Friday, December 19, 2003
Thursday, December 18, 2003
A Tale of Two PostsAndrew Sullivan objects on Monday that Joe Wilson lacked class for calling members of the adminstration "f***ing a**holes and thugs". A fair critique, actually. While I'm guilty of some ad hominem invective myself in this blog, it's not effective argument, and I won't defend it as such. But then Tuesday, Sully's hawking t-shirts with a similar expletive. Granted, the t-shirts are tongue-in-cheek. But that doesn't render them classy. Perhaps in Sully's view, the expletives lack class only when they're directed at Beloved Leader.
Posted by Jeff Silver at 12/18/2003 01:22:00 PM
Wednesday, December 17, 2003
Self-Defense and Probable CauseLast week, Volokh posited that where a homicide is committed in self-defense, there is no probable cause to arrest. I responded here that self-defense being an affirmative defense, it ought not to figure in the probable cause determination. Volokh responded to that assertion, hewing to his original premise. He brought one case from the Northern District of Ohio in support of his theory. But there is contrary authority in the state courts. In Louisiana, for example, the Court of Appeals has held that
The police need not investigate all possible defenses or negate every explanation in determining whether probable cause to arrest exists.Jenkins v. Baldwin, 801 So. 2d 485, 496 (La. Ct. App. 2001). The Washington courts have held the same. See State v. Mull, ___ P.3d __ (Wash. Ct. App. 2001); McBride v. Walla Walla County, 95 Wash. App. 33, 40, review den. 138 Wash. 2d 1013 (1999).
I think Volokh's authority and those cited here are not in conflict. The Ohio case he cites finds fault with the arrest because the police had actual knowledge that there was a valid affirmative defense. The Louisiana and Washington cases hold that an officer is not obliged to investigate those possible defenses to a fare thee well. Obviously, there are many, many cases where actual knowledge of a defense and its validity won't be available to the police. I think the "actual knowledge of a valid defense" cases will be rare, but I'll concede that in a case where the officers have such knowledge, probable cause may be lacking. I certainly think the Texas case with which Volokh began this discussion is not one such. The officers can't have known the chain of events immediately preceding the killing, much less the dead man's history with the woman. I think (based on the reported facts) that the arrest there survives any motion to quash.
One more point. In my original post, I made a categorical assertion that we don't want police officers making these factual determinations in the field. While I think that it is a fundamentally sound view, not all policy makers agree. Maryland law, for example provides that in cases of domestic violence where there is mutual battery of spouses, the police officer "shall consider" whether one of the spouses was acting in self-defense in determining whether to arrest both. See Md. Crim Pro. s. 2-204(b). So there are some cases where the officer ought to be able to bring her experience and expertise to bear in deciding probable cause where a defense may exist. Homicides, however, ought not to be among them.
Posted by Jeff Silver at 12/17/2003 09:07:00 PM
Please pass the crowLast week, I accused Dubya of being dense in his handling of the Iraqi debt forgiveness/reconstruction contracts issues. Comes yesterday's announcement that France and Germany have agreed, in principle, to a Paris Club restructuring of Iraqi debt, and he's looking not quite as dense. Of course, there's a quid pro quo, as the article reveals that the decision on reconstruction contracts is open for discussion, as is the exact extent of the debt forgiveness. In other words, nothing new under the sun: There's a deal to be done, and Jim Baker is nothing if not a master deal maker.
In my defense, I'll say that this turn of events still leaves room for the possibility that Dubya is more Chauncey Gardner than Niccolo Machiavelli. It's possible, for example, that the Pentagon announcement was a carefully timed opening gambit in these negotiations. It's equally possible that (1) Pentagon blundered, (2) Dubya called Daddy, who told him to hire Jimmy Baker, (3) who told Dubya, look you ninny, you're going to have to open up the reconstruction contracts to the Euros if you want them to restructure debt. Which scenario is closer to the truth, I suppose, we'll learn only when the histories are written, and I'm not sure I'd put a wager down.
Posted by Jeff Silver at 12/17/2003 04:25:00 PM