O Brave New [Digital] World

 

The phrase “Digital Assets” has come to describe both assets purchased through a digital marketplace, such as songs in Apple’s iTunes store or placed into a cloud-based storage service, like Dropbox, as well as the pictures and comments we make on Facebook, Twitter, and Instagram.

The legal status of “Digital Rights” is in flux. Since at least 2007, Indiana has recognized the right of an executor of an estate to retrieve digital records from the holder of the records after someone’s death. See I.C. 29-1-13-1.1.

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You haven’t lived until you’ve heard his cover of Dylan’s “Mr. Tambourine Man,” and after that, you won’t want to.

Apple’s iTunes Store doesn’t really sell a user ownership of a song, at least not in the way that most people think about ownership. Instead, iTunes sells a license for a user to play a song during his/her lifetime. Contract law allows Apple broad discretion in determining the terms of its contracts with users.  As a result, Apple can prohibit a user from allowing a friend or relative to access his digital assets if the user is ill or unable to function. These types of digital rights, by contract, essentially evaporate upon the user’s death, and the executor or personal representative of an estate would have nothing to access. Some social media outlets, like Twitter and Facebook, have developed their own policy to classify an account as inactive or terminate it entirely, after receiving some documentation, such as a death certificate.

But what if someone is not acting as the executor of a deceased person’s estate, but merely acting under a Power of Attorney for a still-living person—does that person have the same right of access? Although Indiana’s Power of Attorney statutes, particularly I.C. 30-5-5-19, could be broadly interpreted to include a right to access digital assets, there has historically been another hurdle: licensing agreements.

Without a law that forces the data holders to recognize the authority granted in a Trust or Power of Attorney, the Terms of Service with the original user will control the assets.  The result is that if Tom signs a Power of Attorney to allow Jerry to access his assets while he is ill, that will work fine for the brick-and-mortar bank, real estate agent, or brokerage firm, but it may be impossible for Jerry to help Tom handle his purely-digital assets.

This all may seem like a silly, academic discussion. After all, how valuable are my digital William Shatner spoken-word albums or pictures of last summer’s road trip to see the World’s Largest Ball of Twine?  For now, perhaps it does seem a bit superfluous to think of access to my online assets as anything approaching an essential part of my estate planning. (And that’s exactly what it is: estate planning. Dead or alive, your stuff is your estate. Deciding who controls it when you can’t is the heart of estate planning.) But consider how many creative assets (songs, movies, books, pictures, etc.) you only have in a digital format.  Is it more than half yet? Next, consider how many more of these you have in digital-only formats than you did 10 years ago. If this digital category is growing, then every year that someone can’t help you manage these assets is a year your estate plan is less effective than it used to be.

Indiana’s upcoming legislative session will bring with it an attempt to expand the ability of fiduciaries (a term which includes trustees and those granted authority under a power of attorney—not just executors of estates) to access digital assets. The bill will attempt to adopt the Revised Uniform Access to Digital Assets Act (RUFADAA). Similar attempts in 2015 failed, but the bill’s language has been amended to address privacy concerns, and many expect it to become law. This would pave the way for a Power of Attorney to clearly convey authority to access both digital—and conventional—forms of assets.

 

 

Should States Stop Playing the Marriage License Game?

An Alabama bill proposes a solution to the debate over the definition of marriage that, while not unique, is at least new to modern audiences: get government out of the way. The bill would end the practice of issuing marriage licenses. Instead of government telling you that you may marry, you would tell the government that you have married.

Some will argue that this bill is simply a response to the Supreme Court’s recent gay marriage ruling in Obergefell v. Hodges. They’re not wrong. It’s hard to think that this bill would even exist without the Obergefell case bringing matters to a head. But so what? Legislatures routinely change laws in response to court decisions. Even if some supporting it are motivated by no more than the bitter taste of sour grapes, that’s hardly an argument that the proposal lacks merit.

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What should–and shouldn’t–the state do for the people? (Asheville, NC)

Stephanie Coontz, a professor of history at Evergreen State College has pointed out that marriage without the blessing/permission of government is not a new idea. Not until the 16th Century in Europe did the state take an active role in permitting marriages. Prior to that time the vow–not the law–created marriage. Even marriages that the church considered illicit (an exchange of vows outside the church) were still deemed marriages.  Coontz also notes that American colonies generally required only that marriages be registered. Until the mid-1800’s American States would still allow mere cohabitation as proof of marriage. Indiana continued to recognize common law marriages well into the 1950s.

People willing to leave public comments on the interwebs tend to say not-so-nice things about others as a rule, and opinion about the Alabama proposal was no different. “Stupid,” “1950s social values” and the inevitable comparison to separate drinking fountains dominated a recent comment section of a local news article. One commenter even said that the bill was an attempt to “dehumanize us.”  I assume this meant dehumanize gays, not dehumanize internet comments, which I don’t believe is even possible.

Is it really so surprising that proposed legislation would follow in the wake of such a landmark SCOTUS decision? Courts are not supposed to be active institutions, but reactive ones. Is judicial activism now so commonplace, and legislative complacency so rampant, that when a legislature—the entity actually elected to make changes to the law—engages in activism of its own the populace must cry foul?

*** On a side note, “Judicial activism” as an insult is quickly approaching Red Scare status. At some point after 1990, calling someone a socialist in polite society meant that reasonable people should question the accuser, not the accused. But at least that name-calling could be criticized as one-sided, since a socialist represented a particular political viewpoint, and so his attackers had an opposing view. “Judicial activism” is politically neutral activity in theory (if not in practice), and can apply equally to the substitution of any judicial view for the will of the legislature. But no matter. Like many perfectly accurate phrases before it, it’s sure to be deemed an antiquated, unfashionable dog whistle signaling some evil and unspoken larger meaning–though deciphering the meaning always seems to need a Rosetta Stone of political correctness. Its detractors will be sure to replace it with a slur far a more gentile, if less lucid. I, for one, will lament its complete unavailability at some point in the near future. So long, “Judicial activism,” we hardly knew ye.***

So who are the winners and losers if States start getting out of the marriage business entirely?

For some conservatives, a more passive role for the state may prevent them from choosing between violating their consciences and keeping government jobs. (Though if former IRS chief Lois Learner’s actions are any indication, righties aren’t much welcome as civil servants anyway).  For some liberals, the proposal would give them the freedom they seek, and then some. Not only would any two people be allowed to marry, it would be nearly impossible for the state to regulate how the marriage contract is entered into or who solemnizes it. And despite what an hour of MSNBC or FOX News would suggest, I suspect most gay couples aren’t really interested in using their wedding ceremony as political theater—knowing in their sunset years they will fondly think back on the day they tied the knot, expressed their commitment, and made that redneck probate clerk the subject of some serious HuffPo clickbait. No, for most people, it doesn’t work like that. Non-deranged folks want to marry surrounded by people happy for them, not someone resentful because the bronze bust representing the enduring legacy of Justice Kennedy needed polishing. (Just kidding! There’s no bust. It’s a life-sized Ronaldo-esque statue and on the first Monday each October, it is appeased with sacrifices of clerks from middling law schools.) It’s not sacrilege or lunacy for honest people on all sides to seriously consider removing the appendix of licensing marriages from the corpus of government. What does anyone have to lose?

The casual observer might assume that the Supreme Court’s decision ended the issue, and any further legislation is unhealthy because it keeps us fighting. The Obergefell decision does seem, on its face, to require states provide marriage licenses. However, the Court did not seem to contemplate a State not giving marriage licenses to anybody, but the Due Process implications of providing licenses to some citizens and not others.

Besides, the issue wasn’t even over when it was over. Despite the canard that plural marriages (polygamy) had no logical correlation to the gay marriage issue, such a debate is coming. Chief Justice Roberts anticipated as much in his dissent:

It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage. If “[t]here is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices,” . . .  why would there be any less dignity in the bond between three people who, in exercising their autonomy, seek to make the profound choice to marry?

In fact, the other shoe has already dropped. Less than a month after Obergefell, a Montana man, Nathan Collier, already voiced his intent to sue if he is denied a marriage license to marry a second wife, a contest he considers his own fight for “marriage equality.” More plural marriage proponents are sure to follow. USA Today recently cited a 2012 survey of 4,000 polyamorous individuals, and 66% reported being open to plural marriage. In the not-too-distant future, a trial judge with a polygamous marriage license application in one hand and Obergefell in the other may have only two choices: invalidate the state’s unconstitutional exclusion of plural marriage folks from marriage licensing requirements, or become . . . a judicial activist. (McCarthyism!)

But there are factions on both sides of the issue that won’t tolerate States bowing out of the marriage license game. Some gay marriage advocates won’t like this at all because it’s not freedom that they’re after. It’s state-sanctioned acceptance. To them, it’s not enough that their relationships merely be allowed. They must be approved. Like the bratty teenager who refuses to simply raid the liquor cabinet the weekend her parents are away, her self-worth demands she badger them with sophomoric rationalizations about why no sane society would restrict a sixteen year-old from downing Mad Dog 20/20 while Mom enjoys her after-dinner sherry.  Dad eventually gives in, though more from battle fatigue than persuasion. Her victory parade is complete when she boasts to her friends that she convinced her parents to finally see the righteousness of her cause.

Likewise, some gay marriage opponents will also oppose the new proposal. They remain committed to believing that official legal rejection of gay marriage is the only acceptable answer, however diminishing its chances. If the state licensing requirement disappears entirely, the clock will have run out on their cause, and the scoreboard’s tally is not in their favor.

For these loudest voices in the echo chamber, social reformation must trump personal freedom, for social reform cannot be a private affair. For them, the Alabama bill must be opposed. Angered at the prospect of winning without continuing the fight, (or losing without a rematch) their identity depends on dragging their opponent back onto the field for humiliation. No, this proposal just won’t do. The contest for marriage equality cannot be won by forfeit.

Finally, to libertarians, this may be a panacea. Imagine what society could do if government could just get out of the business of moralizing and back to legalizing weed. Wait–on second thought, forget libertarians. Maybe we should let the adults continue the conversation.

To Tailgate or Legislate? That is the Question.

Rep. Dave Ober of Albion, Indiana, has proposed language be added to a motor vehicle bill at the General Assembly this week that would clarify the responsibility of drivers not to lollygag in the passing lane. Including police authority to ticket a slow driver. That’s a ticket for not letting someone pass you fast enough. Pardon me while I assume the get-off-my-lawn cranky old guy stance.

When I learned the rules of the road, a slow poke in the passing lane was irritating, but not so problematic that police action was necessary. Slow-laners suffered from a lack of social awareness, a form of bad manners. Like cousin Billy with his elbows on the table, these folks needed education in the customs of polite society. Pulling up behind a Sunday Driver so that you occupied most of his rear-view mirror politely signaled the desire to pass. This reminded him–kindly, but firmly–that the passing lane has a purpose.  In rare circumstances where we needed a more noticeable signal, a quick flash of the headlights would catch his eye and bring the point home.

Alas, gentle social rules of the road seem to be giving way to the long arm of the law. It’s a measure of how much abrasiveness society tolerates that we eschew subtle Emily Post-style methods of communication with fellow drivers in favor of Tony Stewart bluntness. Instead of whispering suggested behavior, we scream for it. Instead of leading with the carrot, we raise the stick of punishment.

Ticketing our way to an open road?
Ticketing our way to an open road?

While police officers certainly must pursue both dangerous (speeding) and criminal (drunk driving) activity, behavior that is merely impolite should stay outside the scope of an officer’s duties. The use of police to get slow-movers out of the passing lane certainly risks overburdening police with trivial matters. One lawmaker supporting the amendment admitted that it was a “pet peeve” to be behind slow drivers in the passing lane, which is a pretty low standard for lawmaking.

Ticketing slow passing lane drivers would subvert cooperation in favor or rule-enforcement. There is a reason you’ve never seen a zebra-clad referee on the fairway of the 18th hole. That’s not to say golf has no rules. But golf rules are meant to be self-enforced. And like the passing lane slowpoke, a golf cheat is either an ignorant doofus, a cad, or a bit of both. Either way, dealing with him is everybody’s job, and outsourcing it would change the nature of golf. Likewise, Ober’s amendment would change the nature of road rules, at least at the margins, pushing more undesirable behavior from irksome to illegal, thereby leaving us with less to do corporately, socially.

It used to be considered a sign of patience–even inner strength–to tolerate boorish, impolite behavior. Not “tolerate” in the modern sense. Modern toleration is unfettered celebration, the way one must tolerate being handed a revolting craft beer because he’s too chicken to say out loud that pumpkin, cinnamon, and nutmeg just don’t make good dance partners inside a beer. Rather, tolerate in the sense that being able to endure the ill-treatment of others without ruin (to us) or retaliation (to them) makes us better people. What grandad called “building character.” But building character is hard and takes time. Think of the time I could save if only cops could fix all my pet peeves:

Somebody in the slow lane is in my way. It’s the skinny pedal on the right, Einstein!

That moron is writing a check for groceries and digging around for coupons. They are just groceries, lady!

This idiot in front of me is actually reading the McDonald’s menu–it’s the same at every McDonald’s, buddy, stop wasting my time!

Driving has become an inherently social activity. We spend more time interacting with each other as fellow drivers than we do as fellow neighbors, shoppers, sports fans, or church-goers. Even though it’s not deep interaction, it is frequent. Several times each day, we trust our safety to others, communicating through turn signals, head nods, speed variations, and hand gestures–some more expressive than others. We acknowledge both approval and disapproval in the way others drive, and those expressions are not invalid simply because they are not enshrined into law. The law is not the sole method by which society approves or disapproves of behavior, and there’s an argument to be made that it is not the most effective method, either. Each time we add to the law’s burden by banning behavior which is merely rude or inconsiderate, it’s a sign (and perhaps a reason) that we have given up influencing better behavior ourselves.

 

Of Ferguson and Ham Sandwiches

Aside from the usual noise over events in Ferguson, MO recently, which have lurched awkwardly from news(-ish) event coverage, to protest coverage, to riot coverage, I found two brief articles that shed light on the grand jury process. The Wall Street Journal has an article by Ashby Jones about the legal standards behind an officer’s use of force and how grand juries treat similar cases.  Over on SCOTUSBlog, Eric Citron writes about the use of exculpatory (defendant-friendly) evidence in grand jury proceedings. The grand jury is a mystery to most Americans, who have either forgotten what they learned in their ninth grade civics class, or were never taught about it. Of course, some of us are just too invested in Dancing With the Stars to learn about a part of the justice system that really should have seen its own “Schoolhouse Rock” song by now. (Spoiler: The Duck Dynasty girl came in second).

Themis 3439Interestingly, Citron notes that in federal prosecutions, grand juries rarely refuse to return an indictment. On its face, this is consistent with the famous quip attributed to New York Chief Judge Sol Watchler, that a prosecutor could “indict a ham sandwich” if he wanted. But the WSJ article quotes a criminal justice professor who claims that indictments against police officers for wrongful shootings are particularly difficult to obtain. Aside form the fact that Ferguson is a decidedly state-court matter and not a federal prosecution, it’s difficult to imagine the cause of the discrepancy. Why would grand juries, generally quick to return an indictment when a prosecutor presents evidence of probable cause, be particularly slow to do so when the target is a cop accused of wrongful or excessive use of force? Perhaps a reluctance to second-guess someone in a position of respect. Perhaps, as the WSJ notes, the test of whether the officer’s actions were “objectively reasonable in light of the facts and circumstances confronting them” insists that the jurors inspect the facts up-close, and allow some deference for the brief window of time in which officers are called to act.

Citron’s article suggests that Ferguson Prosecutor Robert McCulloch did not really pull out all the stops to get an indictment because he introduced evidence of both sides: witnesses and facts to support probable cause, and evidence which undermined the state’s case. The Supreme Court has ruled that the Constitution does not require a prosecutor to present exculpatory evidence to a grand jury. It is, after all, not a test of guilt but a test of whether the facts support charging someone with a crime. Of course, withholding exculpatory evidence at trial–where guilt is determined–is another matter entirely and amounts to prosecutorial misconduct. But a grand jury is an internal proceeding.

Imagine a football coach wants to determine the skills of his team’s offense. One coach might evaluate the offense without anyone else on the field, making sure they know all the plays in the play book. Another coach might want to see how it looks against a competent defense, because he’s less concerned about running clean routes than facing a challenge, so he calls up a full scrimmage.  Which approach is better depends on the coach’s goals and which technique better prepares his team for the big game.

The same could be said of a prosecutor’s goals. Is he to secure indictments or convictions? While both are deterrents to crime, the indictment is a always a partial measure–a temporary inconvenience–embarrassing and costly and perhaps even offensive, but always minor compared to a conviction. There’s a reason that nobody ever said, “That loser dating my sister is an indicted felon!” Convicted felon is the preferred slur (though the phrase is actually redundant). Also, a prosecutor with 100 indictments and no convictions probably should be looking for a new gig. It’s the conviction, not the indictment, that is the expression of the state’s authority, the cop’s vindication, and the prosecutor’s ability to pay his mortgage.

But how best to convict the burglar, the banker, or the barista of a crime is the real puzzle. A grand jury evaluation unhindered by exculpatory evidence would more likely return an indictment, and thereby force a plea agreement, even where the state’s evidence is not overwhelming. The result? More convictions through volume.  On the other hand, indictments that have overcome a rugged and more rounded examination by the grand jury might be considered battle tested, and result in a stronger, more compelling case, either for trial or by bringing a defendant to the bargaining table. The result? More convictions through precision.

By presenting exculpatory evidence, Prosecutor McCullough undoubtedly made it more likely that the officer would not be indicted. But the non-indictment from the grand jury suggests he may have also prevented a long, drawn-out trial process that would only have ended in an acquittal. Comments on this approach portrayed McCullough as both hero and zero. The Huffington Post called his actions “bizarre,” while William I. Aronwald, a former assistant district attorney and federal prosecutor, said that McCullough handled the situation “perfectly.”

Reasonable people can disagree about whether the Ferguson grand jury made the right decision. But 70 hours of testimony is a substantial amount of information. I dare say the average critic–or blind supporter–of the decision probably has not read through it. I sure won’t. And since grand jury proceedings do not occur in a public forum, like a criminal jury trial does, all praise and criticism happens with a heightened level of ignorance. Even a dry transcript does not always give the full account of a witness’s testimony, and courts have long held that a witness’s demeanor is relevant to a jury’s evaluation of his truthfulness.

More importantly, grand jury decisions are not sweeping democratic policy statements, like Acts of Congress. Broad conclusions about culture, racial identity, or the landscape of what America has become–all perched atop a single grand jury decision–are precarious at best. Improving the justice system is a slow and tedious process, and the loudest voices in the Ferguson melee simply don’t have the patience for it. MSNBC and Twitter are ill-suited to the task. Those with a sincere interest in institutional changes that improve the justice system will use the voting booth, not the hashtag.

 

High Wire Risk and Daredevil Litigation

Nik Wallenda became the latest person to capture the nation’s attention with a crazy stunt that did not involve handing a microphone to Vice President Biden.

On Sunday, Nik Wallenda became the latest person to capture the nation’s attention with a crazy stunt that did not involve handing a microphone to Vice President Biden. In case you missed it, Wallenda successfully walked across the Chicago River on a wire some 50-stories up in the air. While the risk associated with crossing any street in Chicago is substantial these days, 5.8 million people will actually watch Wallenda.
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Normal people wonder at the bravery (or insanity) of Wallenda’s actions, or marvel at his skill. Lawyers, insurance adjusters, and PR agents tend to take a more gloomy view of human events. So, consider what a litigious people might do in the wake of the modern daredevil’s actions.

Scenario #1: Tragedy happens and the Wallendas sue the City, the State, and everybody else they can think of.

Most defendants would get out of this suit early, based on the extreme risk assumed by Wallenda. As it was, his most likely injury was probably carpal tunnel syndrome from all the liability waivers that he signed. However, if someone took on a special duty, like rigging the wire or other equipment, and the family could prove this contributed to the outcome, there might be some contractual violation. Such a contract would probably already limit the loss through liquidated damages, which are damages negotiated in advance in a contract.

chicago1Scenario #2: Tragedy happens and local TV crew witnesses horrific ending and sues its network and local affiliate for the emotional trauma.

At least some TV crews were required to sign a waiver explicitly prohibiting such a lawsuit in the event of a tragedy. But even without such a magic bean, it’s doubtful that a suit like this would get far. A TV reporter has a certain assumed risk to the facts or events that he or she may witness.

Scenario #3: Tragedy happens and the FCC fines the Discovery channel for a violation of broadcast guidelines.

The FCC has no jurisdiction over cable programming directly, but any over-the-air station that carried the event live could be subject to fines which the station may or may not successfully pass along to Discovery. For its part, Discovery ran a 10 second delay in the broadcast, just in case.

Scenario #4: The State of Illinois fines the City and/or the Wallendas for failing to put up a net.

This one might have some teeth, if the state fined the person or entity truly responsible. The ABC affiliate in Chicago noted this curiosity:

Chicago city officials ignored a state law requiring safety nets for aerial acts higher than 20 feet, saying the law wasn’t intended for “elite” performers.

Ignored. Not “applied for a waiver to” or “found an arguable loophole for.” Simply ignored. If it weren’t Chicago, that part of the story may have caused a bit more of a stir than it did. It’s unclear whether the city or the performer is ultimately responsible for the violation, or the penalties. Either way, the violation seems undisputed. Of course, since no tragedy happened, it will almost certainly be forgotten. But if Chicago can get the deceased behind the curtain on polling day, whose to say the State of Illinois wouldn’t issue a fine to Wallenda for this violation if something had gone wrong?

Scenario #5: A random woman’s reaction to the successful stunt, filmed by the Discovery Channel, becomes a successful, if embarrassing, internet gif.

Assuming the woman was not in a private place when her image was taken, she’s probably going to lose. The right to privacy does not extend to my right not to be photographed or videoed in a public place. If I’m walking down the street, photos of me are fair game. If that’s not enough, the Discovery Channel certainly had its bases covered on the scene:chicago2

Be Annoyed. Be Very Annoyed.

How is the Constitution like my car keys? They both show up where you least expect them. The issue of whether someone drunk in public is guilty of a crime only if that person is annoying seems an unlikely candidate for a lesson in Constitutional law. But like the trunk of an ’86 Grand Am in Terre Haute, the law is full of surprises.

I wrote earlier this year about the futility in attempting to define what is “annoying.” That involved a Michigan city ordinance which was probably doomed to failure for its vagueness. It looks like the “void for vagueness” virus has migrated south.

Indiana recently tangled itself in a legal definition of annoying when it updated the state’s public intoxication law. Before the changes, the crime of Public Intoxication did not require proof that the intoxicated person actually did anything to anyone, or the public at large. The mere status of being intoxicated in public was illegal. The new(ish) law, which took effect July 1, 2012, says that a person commits the crime of Public Intoxication, when he is intoxicated in a public place and either endangers himself or others, breaches the peace, or “harasses, annoys, or alarms another person.” It’s this last phrase that is causing the ruckus.

In February, the Indiana Court of Appeals held the new law unconstitutionally vague. Specifically, the Court of Appeals pointed to the Webster’s definition of “annoy” since no definition was in the law. It then said that this definition “may encompass a vast array of human behavior,” and that the law provides no guidance for “distinguishing between acceptable and annoying conduct.” Morgan v. State, 49A02-1304-CR-386, 2014 WL 561665 (Ind. Ct. App. Feb. 13, 2014) transfer granted, opinion vacated, 2014 WL 1910503 (Ind. May 8, 2014). I happen to believe that careless use of quotation marks fits well within the “vast array” of behavior that could be annoying, as illustrated by my local gas station:

Grammar annoyances are purgatory for the literate.
Grammar annoyances are purgatory for the literate.

But maybe that’s just me. And that’s the point. Vagueness is a legislative no-no that falls under the broad Due Process rights in the Constitution. It’s bad because a law that is too vague does not put citizens on notice for what is–and is not–permissible. Thus, it’s not fair to enforce a law that has essential terms that aren’t clearly defined. It leads to subjectivity, and subjectivity in the eye of the law enforcer (police, prosecutor, Governor) undermines the authority and legitimacy of representative law-making. So, yes, determining whether a drunk is annoying can be a full blown Constitutional issue. Who’da thunk it?

The State Supreme Court heard oral arguments on this case just this week which are worth watching, if you’re into that sort of thing. The case even resulted in some Jimmy Fallon material:

The Not-So-Grand Inquisitor: Equal Justice and Police Interrogations in Indiana

Much of what passes for interesting reading for lawyers is just mind-numbingly tedious procedural minutia to everyone else. But the recent Bond v. State decision from the Indiana Supreme Court actually poses some questions that non-lawyers might find interesting, too.  At issue is how far police can go when using deceptive methods to obtain a confession from a suspect. The case has ignited much discussion in legal circles about criminal justice, police investigatory techniques, and race.

Suppose the police suspect Bert and Ernie of robbing a liquor store and shooting a clerk in the process, and the detectives arrest them both and put them in separate holding areas. They question Bert, and then Ernie. Then they return to Bert and tell him that Ernie has already confessed and if Bert would only fess up too, the prosecutor would be more likely to recommend a lenient sentence to the judge.

Of course, anyone who has seen Law & Order (or has an extremely cynical take on Sesame Street) knows that Ernie has not confessed. The police are lying to Bert. And there are endless variations on this lie. The police could claim to have Bert’s fingerprints.  Or that the liquor store clerk identified his photo from his hospital bed. Or that a surveillance video from the pawn shop across the street clearly identifies Bert and Ernie leaving the liquor store’s parking lot. The U.S. Supreme Court held long ago that the police may use deceptive methods when interrogating witnesses. Frazier v. Cupp, 394 U.S. 731 (1969).

ImageBut are there limits on deceptive police techniques? Sure. Imagine that the officer questioning Bert tells him that someone in the next room has Big Bird strapped to a car battery and standing in a bucket of water, and that the only choices that Bert has now are, “original, extra crispy, or confession.” So Bert signs the confession. Isn’t this just another deception used to trick him into confessing? No. In this case, Bert’s confession is coerced. Bert isn’t tricked into confessing, he’s forced into confessing. Big difference.  A permissible deception can’t trick an innocent person into confessing–at least in theory.  If Bert and Ernie are innocent, then the police assertion that Ernie “has already confessed” will only be met with bewilderment by Bert. However, threats to the life of Big Bird would cause even an innocent Bert to confess.

As long as Bert’s confession is not coerced or forced, then Bert’s motivation for making the confession can legally be based on a false premise, even a false premise the police create.

So how was Bond v. State noteworthy? In the Bond case, the detective told Bond that he would not receive a fair trial from people in Schererville and Crown Point because he is black.

While both the trial court and the Court of Appeals found the officer’s behavior deplorable, neither could say that it was illegal.  Since it was not illegal, the confession was admissible as evidence against Bond. However, the Indiana Supreme Court is more suited to make law than lower courts, and to consider the broader policy implications of rules of court procedure. In this case, the Court found that the technique of suggesting that Bond could not receive a fair trail because of his race was fundamentally different than a deception about the evidence against him. “[I]n this case Bond was intentionally deceived as to the fairness of the criminal justice system itself because of the color of his skin,” the Court noted.  It also said:

Regardless of the evidence held against him or the circumstances of the alleged crime, [Bond] was left with the unequivocal impression that because he was African American he would spend the rest of his life in jail. Unless he confessed. And in unfortunate days gone by, this might have been the case. But no one wants to go back to such a time or place in the courtroom, and so we will not allow even the perception of such inequality to enter the interrogation room.

Courts are normally utilitarian in their use of words, which seldom affords them the opportunity to be truly artful within a court opinion, but the Bond case was different than most. It provided an historic platform to look back at the progress of equal access to justice, and speak for–and to–the ages.  The Court continued:

As Dr. King did, we likewise “refuse to accept the view that mankind is so tragically bound to the starless midnight of racism.” Dr. Martin Luther King, Jr., Acceptance Speech at Nobel Peace Prize Ceremony (December 10, 1964). We simply cannot and will not risk this going further, and therefore draw a firm line today.

Thus . . . this deception by the detective tips the scale to involuntariness. We cannot tacitly countenance the erosion of everything so many have worked so hard to achieve in the realm of racial equality in the justice system—and continue to work to achieve—by disapproving of the statement but finding Bond’s confession nevertheless admissible.

As a practical matter, Bond’s confession is now inadmissible.  If Bond did commit a crime, the State will have to find other evidence if it wants to convict him.

A recent entry in the Indiana Law Blog described the feedback from the legal community surrounding this case.  One comment identified what it considered the “elephant in the room” of the Court’s opinion: was the representation the detective made true? What if Bond really can’t get a fair trial from a jury drawn from Schererville and Crown Point? This is not to single out any one community. Indiana’s racial history certainly has its jagged edges, and many of us have anecdotal evidence of racism, often associated–correctly or not–with entire communities. The point to ponder is whether such a technique is really a police deception at all if it’s true.

Another commenting attorney made the point that he has advised African-American clients that certain communities would be more likely to convict based on race, and that those clients have accepted plea agreements more readily as a result. So, the argument goes, how can it be unacceptable for a police detective to advise a criminal defendant of something that his own lawyer might say?  And is the lawyer to be reprimanded for his actions, or commended for frank and wise counsel to his clients?

In some respects, racial equality in the justice system is a victim of its own success. When racism was more widely accepted, objective evidence that a community would spawn racist juries would have been easier to come by. Today, racism is so widely condemned that it’s simply not possible to prove that a given community will always–or event predominantly–produce racially biased juries. So all we will ever have is anecdotal evidence, the “I knew a guy who . . .” stuff that legends are made of.

My support of the Bond decision does not require quantifying racially biased juries. If an African-American would confess, or accept a plea agreement more quickly, for fear that a jury would be racially motivated to convict him, then we need not prove actual racial bias in the justice system because the specter of racial bias has already caused harm.  Like a self-fulfilling prophesy, the fear of biased juries causes certain defendants to exercise less than the full panoply of rights given them by law, which is a harm all its own. The fear of biased results begets biased results. For a police officer–the embodiment of state power–to invoke that fear is inconsistent with the promise of equal justice under law.

If you’d like to sit in on more of this debate, the Supreme Court’s oral arguments are available online.