, such as disorderly conduct, public intoxication, domestic violence and on occasion, even more serious crimes.

Statistically, people with mental illness are no more prone to violence than anyone else. Unfortunately, untreated mental illness is very often associated with substance abuse - which does have a definite causal relation to minor and serious criminal behavior. With mental health treatment ever more difficult to obtain, those whose untreated mental illness and/or substance abuse led to criminal charges faced mounting obstacles to a normal life - fines, imprisonment and despair were predictably devastating, and needless to say did nothing to alleviate the mental illnesses. Criminal records made employment hard to obtain, and ongoing symptoms made it ever more difficult to maintain employment, relationships and compliance with what little treatment they might obtain. It is not hard to see how millions of people in these circumstances became relegated to lives of poverty, isolation, and often homelessness - and yes, criminal acts. I am all for personal responsibility, but having been through a period of serious clinical depression myself, I have a great deal more empathy for this slippery slope than those who have not experienced similar circumstances. In any event, over the last 40 years, people with mental illness have ended up in worse circumstances than those from which similarly situated people were liberated in the 60's and 70's: they now comprise a huge portion of the jail and prison populations.

Statistics show that the percentage of prisoners with mild or serious mental illnesses has nearly quadrupled since deinstitutionalization in mental health treatment. Underfunded community mental health centers routinely turn people down who ask for help, and those who are able to get an appointment often have to wait months to see a mental health professional. Follow up appointments are of necessity scheduled at huge intervals, and emergency appointments are simply unavailable. People who end up in the emergency rooms of local hospitals often wait there for 24-72 hours or longer before even being screened for treatment. If they do not meet standards for inpatient treatment, they are told to follow up with community mental health. If they meet standards for inpatient treatment, they may have another wait before being sent to one of very few facilities, where the norm is to stabilize the patients with drugs then discharge them with instructions to follow up with community mental health. This "system" accomplishes what, exactly? When people with mental illness cannot get the help they need, they may turn to substance abuse, which often leads to criminal behavior. Joblessness, homelessness and isolation among people with mental illness are very common. That criminal acts somtimes follow is simply logical, though not often outright excusable.

Once in the jail or prison system, treatment is either non-existent or woefully inadequate. Statistics show that prisoners with mental health diagnoses are far more likely to have "good time" credits taken away and/or have their sentences extended for disciplinary matters. They are also statistically much less likely to make parole, not only due to disciplinary issues, but due to inability to find employment and make housing arrangements, both of which are required for early release programs.

Human rights groups such as Protection and Advocacy for People with Disabilities, Inc., the National Alliance for Mental Illness, the Association of Retarded Citizens, and others, have fought diligently to secure adequate mental health treatment in the community and in the prison and jail systems, largely to no avail. While I understand why most law abiding citizens have little sympathy for the needs of convicted criminals, I believe we should take another look at not only the human rights aspects of this situation, but at the root cause of there being so many prisoners in need of serious mental health interventions. We must also look at how and why our prisons became full to bursting with mental health patients, and whether we are willing, as a society, to continue to label this trend as anything other than deplorable neglect borne of political irresponsibility, greed and ignorance.

The bottom line is that the politicians who rode the wave of public support for modern, humane, cost-effective community based treatment utterly abandoned the cause in subsequent budget discussions. Worse, the public allowed it. The press consistently jumped into the fray with irresponsible sensationalist reports of mentally ill persons committing horrendous crimes, leading the public to believe, inadvertently or deliberately, that people with mental illness are violent and need to be locked up. They occasionally reported the reality; that is, that people with mental illness are no more violent than anyone else, but only when it was convenient and played in with the theme of the particular story. The public, ever hungry for the sensational, the appalling, the strange and the bland-but-real desire to believe anything that "distances" them from criminals, ignored the truth in order to almost gleefully engage each other in the fear-mongering that started every time they turned on a news show, read a newspaper or magazine, or took in the "news" on the internet. Ridiculous but rare incidents like the twinkie defense case further entrenched the attitude that mental illness wasn't really real, and that we as a society therefore had no responsibility to fund treatment for it, and every responsibility to see to it that everyone who displayed behavior we didn't approve of was locked up. This attitude has persisted to this day, and is arguably more prevalent than ever. Sounds a lot like eugenics, at least to me. Whether we want to admit it or not, our society has slipped right back into the attitudes that were popular in the dark ages of mental illness "treatment", digressing ever closer to the acceptance of eugenics, regressing far back before the movement of the 60's and 70's that was supposed to be the age of enlightenment on this subject. How sad. How irresponsible. How reversible!

People with mental illness are still shunned; many don't seek treatment due to the stigma, not to mention the cost, as insurance parity has yet to become standard. Community mental health never had the funding that was promised, and what little there was has been steadily eviscerated in favor of funding more popular endeavors, like putting smiley faces on interstate exits, paying lobbyists for government agencies to obtain greater funding, providing lavish salaries and offices to high-ranking public "servants", funding pork-barrel projects that defy all logic and common sense, creating top-heavy bureaucracies that tie themselves up in knots and lose sight of their obectives (DSS, IRS, DMV) and paying irresponsible single mothers to have more children they are neither willing nor able to raise to be productive, law abiding citizens....but I digress.

It is preferable, both in terms of human rights and financially, to pay for community mental health services rather than incarceration of any kind. We must not continue institutionalizing people with mental illness who can be effectively treated in the community, especially in jails and prisons. We must begin to fulfill the promises made when deinstitutionalization removed access to treatment. The politicians pulled a classic bait-and-switch on the public as a whole, and on people with mental illness in particular. This inexcusable tactic, undertaken to free up money for pork barrel projects, has very effectively unravelled all the progress made decades ago, at the personal expense of some of society's most vulnerable citizens and the collective expense of the taxpayers. And it is perpetuated, to the politicians' delight, by the public's fear of crime and general unwillingness to address any problems associated with incarcerated criminals. This is the most effective and devastating political game ever "won." And you and I are paying the price for it.

As a society, we must make responsible judgments, based on facts, which lead to public policies that address the root causes of the problems we seek to resolve. First, we must admit that we have allowed politicians to replace mental institutions with prisons as the warehouses of choice for people with mental illnesses. It is undeniable that we have underfunded community mental health, and that subsequent to deinstitutionalization, the percentage of persons in prison with mental illness has increased disproportionately to the instance of comparable mental illnesses in the community. It takes no creative thinking at all to conclude that there is a causal relationship between the two. As with most situations that overake us as the result of neglect, both intellectual and financial, this problem does not lend itself to a quick solution. We must start with a two-fold commitment, no pun intended. We must insist that legislators listen to professionals who are telling them that prison medical services must be fully funded, and we must insist, ourselves, that legislators fully fund community mental health services. Only when these two issues are resolved will we begin to see this trend begin to slowly reverse.

I wish I had all the answers, but this is a society-wide issue, and it will take a society-wide change in attitudes to address it. Meantime, we must face the fact that we are putting the wrong people in jail....and we must become willing to do something about it. With the current recession, and the current public attitude towards crime and prisons, those working to resolve this issue have a huge battle ahead. Let us hope, for all our sakes, that they are up to the challenge. I wonder, though, dear reader, what you might be willing to do to help? Would you write to your legislators? Volunteer for or donate to an advocacy group? Speak up at the water cooler (or wherever else you happen to be) when people express uninformed opinions contrary to the truth? Stop and think before buying into the latest sensationalist story shoved at you by an ever more irresponsible press? You are a part of the solution. Will you be one who advances it, or one who, by inaction or outright opposition, slows it?
____________________________________________
Check out this link for an interesting timeline of media coverage of disability issues.
Click here for statistics on mental illness in prisons and jails from Bazelon Center fr Mental Health Law.
Click here for the Human Rights Watch article on mental illness in prisons and jails.

SC DNA database challenge unsuccessful

Findlaw.com is a great legal resource.....
http://caselaw.lp.findlaw.com/data2/circs/4th/086169p.pdf

In Re: DNA EX POST FACTO ISSUES
ANTHONY EUBANKS,
Plaintiff-Appellant,
v.
SOUTH CAROLINA DEPARTMENT OF CORRECTIONS;
WILLIAM D. CATOE, No. 08-6169
Individually and in his official
capacity as Director, South
Carolina Department of
Corrections; SOUTH CAROLINA LAW
ENFORCEMENT DIVISION,
Defendants-Appellees.

Faith and the Criminal Law Business

I am a Christian. My profession is investigating criminal cases on behalf of the defense. Several friends have asked me how I reconcile my beliefs and value system with work that many perceive as helping people avoid responsibility for criminal acts. The Ten Commandments prohibit stealing, killing and adultery; but they also tell us in no unertain terms how important a fair justice system is: we are forbidden to give false testimony. The Bible instructs us to be fair, to protect those who are persecuted, and to respect authority. All we undertake should be done in such a way as to glorify God. Being a Christian means that I value truth, honesty, fairness...all the things our justice system is designed to encourage and protect. Protecting freedom through justice is anything but incompatible with the Christian faith.

Criminal defense is portrayed as irresponsible profiteering by the media, and so many people have bought in to this perception that they forget what makes America the greatest country on earth: freedom through commitment to justice. Justice doesn't just happen. And it doesn't mean locking up every person accused by the government of breaking the rules. We are so used to trying people in the press that we often forget that the press is in the business of selling, which trumps any consideration of fairness or completeness. The public wants to read the quick and dirty and close the paper or website with a "final answer." What is "Christian" about condemning someone without a trial, and without all the facts? What is "Christian" about wanting people to face criminal charges without full disclosure of the evidence? What is "Christian" about jumping on the bandwagon with the mindless masses who applaud wrongful convictions, based on media hype, inaccurate reporting, fabricated evidence and lies - only to say "oh, we're sorry" when the facts finally come out? Oh, that doesn't happen, you say? Check out http://www.theinnocenceproject.com/, and assert, with a straight face, that it doesn't.

Justice is an adversarial process that we must protect jealously, zealously, continuously. I believe in personal responsibility, but I also believe in societal responsibility. We have a responsibility to uphold our collective promise to ourselves to regard everyone as innocent until proven guilty. Law enforcement has a responsibility to investigate thoroughly, fairly and expeditiously. Victims and witnesses have a responsibility to cooperate and be truthful with law enforcement. Prosecutors have a responsibility to seek the truth. Judges have a responsibility to ensure that trials are conducted fairly. Jurors have a responsibility to follow the law and render a fair verdict. And the defense team has a responsibility to ensure that the government proves the case beyond a reasonable doubt, and a responsibility to insist on the charges being reduced or dropped if they can't. The absence of any one of these elements throws the entire system off balance. Justice cannot survive without the adversarial system we take for granted. And for the system to be adversarial, the protections we have given ourselves must be applied equally to all defendants, in all cases. When the government brings its power to bear on an individual in a criminal case, his defense team must ensure that his rights are protected. This duty does not put the defense team at odds with justice. Rather, it puts us at odds with injustice. Being at odds with injustice should be the goal of all players in the system, but this isn't always the case - and when it isn't, the other players in the system must fight to bring the system back into balance and see that justice is done.

Members of the defense team can abuse the system as readily as any other participant in the justice system, and it is just as important for law enforcement and prosecutors to jealously guard the rights of victims and society as it is for the defense to guard the rights of the accused. Again, the adversarial nature of our system helps to ensure that abuses don't succeed in undermining the system as a whole. If every player in the system does his job honestly, diligently and competently, the system works. It is what sets us apart from the rest of the world, and like it or not, it is a manifestation of the Christian values that our founding fathers weaved into the fabric of our nation. Yes, I am a Christian Criminal Defense Investigator, and yes, it all fits together beautifully.

What's Happening to Law Enforcement?

I read a news item today that disturbed me, as it seems to be part of a frightening societal trend. A deputy was suspended for arresting teenagers involved in a burglary. On the face of it, considering the circumstances, custodial "detention" (you don't actually "arrest" juveniles) may not have been the best option: the teens had invaded a lake house to have a party. Some damage was done, but this wasn't a typical break-in-take-what-you-can-and-sell-it type of "burglary." Nevertheless, the deputy had parents bring kids in for questioning, and about a dozen ended up at DJJ in Columbia. Many comments posted to the article were from citizens outraged by the suspension, though a few pointed out the fact that burglary is a felony, and that kids often get scared enough by this type of experience to think twice before doing something equally stupid. All are good points, but the main question is: Why is the deputy suspended from his duties? Was custodial detention so far beyond reason that his ability to carry out his duties is in question? Is he accused of a crime? Did he beat up the kids? Barring some accusation of something beyond putting the kids into custody, I believe suspension is unwarranted. Any benefit gained by the fear generated in the kids over being incarcerated has been effectively negated by their parents' "outrage" and insistence on disciplinary action against the officer.

Good job, PARENTS. You took what could have been a painful but valuable lesson for your kids, and all the kids they would have relayed their horror stories to, and turned it into another example of how the world owes them something and they need never take responsibility for their actions as long as they can claim someone else did something wrong. Please don't tell me how you took away their Mustang convertible, or their XBox, or their cell phone, or whatever luxury you deprived them of for a short time as "punishment". Kids need to understand that when they do something wrong, the results, and the response of the world, will not always be in "fair" proportion to what they did wrong - sometimes the consequences can far outweigh what they anticipated, and they will have to live with it. Driving too fast, drinking irresponsibly, being in the wrong place at the wrong time, can COST you, and often it costs much more than can be easily recovered. Why deprive them of that lesson? Why coddle and protect them from their own actions? These are teenagers, not 6 year olds! Old enough to drive, taking their lives and ours in their hands every day. Old enough to be out unsupervised, making decisions that can cost them their lives, and others their lives.

I believe the proper response from the parents to law enforcement should be: "Thank you for getting to the bottom of this matter. Where can I pick up my child, and what time do I need to be there? How much damage is my child responsible for, and whom do I make the check out to?" And the response to the child should be: "How did you like jail? We'll get to what you are actually responsible for and how we will handle it later, but for now, do you understand that things can go very badly, very quickly when you go places and do things on your own? Looking back on this, what should you have done? What should have led you to conclude for yourself that you should "stay away" or "not go" or made it click in your mind that "I need to leave?" How are you going to earn the money to pay for your attorney?" Unfortunately, it's too late for that now......

I don't know where we went wrong, but societal standards have taken a rather frightening turn for the worse in recent years. It has to have been a slow, insidious process. No one would have suggested 25 years ago that a deputy be suspended for carting kids off to juvie for ONE NIGHT. Parents would have been outraged at their children, and too embarrassed to complain at all, and certainly not to the tune of "my child should not be subject to being put in jail like anyone else charged with a crime can be." Parents held their children to standards, schools reinforced discipline that was expected to START at home, and kids generally had a healthy combination of respect for, and fear of, authority. There were limits, they were known and we were all a lot better off. But somehow, some way, the idea that discipline is bad for children crept into the collective consciousness of our society. We give out trophies to every kid who shows up for a sports team. Kids are given "social promotions" in school whether they've learned the required material to advance a grade or not. Colleges give credit for "effort" whether the students demonstrate mastery of the subject or not. Parents let their children run wild at home, in stores, restaurants, theatres and in school. Schools can't discipline children except to suspend them for the least little things, giving them free days out of school (how is this a punishment, exactly?) while having no ability at all to deal with the utter lack of self discipline created by parents who refuse to demand respect and obedience from their offspring.

When are we going to wake up from the stupor and realize that we have been WRONG to accept downright freakish psychological "models" of childrearing that forego discipline and confuse parenting with befriending kids? I hope it's sooner rather than later.....

Now, what does all this have to do with Criminal Defense Investigations? I believe that the increase in crime is directly attributable to the aforementioned decline in discipline by parents and schools. We are overwhelmed with crime. Law enforcement has too many cases, too few investigators and too much pressure to resolve the big cases quickly. This translates into investigations being done too quickly with inadequate personnel and other resources. Many law enforcement investigators are good at what they do, or would be if given adequate time and resources, but the overwhelming work load makes it almost impossible to conduct thorough, complete investigations every time. Often they come up with the correct conclusion even so, but if they don't, there is not only a victim who doesn't get justice, there is a criminal who isn't caught and convicted, and all too often a person who is innocent of the charge is punished. That's where we come in. No good defense investigator actually believes that law enforcement in general doesn't care or doesn't try, though there are those few LE folks who really don't care. Good investigators have a great deal of respect for law enforcement investigators even as we pick their work apart after the fact. We're all on the same side, though - we want the right person to be punished, which of necessity means that the wrong person shouldn't be.

Getting Started

Welcome to the Criminal Defense Investigations Blog. I welcome comments, questions and suggestions at any time, and hope that you will bookmark this site and visit often. I will post links to articles, cases, and laws related to Criminal Defense Investigations, and offer my not-so-humble opinions along with commentaries, stories and anything else that seems interesting or useful.

I am a Senior Investigator at Byrd, Stillinger & Associates in Columbia, SC. I worked for 2 1/2 years as a police officer, then went to law school and practiced law for 13 years, including criminal defense work, along with all sorts of other cases, which ranged from the most boring work on earth to the most fun I've ever had (well, close to it, anyway). As the blog grows, I'll post occasional reminisces from old cases, courtroom experiences and police work. Hope you enjoy....

Thanks for visiting, and come back again soon!