Happy New year...

In her wonderful way, Dahlia Lithwick has put together her own top 10 list for 2006--of The 10 most outrageous civil liberties violations of 2006. No surprise, it's a wonderful read including:

Number 10: Attempt to Get Death Penalty for Zacarias Moussaoui...
Number 6: The State-Secrets Doctrine...
Number 2: The Military Commissions Act of 2006

And for number 1, just click the link above...

Ice Mass Snaps Free in Arctic

A little off topic I know, but the crazy warm weather and terrifying and substantive climactic changes have got me even more concerned than usual...

Rape Charges Dropped The Rest of the Case Will Follow Soon

Rape charges were dropped in the Duke case today. Setting the stage for a trial on charges that carry just as much time. It's a perfect prosecutorial trick--one I've seen prosecutors use all the time. Use penalty inflation to your advantage. The classic example in New York (which the Court of Appeals has mercifully finally put a stop to) was to charge every defendant with two kinds of Murder--Intentional and Depraved. That way when the jury acquitted of intentional murder and convicted of Depraved, jurors thought they were compromising, when in fact, the verdict was a distinction without a difference and almost everyone convicted that way got slammed just as hard at sentencing as someone convicted of the intentional murder.

So here, the DA has just fiddled with the charges but not the life-destroying penalties.


Duke DA Mike Nifong

All that said, reading between the lines, I think the case goes away in the next few months. The ostensible reason is that the CW is going to have some doubts about her identification. That will allow the DA to cover his ass just enough to possibly avoid the disciplinary charges I think might be (and probably should be) filed against him.

Do let's bear in mind though: the conduct of the DA here is disgusting, but it is by not means unusual. Sad as it seems, this is how the game is played. Thank heavens we have Duke to hold up a mirror to the system, but woe be to those who make the mistake of believing this unusual.

The Bankrupt-Your-Family Calling Plan

The loathsome gouging of incarcerated inmates by politically connected phone companies has long been one of those issues that is regularly raised and never solved. Still, it's heartening to see this excellent editorial from the NYT.

I'm spending Chanukah

For the first time in years, well, actually maybe ever, I am actually doing what Tom Lehrer so famously sang about: spending Chanukah in Santa Monica. And though i'm not quite wearing sandals, lighting candles by the sea, I did watch a beautiful sunset over the pacific.



And I'm not sure whether it's the pacific effect of the Pacific, general holiday happiness or whether I'm just tired from the transcontinental flight (which left at 6:00 a.m), but for some reason I found myself particularly pleased by a totally unsolicited e-mail from someone I've never met, who read the book and here as December draws to a close called it "the best book I've read all year." (and yes, he goes on to make clear that he reads a lot of books). So happy Chanukah to me.

The AG Weighs In...

Here's an interesting coda to my ongoing debate with several people about my friend Randy Cohen's column in the Ethicist a few weeks ago...

For those of you who followed this, Randy was besieged with letters insisting that he had made a legal error in advising silence to an IT guy who found what he suspected was child porn on his bosses computer. Now having been consulted concerning the legal implications, my analysis was on the line here as well. But what appeared today in the letters section of the NYTM feels, well, vindicating. There's actually a letter from the Attorney General of the United States. And while he vociferously disagrees with Randy's position, he makes no attempt at all to argue that there is a legal obligation to report.

Ah victory. Here's the letter...


The AG Himself...

The Boss's Computer
When a technician discovered child pornography on the company president's computer, the Ethicist advised "silence" (Dec. 3). This advice was reckless and naïve.

Each image of child pornography is a crime scene, and its possession is a felony in 42 states and under federal law. Furthermore, reproducing such images again victimizes the innocent child. The Ethicist flippantly advises silence because speaking up would be "too ineffectual in protecting children." But real children have been rescued by the discovery of images. Without the images, we cannot find and rescue victims or punish the predators. The Ethicist demonstrates a disappointing lack of understanding of how law enforcement works.

This is unacceptable, and I urge all Americans to reject this poor advice. A child's life could hang in the balance all because a self-described "ethicist" muses over vague excuses rather than advising immediate action.

Alberto R. Gonzales
United States Attorney General
Washington

Florida Halts Executions...

How's this for a big Oops...

Executions in Florida normally take no more than about 15 minutes, with the inmate rendered unconscious and motionless within three to five minutes. But yesterday Angel Diaz appeared to be moving 24 minutes after the first injection, grimacing, blinking, licking his lips, blowing and appearing to mouth words. So they dosed him again.



As a result of the chemicals going into Diaz's arms around the elbow, he had an 12-inch chemical burn on his right arm and an 11-inch chemical burn on his left arm, Hamilton said. As a result of this fiasco, Florida has halted executions, at least for now.

My Latest Book Review...

In today's Washington Post, I review "Sex, Lies and Handwriting: A Top Expert Reveals the Secrets Hidden in Your Handwriting. The piece is titled You Can See It In Their I's .

Interesting exchange...

First an observation: There are few things scarier than watching a rodeo in the big bar at Hooters Las Vegas. Trust me, you don’t want to know…



Secondly, a lengthy follow up to something I wrote last week about some of the critical mail my friend Randy Cohen was getting based on his column in the Ethicist about 10 days ago. And though that probably should have been the end of things, it seems I just couldn’t keep well enough alone. Looking around, I found several letters to local papers that made the infuriating mandatory reporter argument, and well, I went a bit off.

Below is a rather amazing correspondence I had with the author of one such letter to the editor. I’ve taken out his/her name and omitted a few details as this was originally a private e-mail exchange. If nothing else, it was another great lesson in the power of the internet to parse questions like this and provide direct access to people who opine on things and even occasionally to come to some comfortable place of disagreement.

It all started when I saw the letter. Maybe because I was bored, or maybe because I got genuinely angry at what I felt was the very public dissemination of misinformation, I fired off the following…

Dear Mr -------,

I was distressed to read your letter to the -------. While you are certainly entitled to your opinions concerning ethics, you would be wise to avoid making assertions about legal matters. You are quite wrong about the law in Texas, (which is why the only people making mandatory reporter arguments in this context are social workers and child advocates rather than lawyers) and you do the public a terrible disservice by spreading misinformation.

What is your basis for making the allegation that the Texas statute makes this individual a mandatory reporter?

Do you have any evidence of anyone in a similar situation being prosecuted for such an offense?

The law you cite is quite similar to many around in the US. Almost every jurisdiction has child protective laws on the books and most impose reporting requirements. But here, as with everywhere, the condition precedent to the reporting requirement is some specific knowledge of a child being harmed. This is the critical bit--"A" child, as used in the statute, contemplates a particular child and the goal of the statute is to deal with particular children in danger.

Now if S.M.N had seen a picture of Maggie--his next door neighbor's 10 year old--in a sexually compromising position, then I'd agree he'd likely be obligated to report that abuse--but he'd be telling on Maggie's parents, not on the president of the company, because Maggie's parents had created the conditions contemplated by the statue. Here, with random pictures of unidentifiable kids who may or may not be in the jurisdiction, there is certainly no obligation at all. Under your misguided and bizarre reading of the statue, if a magazine published a photo of a woman hitting her child, every singe citizen who saw the photo and didn't call authorities would be criminally liable, as would anyone who viewed a U-tube video of random kids playing unsafely. Indeed, under your theory, a picture of a child soldier in Sudan would require a call to alert the authorities that somewhere a child was being harmed. This statue was never meant to penalize such behavior, nor criminalize most of the population and it is dangerous, and irresponsible to suggest otherwise publicly.

Here there is no specificity, no indication even that a subject child might be residing in the jurisdiction. Though it's pretty to think that the law might require such vigilance, absent specificity, it most certainly doesn't.

Yours was a truly shameful instance of ignorance in the service of ideology.

An honest academic would endeavor to correct the situation. I certainly hope you will.

Sincerely,

David Feige

____________________

Dear Mr. Feige,

Thank you for your response to our editorial letter published in the _______this week. Please note that I am an attorney, licensed in Texas, in addition to being a psychologist. As for whether or not there have been any criminal prosecutions of persons for similar offenses, I was in court in Harris County, Texas, three weeks ago and watched a man receive seven years probation for possession of a single picture of a 15 year old nude child in which the face was obscured. There are no evidence that the model was a know person to the man, simply that he was guilty of possession of that picture of some unknown person. The Judge, Brock Thomas, even lectured the defendant, an indicating that he gave a light sentence.

One does not need to know the identity of the child in order to report abuse or neglect and that is not a requirement of the law in our jurisdiction. Child abuse reporting laws are designed not only to protect children but to work in tandem with the criminal code that is designed to punish those who abuse children.

Now, as for required reporting, which seems to be the principle problem you note with our letter -- Texas law is quite clear in making everyone report who has reason to believe that a child has been abused or neglected. Specifically, Texas Family Code Section 261.101 is as follows:

§ 261.101. PERSONS REQUIRED TO REPORT; TIME TO
REPORT. (a) A person having cause to believe that a child's
physical or mental health or welfare has been adversely affected by
abuse or neglect by any person shall immediately make a report as
provided by this subchapter.
(b) If a professional has cause to believe that a child has
been abused or neglected or may be abused or neglected, or that a
child is a victim of an offense under Section 21.11, Penal Code, and
the professional has cause to believe that the child has been abused
as defined by Section 261.001 or 261.401, the professional shall
make a report not later than the 48th hour after the hour the
professional first suspects that the child has been or may be abused
or neglected or is a victim of an offense under Section 21.11, Penal
Code. A professional may not delegate to or rely on another person
to make the report. In this subsection, "professional" means an
individual who is licensed or certified by the state or who is an
employee of a facility licensed, certified, or operated by the
state and who, in the normal course of official duties or duties for
which a license or certification is required, has direct contact
with children. The term includes teachers, nurses, doctors,
day-care employees, employees of a clinic or health care facility
that provides reproductive services, juvenile probation officers,
and juvenile detention or correctional officers.
(c) The requirement to report under this section applies
without exception to an individual whose personal communications
may otherwise be privileged, including an attorney, a member of the
clergy, a medical practitioner, a social worker, a mental health
professional, and an employee of a clinic or health care facility
that provides reproductive services.
(d) Unless waived in writing by the person making the
report, the identity of an individual making a report under this
chapter is confidential and may be disclosed only:
(1) as provided by Section 261.201; or
(2) to a law enforcement officer for the purposes of
conducting a criminal investigation of the report.

If you want to review Texas law on this matter you can go to the Texas Statues at the following website:

http://tlo2.tlc.state.tx.us/statutes/fa.toc.htm

I understand that others may have different views of reporting, just as Randy Cohen did. I have the view expressed in our letter and believe that Texas law requires it. Other jurisdictions may be different. Fair enough.

Now, how in the world did you happen to pick up this letter from a Texas newspaper when you live in New York?

Sincerely,

______

____________________________

Dear Mr. ______,

Thanks for your thoughtful reply. I did check the statute before I wrote you, but my analysis of it is the same. You mention a case in which someone was just sentenced (and presumably required to register as a sex offender, rendering him unemployable) for possession of a single photo in which the face is obscured. If anything such a thing supports Mr. Cohen's position concerning the rather severe sanctions he mentions. The fact that the model wasn't known to the possessor of the image in no way undermines my argument. It goes without saying that the vast number of images are of children unknown to the possessor, nor is that a requirement for securing a conviction in a possession case. But that is not the question here, nor does it rehabilitate your erroneous reading of the statute.

When I asked whether anyone had been prosecuted under the section, I was asking about the failure to report section. Obviously Texas and every other jurisdiction pursues child exploitation and pornography cases very very zealously. So I re-iterate the question: Has any citizen (and here I think we can agree the the definition in the statue would not render the writer of the letter a "professional") been prosecuted for not calling the police concerning harm to an unknown child? I think the answer is obvious--no. Because such charges could not be brought.






Assuming your e-mail renders them, you've just seen a severely malnourished child (one of the sections) and one who is obviously far too young to be carrying a firearm. Will you be calling the police to report these? And if not, how is this distinguishable?

Though almost every jurisdiction has laws similar to the one you cite, there is, so far as I know never been a court anywhere in this country or in Canada that has taken your position or validated your reading of the statute. Moreover, I am interested in how you'd argue the question of harm: does looking at the picture unbeknownst to the child "adversely affect that child's physical or mental health or welfare." And if so how? (bearing in mind that the economic arguments fail in this context) Or is that the production of the photo? If not, what is the specific adverse effect on that child?

Anyway, I came to the letter because Randy is a friend who was deluged by lots of angry mail some of which made the claim that there was a duty to report. Being a conscientious guy he asked me to look into it and tell him what I thought. Given what I've uncovered I believe such suggestions are grossly irresponsible. I came across your letter in looking into the matter, and, you should know wrote to you completely on my own, without asking (nor informing Randy that I was going to do that). I really do think it's dangerous to try to impose on people an obligation particularly one that is as broad as you believe this to be, when there is, in my view, no reasonable legal ground on which to do so.

As I said, I've got no issue with disagreeing with the ethical analysis--as my father used to say, "that's what makes a market" but on the law stuff at least, I still think you might want to consider a retraction.

Best,

David.

________________________
Dear Mr. Feige,

A few years ago there was a criminal case brought In Harris County against some neighbors in an apartment complex where a child died from abuse. Given the extent of the damage done to the child over the course of his short life the prosecuting attorney figured the neighbors had to have known about the abuse and should have reported. I do not know what happened in that case. You are quite correct, failure to report cases would be rare and difficult of proof. The case that I cited in my letter that was edited from the published version is Bird v. W.C.W., 868 S.W.2d 767 (Tex. 1994) that deals with non-accusatory reporting. For the view of the Texas Supreme Court you might read that case.

You are also correct in that the law seems to require some extreme reporting such as child abuse that we see on television -- Remember Michael Jackson waving his baby over the balcony railing... There is another equitable (in Texas law and equity are in the same court) principle that has to be invoked in such situations -- the law will not require us to do something that is futile (don't flog a dead horse). Our criminal laws are designed, in part, to stop trafficking in materials that society considers offensive, including illegal drugs and child pornography. Trafficking involves a provider and a consumer. Payment for the illegal drugs or images is irrelevant; however, quantity is important to punishment.

If you talk to Mr. Cohen about what you find as you look at this matter, please also indicate to him that both Dr______ and I understand the difference in law and ethics (that comment was edited also) and that analysis under either law or ethics may lead to different conclusions. However, ethics generally set a higher standard of conduct than laws do. We expect that children who are victimized in whatever context deserve protection. The poor zhlub who got seven years probation for a single picture got way more punishment than I would have given him had I been on the bench, but he did need to stop that conduct, just as I believe that the boss in Mr. Cohen's article needs to stop gathering illegal images on his computer.

__________________

Hi Again,

I think we're getting somewhere--and your Michael Jackson analogy is good. The thing is, even there, we KNEW who the kid was--Michel Jackson's child. So with this law, according to your reading, you and most Texans have already comitted a crime by having seen it and not reported it and yet you want to argue that it's even broader? I just don't see it.

And as I said--the neighbor cases in which a tortured kid is screaming for help while getting burned alive are exactly the kinds of cases we SHOULD bring and the instances in which reporting is genuinely mandated. As I said in my first e-mail, if the guy had recognized his neighbor's daughter then in BC and in Texas and in several other jurisdictions, he'd have a duty to report.

Bird, by the way, helps my position--insofar as it expressly declines to adopt the reasoning of Tarasoff setting an even higher standard.

But let me put this another way. You've just admitted to having committed, by your own definition, a crime (re: Michael Jackson). Now am I obligated to report that to the Bar or the licensing board of a professional psychological association? I ask not because I'd do it, but to illustrate the reason that we shouldn't and don't attach consequences to such omissions. Moreover, I'd suggest that if I did (again I won't--it's only hyperbolic) they'd find against my complaint and find that you had no duty to report Michael Jackson, just as this IT guy had no LEGAL duty to report his boss. This is why statutes are construed narrowly and why, in the end, your assertion about duty to report is incorrect.

If I've managed to convince you, do tell the ______ to retract the statement. And if not, it's been a lovely exchange. I'll forward some of this to Randy--I think he'll be interested.

Meanwhile,
Yours in disagreement,

David.


________________________

Dear Mr. Feige,

Remember there is an equitable principle of not flogging a dead horse to be applied to the law rule of reporting. I acknowledge that I violated the Texas reporting rule when I failed to call CPS when I saw Michael Jackson endanger his child but equity suggests that I not be prosecuted for that omission since Texas has no jurisdiction. In the case Mr. Cohen presented, the employee does not know the age of the depicted child or know all the children of the boss, his nieces and nephews, friend's children, etc. to know whether the depicted child is a minor or among those possibly known to the boss; those matters are for the proper authorities to discover. Again I am left to believe that reporting is the best ethical and legal approach to the problem for the employee.

One thing mentioned by Mr. Cohen and rejected was for the employee to clean the hard drive of the questionable images -- that does little except to protect the company. I have tired to find an ethics code for information specialists but have been unsuccessful. However, the one IT person whom I consulted said she would feel obliged to report what was found, at least within the context of the company and perhaps more widely depending upon what was depicted. She has headed several large IT programs; I respect her judgment but understand that since she was worked in public heath care and academic institutions she may be somewhat biased. In your work to discover what the standard for conduct is I hope you will talk with some IT professionals in large corporations to see what they might do with the scenario presented by Mr. Cohen.

______________________

Hi again,
Thanks for this. I will looks around, though in the bit I have done, I've gotten divergent answers (which, of course is why it poses an interesting dilemma in the first place. As to equity as opposed to law, this is precisely the problem: There is little equity in the law in this area and frankly, (as the letters and comments I've seen on this matter amply demonstrate) scant tolerance for dissent. That's precisely why we can't effectively make equitable arguments in court--they come down to either sentencing arguments or jury nullification arguments, and if you're making either of those, you've already lost your license, your livelihood or your liberty.

Thanks for the exchange….

Friend fight

My good friend Randy Cohen, is being taken to task quite a bit recently for a courageous column he wrote in the New York Times Magazine.

Here's the question:

I am an Internet technician. While installing software on my company’s computer network, I happened on a lot of pornographic pictures in the president’s personal directory, including some of young children — clearly less than 18, possibly early teens. It is probably illegal and is absolutely immoral. Must I call the police? I think so, but I need my job.
S.M.N., Vancouver


Yes, she's actually over 18 but can you tell?

Randy's answer was, in essence, do nothing. He wisely pointed out the situation was fraught with uncertainty (see above), and went on to discuss the obscene sentencing scheme for mere possession of images. In the end he opted to counsel silence. Not surprisingly the comments came fast and furious, including this from our friend Daniel Radosh.

The vitriol laden nonsense was to be expected given the current hysteria about child molestation, but frighteningly, there were some who made the disturbing argument that pursuant to the BC Child, Family and Community Service Act everyone (including the author of the letter) would have a duty to report. Now this argument has gained some traction, but it is in essence total nonsense and it's worth taking a moment to debunk.

The law cited above is quite similar to many here in the US. Almost every jurisdiction has child protective laws on the books and most impose reporting requirements. But here, as with everywhere, the condition precedent to the reporting requirement is some specific knowledge of a child being harmed. This is the critical bit--"A" child, as used in the statute, contemplates a particular child and the goal of the statute is to deal with children in danger in the context of a family.

Now if S.M.N had seen a picture of Maggie--his next door neighbor's 10 year old--in a sexually compromising position, then I'd agree he'd likely be obligated to report that abuse--but he'd be telling on Maggie's parents, not on the president of the company, because Maggie's parents had created the conditions contemplated by the statue. Here, with random pictures of unidentifiable kids who may or may not be in the jurisdiction, there is certainly no obligation at all. Under the critics bizarre reading of the statue, if a magazine published a photo of a woman hitting her child, every singe citizen who saw the photo and didn't call authorities would be criminally liable, as would anyone who viewed a U-tube video of random kids playing unsafely. Indeed, under her theory, a picture of a child soldier in Sudan would require a call to alert the authorities that somewhere a child was being harmed. This statue was never meant to penalize such behavior, nor criminalize most of the population.

Here there is no specificity, no indication even that a subject child might be residing in the jurisdiction. Though it's pretty to think that the law might require such vigilance, absent specificity, it most certainly doesn't.

In the end, despite the backlash, Randy's position is absolutely correct, and he deserves kudos for staking out and defending a proper if very unpopular position.

This is what we do to our citizens?

This image horrifies me.



This is Jose Padilla, an American citizen who has been subjected to torture right here in the US by our very own government. Held for more than 3 years without charges in a military brig, he is now being prosecuted in Miami. The government has made a motion to preclude the defense from discussing the conditions of his confinement. Why? It might inflame the jury. Imagine that.

Contemptless

A judge decided not to hold the police department in contempt despite the fact that it seems they've not done enough to investigate Colleen Brubaker, a chemist who is awaiting trial on allegations that she stole 2,700 painkiller pills to feed her own addiction.



Public defender Bradley Bridge believes hundreds of drug cases - involving pills or other drugs, such as cocaine - could be tainted by Brubaker's handling of them from the time she started in the lab in 1999 to her resignation in May. The District Attorney's Office has withdrawn 18 cases, the majority of them misdemeanors, because of Brubaker's involvement."