[MP-Ryan]

I don't watch tv, sorry. However, I do know it's unsafe to put a ton of pressure on some asshole's head, neck, abdomen, chest, etc. Durhh. People die when you do that. That's why you have multiple cops. You can get an asshole into handcuffs without killing him. If he's THAT frail, then there shouldn't be so much force required to cuff him and put him in a cell or a car.

Cuffing requires only one competent officer - it's fairly straightforward.  But now what?  This isn't about cuffing, this is about obtaining a DNA sample - which is usually done with an interior cheek swab.

How do you propose to force someone to open their mouth and cooperatively provide a DNA sample when they don't want to and are actively fighting (and believe me, people can still very effectively fight while in handcuffs)?  And don't even think about saying "pry their mouth open."

[MP-Ryan]

I guess I am also mad that some moron defense lawyer apparently has ****ty argument capabilities and let this happen. I think the ideal here would have been something like:

1) toss the samples obtained under duress
2) hold the officers accountable for doing something stupid
3) order re-samples with clarity on the repercussions for declining and jail Mister Smith until he complied.

Allowing the samples sanctions the technique by which they were acquired, and its clear from the snippet of the opinion I read (and posted above, I can't find the full opinion) that the judge was not happy with how they did it.

As I said before, if that's the point they want to argue I consider points 1 & 3 to be rather a waste of time. We all know that the samples from 3 will have the same result as 1 otherwise the lawyer would have a very strong case for aquittal. They should have gone much more strongly after point 2.

Agreed.  The judge in this instance has not sanctioned the officer's actions, but they are incidental to the case.  The subject would be much smarter to file a suit for excessive force and place the process itself under scrutiny.

[karajorma]

Thing is, excessive force would do him little good.

That's why I was so hostile to this case from the off. The lawyer was trying to use the excessive force that may have occurred in an attempt to cause sufficient smoke to get his client off of a completely separate crime.

[Inquisitor]

The defense lawyers job, and only job, is to get his client cleared. This one just happened to be a moron. My problem is with the underlying circumstances, and I think the suspects rights to due process were violated.

Dude was restrained with handcuffs, dude was tasered into consenting to the court order. That's evidence obtained under duress, last I checked that WAS the inadmissible sort of thing.

Meh. Mister Smith should have had his lawyer there to begin with.

[karajorma]

The defense lawyers job, and only job, is to get his client cleared.

And the job of the judge is to rule against him if he thinks his argument has little merit. And in this case it did. Because the only thing forcing the state to compel new evidence would do is waste taxpayer money on new tests. It's not like the outcome of those tests was ever going to be anything different is it?

Dude was restrained with handcuffs, dude was tasered into consenting to the court order. That's evidence obtained under duress, last I checked that WAS the inadmissible sort of thing.

Meh. Mister Smith should have had his lawyer there to begin with.

That's probably where he did begin. The point is that even if the judge had found that evidence inadmissible then all that would have happened is simply taking a new sample.

The mistake was in trying to link the two incidents. The lawyer should have ignored this criminal case completely and started working on a separate one for the torture of his client.

[Mikes]

And the job of the judge is to rule against him if he thinks his argument has little merit. And in this case it did. Because the only thing forcing the state to compel new evidence would do is waste taxpayer money on new tests. It's not like the outcome of those tests was ever going to be anything different is it?

So i guess it would be fine to tortute people too as long as we "know" they are guilty mh?
I mean when we "know" they are guilty, why should we waste taxpayers money on elaborate ways to entrap criminals and collect evidence when we can just torture them a little until they admit all their sins ?


In this case the suspect turned out to be guilty (i.e. DNA matched)... but just imagine for a second if he had been innocent and the DNA didn't match - the police happens to have the "wrong guy" often enough after all -, what then ? This "what then" is bound to inevitably happen as innocent people happen to get caught up in the system now and then - That's a fact. And then some moron lawyer will propably point out that there was a precedent for using a taser to acquire DNA samples and it points all right back at this case.

There is a reason why there are so many restrictions on "due process" and what the police is allowed to do - and that reason is to protect innocent people from the system itself. That HAS to take priority. Of course that means that a guilty person will often walk free... but that is the price for living in a free society and not in a policestate where every single citizen has to be afraid of police brutality and torture despite being quite innocent lol.

Using "force" to restrain or arrest a suspect appears to be something quite different in my eyes than deliberately attacking a suspect to make him give up evidence - and yes... that is pretty much what they did. They could have held him in contempt of court if he had not complied with the court order and done all kind of things, but instead they choose to use force to directly acquire evidence. Maybe that is not quite as drastic as using outright torture to acquire a testimony... but the logic and reasinong involved really are quite uncomfortably close to it. How much of a difference really is there between "taser (or beat etc.) him to get his DNA" and "beat him till he admits it" ? Uncomfortably close. It's not a stretch either to imagine the police tasering a bunch of rowdy suspects in order to determine "who of them has actually dun it" either. Quite uncomfortably close.

Contrary to popular belief a law-enforcements officers job is not to "arrest criminals" and make sure they are convictet, but rather to "protect the public" - not just from criminals, but also from themselves. And that is pretty much the main difference between a free society and a policestate. If cops forget to play by the rules and it results in a criminal going free, then that is frustrating...  but if cops don't play by the rules and the criminal gets convicted anyways, then that is a much greater failure of the system. That is, if democracy, freedom, individual rights and all that good stuff are supposed to have any meaning

[karajorma]

So i guess it would be fine to tortute people too as long as we "know" they are guilty mh?

I should bundle all these strawmen off and sell them. I'd make a lot of money from people who are arguing against me without the faintest clue of what I'm actually saying.

In this case the suspect turned out to be guilty (i.e. DNA matched)... but just imagine for a second if he had been innocent and the DNA didn't match - the police happens to have the "wrong guy" often enough after all -, what then ?

Now that is an interesting question. What would have happened if the guy was innocent?

If the guy was innocent he wouldn't have wasted time trying to get the DNA evidence thrown out. The DNA evidence exonerates him. So instead of doing that he would have spent his time and effort bringing a case against the police for brutality. Which he'd almost certainly win.

The guilty cops lose their jobs, the innocent man goes free and probably sues the state for a lot of money.


But because this guy was guilty he wasn't interested in following the case against the police brutality because he was more interested in using it to get him off another crime.

This "what then" is bound to inevitably happen as innocent people happen to get caught up in the system now and then - That's a fact. And then some moron lawyer will propably point out that there was a precedent for using a taser to acquire DNA samples and it points all right back at this case.

Which is why this should have been dealt with as a case of police brutality and not as an abuse of due process.

[Inquisitor]

The guilty cops lose their jobs, the innocent man goes free and probably sues the state for a lot of money.

The opinion means that many potentially innocent people get tasered. That's how precedent works. Its now a sanctioned tool to enforce a court order. Its both an abuse of due process and a case of police brutality. The two are inextricably related in this case,under my understanding of US law.

THAT is the problem with it. Its not really a straw man in the US legal system. You don't get one without the other the way this has appeared to play out.

[Flipside]

It's that which concerns me also, in the US, a lot more weight it put on precedent than in the UK, and, no offence intended to our US posters, the sometimes put word of law before common sense, though, in their defence, their entire social system is (supposed to be) based on that concept, since, common sense isn't always 'right'.

In this case, the accused was tied to a chair and electrocuted in order to obtain a sample, as I said earlier, those weapons are supposed to be used in the defence of self or others, defence, once again, can be broadly interpreted, is forcing evidence from someone you 'knew' did the crime an act of protection? But then there's the other end of the stick, is tying someone to a chair and electrocuting someone justifiable to prove that they didn't commit the crime? Water starts getting murky now.

[karajorma]

The opinion means that many potentially innocent people get tasered. That's how precedent works.

And every single cop who does it goes to jail. That's also how precedent works. Not many policemen are going to do it if they know it will cost them their jobs.


See the problem with this case is that they put the judge in a position where whatever he decided would be a miscarriage of justice. This whole matter should have been dealt with when the incident happened not kept until months later when the defendant thought (incorrectly) that it could be used to get him off.

[Inquisitor]

But it didn't. The court said they preferred they do it a different way, but did not issue any formal judgement (from the snippets I read) other than the evidence was allowed.

The abuse is allowed without penalty. The penalty is left to the department. So, the abuse is codified. The penalty is left up in the air (including no penalty). I do not want to be the innocent man picked up for mistaken identity and tasered into consenting to a rights violation. What's now to stop them from doing that before my lawyer arrives, if I am picked up on a valid arrest warrant (which is a court order)?  Where do you draw the line? Are all people subject to court orders allowed to be tasered? Period? This draws no lines that I can see (it appears the opinion itself is yet to be published on the court's website, or I am looking in the wrong place).

This decision, and the circumstances that led to it, is/are a problem in the American judicial system, partly because the way that system works. I can only hope a higher appellate strikes it down.

I don;t think, you understand precedent as it applies to American jurisprudence, since you have been dismissive of it now on 2 occasions. Its a powerful force in US law, often overcoming common sense.

This has much deeper implications than simply one stupid lawyer trying a "trick" to get one scumbag acquitted. And hoping that the deterrent of a POSSIBLE penalty for doing a wrong thing is overcome by "getting the bad guy" will prevent abuse is naive, again assuming that the decision includes no stronger language than cited above.

I'll be looking for the appeal to this, the judge was irresponsible in allowing this (if its as presented), but I suppose no more irresponsible than the previous administrations creation of Gitmo, the withdrawal of Habeas Corpus, etc.

-edit-
Once again, someone has said it more succinctly than me, sorry for reiterating Flips comments so obtusely

[karajorma]

Then instead of simply complaining about it, get the district attorney to prosecute the case against the police officers who did this. It's a separate issue from the case itself.

It's what should have been done all along.

[Mikes]

Then instead of simply complaining about it, get the district attorney to prosecute the case against the police officers who did this. It's a separate issue from the case itself.

It's what should have been done all along.

Even if the cops are held responsible, it is still a problem that evidence obtained that way is allowed to be used at all.
It would still mean that cops can decide to "cheat the system at will" if they just are determined enough to accept the personal consequences.

That alone is still a huge can of worms. And letting it stand "as is", with no consequences for the cops involved, is certainly an even bigger can of worms.

It really just leaves the hope that this case will get squashed by some judge higher up the food chain, because if it isn't, the precedent it sets leaves so many uncomfortable implications.


You don't get a policestate overnight (not without a coup anyways ), you get it babystep by babystep and this is certainly one babystep in the wrong direction.

[Inquisitor]

It's what should have been done all along.

If I lived there,  I would.

[Blue Lion]

If they have an arrest warrant for a guy and complete it a completely crappy way, do they have to let the guy go and try to arrest him again?

No, you charge the cops with whatever and let the guy sit in jail for his arrest.

Same here. You charge the cops and let the DNA stand. It's not gonna change if they destroy it and try again. And it's not going to erase the fact they tased the guy. The only thing you can do now is charge the cops for any rules they may have broken in the process.

[Inquisitor]

If they fail to miranda you, you are damn straight they throw out the evidence obtained, possibly the arrest. This is not a new concept.

-edit-
Yes I know Miranda doesn't apply to DNA, I am using it as an example.

[MP-Ryan]

If they fail to miranda you, you are damn straight they throw out the evidence obtained, possibly the arrest. This is not a new concept.

Only the evidence obtained AFTER the arrest is thrown out - statements, etc.  Physical evidence discovered on the person is still fully admissible.  The arrest will stand so long as sufficient other evidence (e.g. aside from any statements taken after the arrest was conducted) exists to satisfy habeas corpus.

Legitimate arrests are not necessarily thrown out if the officers complete them in an unconstitutional way.  The reason for this is an arrest doesn't actually mean much.  The evidence available for prosecution is what counts.  So long as enough legitimate evidence exists of a crime to prosecute, and it wasn't obtained in an unconstitutional way, excessive force complaints don't factor into it.  Those go for separate investigation and prosecution.

[Blue Lion]

If they fail to miranda you, you are damn straight they throw out the evidence obtained, possibly the arrest. This is not a new concept.

-edit-
Yes I know Miranda doesn't apply to DNA, I am using it as an example.

That's a due process violation is it not? If a guy is in jail and the guards beat the crap outta him, they don't let him go and start all over again. They charge the guards.

[karajorma]

If they fail to miranda you, you are damn straight they throw out the evidence obtained, possibly the arrest. This is not a new concept.

-edit-
Yes I know Miranda doesn't apply to DNA, I am using it as an example.

Problem is that Miranda is a poor analogue in this case.

The purpose of Miranda rights are to make certain that the defendant is aware that he doesn't have to speak to the police, is allowed to have other people in the room besides the police and to make certain that he knows that if he chooses to give a confession he's fully aware he didn't have to.

The reason why Miranda is so important is because if the defendant isn't aware of this he can incriminate himself in a way that is against the law. This would have the effect of changing the outcome of the case.

Now this example is different. The defendants DNA isn't going to change. The sample he gave, even if it did violate his rights to take it isn't going to be any different from the one he would eventually have had to give after sitting in prison for refusing to obey the court order. Dumping the evidence has no net result on the case since the new evidence would be no different to the old evidence.

Now if the guards had tased him into giving a confession, that would be thrown out. As there you have an example of the taser being used to coerce information that might not have been forthcoming without it.

AFAIK all this ruling says is that you can not judge DNA evidence inadmissible simply because excessive force was used in obtaining it unless other rules of due process were also broken. I've not seen any evidence to say that the ruling says that the police can't be investigated for brutality in getting the sample. Nor that they have been given permission to use tazers in this fashion.

[Inquisitor]

I guess the devil is in the details. I have not tried to locate the actual ruling again. I am erring on the side of "the whole thing is ****ed up" and you are erring the other way.

And neither of us actually knows whats in the full decision.

I happen to disagree that its fundamentally different than Miranda, but I expect I am wrong there the more I read about why something like DNA is not covered. I also disagree that due process violations are not reasons for release. Due process violations can happen all they up the chain, including resulting in things like mistrials, which could indeed nullify the arrest, conviction or what have you. That's why (in my opinion) getting due process right is so crucial.

YMMV