Moving Violations Turn Deadly

A couple of punks, Poxie and Slick, were on their way to Albuquerque from Chicago in a run of the mill flying car. Safety regulations prohibited anyone from operating a flying car below four meters and every flying car in the sky had multiple, redundant and undefeatable systems built in to prevent them from descending below that altitude, except when landing on special pads. Because they have figured out how to jimmy the safety devices, Poxie is flying the car at two meters so that he can speed. In a suburban neighborhood Poxie struck an eight year old girl, killing her immediately. The two left the scene as nonchalantly as they could, then stepped on it to escape. However by 10:15 am their flying car had been enveloped by a special police interceptor, the police had begun their interrogation and the detective technicians has begun reviewing data on the flying car’s “accumulator,” or black-box data recorder.

As it turned out the police only had circumstantial evidence of the impact, though there was an overwhelming amount of it, including an obstructed view video, the victim’s blood and tissue on the dented hood, black box data showing not only that the vehicle was at an illegal elevation at the time of the impact, but that the vehicle was habitually operated at illegal elevations, and more. Once they had gathered their evidence, which took less than thirty minutes, a police officer began the trial. But right before that he asked the defendants if they hit the girl, and told them also that if they answered “no” they would be polygraphed. Both answered yes, the trial was held, and sentence was pronounced. Poxie, the driver, was vaporized on the spot, but Slick, the mechanic who altered the “unalterable” vehicle was sentenced to a year on the Moon working in the government’s mechanics labs up there. Apparently they saw some mechanical potential in him and wanted his expertise in their shops. All of this happened within fifty-eight minutes.

This is a very short little story that raises a ton of questions. The broad issue here is a concept called judicial economy. Though I have heard mention of it once or twice in practice, the concept is literally drilled into the heads of all first and second year law students. Coming out of law school I was prepared to argue it at every turn. In actuality the only people who ever talk about it outside the law school classroom are those who decide on policy for the courts. The term speaks to the necessity that courts must balance the time it takes to resolve issues within litigation with everyone else’s rights to judicial access: It means that sometimes the court is going to take shortcuts to save time and money. Sometimes thought the courts and parties go too far, and the quality of justice that the court is capable of rendering is compromised. It seems that this is what has happened here, though as part of time-saving the court has removed itself entirely from the process – that is strike one against this policy.

I think the best way to discuss this story is to go through it and point out the broad violations as we would recognize them. This can be difficult some times because often with SF a reader must be willing to suspend disbelief. Unfortunately there really is no better way to dissect these types of stories from a legal perspective, and since the focus of most of them that focus on legal or public policy issues is to approach them from a skeptical point of view, I think that it will work.

The first was stated above; a criminal defendant should have access to a qualified finder of fact to judge him. This is not the same as a guarantee of a trial by jury. In our system that right is guaranteed by the U.S. Constitution. Instead this is about whether or not a criminal defendant has a right to a trial by a judge. In fact, neither the Constitution nor any state I am aware of guarantees this right (and in fact I have been involved in a few cases where the judge was not really a judge, but was actually a paralegal or an ex-police officer – all of them were on Native American Indian reservations that happened to have independent court systems set up), but a defendant does have the right to be tried at the very least by an independent finder of fact. In 10:01 A.M. Poxie and Slick were tried by a police officer – brethren to their accusers and to the investigators who uncovered all the evidence that helped convict them. I would argue that even if that officer behaves independently and exercises his own judgment, he is actually charged with upholding the laws, not interpreting them, and therefore cannot be a fair finder of fact.

I would also have thought that in a capital crime, which this apparently was, a jury would have been required in the interests of fairness. Our system requires the right to a jury trial (or a bench trial, at the defendant’s option) in all criminal prosecutions, as guaranteed by the 7th Amendment to the Constitution. That Amendment also guarantees a defendant the right to confront his accusers, for the court to have in place a process for getting witnesses in his favor, if any there are, and to have the assistance of counsel. None of that happened here.

There are also some potential evidentiary issues, though an appellate court would probably not bother getting to them unless they found that the admissions that the defendants gave were coerced or otherwise obtained incorrectly. To do that the court would inquire into exactly what was said. Here the officer said:

“After I ask the question and the answer is in the negative, I must inform you that you will tehn be subjected to a polygraph test. Is that understood?”

“Yeah,” said Slick.

“Here is the question,” said the officer with the clipboard. “Did you, Rodney Cooper, knowingly tamper with the controls of your Mark Nine Phaeton null-vehicle so as to enable tht same vehicle to traverse below the legal minimum allowable height on the alpha-type roadway when crossing a pedestrian mall?”

“Yes,” said Slick. Then he yelled to the hidden pickup, “Yes!”

That certainly sounds like a question that goes directly to the point of the inquiry, and the answer is damning. The problem there is two-fold: First, neither defendant was Mirandized, though with the state of criminal procedure in this story, I doubt that was a problem. The Supreme Court in Miranda, a criminal case from Arizona, articulated the rule that in custodial interrogations an accused be advised of his rights to counsel, trial and to remain silent. The effect of that rule now requires police to read a script to defendants. The rule was put into place because the courts thought in many cases that the investigating police were running roughshod over the rights of the accused in conducting their investigations. They believed that existing rights as guaranteed by the 5th Amendment were being abused by coercive police, so the police are now required to warn the accused of these rights whenever they are spoken to while in custody. In this story the Poxie and Slick were obviously in custody, as the police had apprehended them and forced them to sit in a room while the evidence was gathered.

Second, there was a veiled threat in the question – a threat of a polygraph test. Ordinarily polygraph tests are not admissible, as they do not pass the Daubert test*, (or any other test, including the Frye test, which asked only if the scientific information sought to be admitted as evidence was of the type generally accepted by the scientific community) for admissibility in a legal hearing. They essentially are untrustworthy in the eyes of the law. Although your employer is generally free to fire you for failing a test, you cannot be convicted of a crime for the same; the State must have other, more competent and more reliable evidence against you. Now, there is federal case law out there that says that police do not have to be honest with defendants. They can lie to them, though not about things that affect protected rights, and if that lie leads to admissible evidence, too bad for the defendant. That is why criminal lawyers are forever telling their clients on TV to just shut up until they get there. I imagine the same thing happens in real life. In this case though, they were threatened with a test that for us would not be admissible, though I doubt that would be enough to overturn a conviction, and I’m not just saying that because these guys were in fact guilty. In criminal constitutional cases you are not permitted to consider the defendant’s culpability. You can only examine whether or not their rights were violated. In this case, absent a Miranda issue, I just don’t think that they were. They were fooled, and they were fools, but that’s all.

What we have here essentially is a capital crime that is treated like a strict liability crime. A strict liability crime is one that a defendant is liable for as long as he performed the proscribed act, regardless of what was in his mind at the time. Running a red light is a strict liability crime: If you run one it does not matter if you were not paying attention or trying to squeeze between crossing cars. If you did it, you pay the same fine. Statutory rape is another example. If you have sex with a minor, even if you don’t know he or she is a minor, you will be convicted. This case is a capital case, so I assume that Slick and Poxie were convicted of something similar to first degree murder, and not manslaughter. Capital crimes are serious offenses, where it is generally required that the state prove either malice aforethought, intent to kill, or felony/murder (depending on the statutory structure). It was in this that the “court” took its largest jump, as the intentional act element of the crime was essentially ignored. Getting any deeper into this is going to bring up the capital punishment debate, which I just covered recently in the legal review of Steve Allen’s The Public Hating (Note: That review will be up shortly). Go over there if you want to have that debate, please.

One last word on licensing. In this story Poxie was accused of a further crime; that of driving on a suspended license. It seems that Poxie’s uncle carelessly caused a different traffic fatality, and as a result the state abrogated the right of any of his close blood relatives to drive because they were genetically predetermined to cause mayhem or murder themselves. That sounds pretty silly to me, and in our reality it would be attackable on the grounds that a license to drive is too valuable a thing to take away arbitrarily. In the Unites States all jurisdictions recognize that their job in policing the highways is to protect the public health and safety, but when they make the decision to revoke a user’s permission to drive, they have to do so only if doing so is a narrowly tailored way to achieve that goal. That approach protects the safety and health rights of the public, and the rights of the accused or convicted to resume ordinary economic activity as soon as possible. That is also why you see drunks back behind the wheel so often. It’s because society believes that without the ability to drive, economic interests will be greatly affected: In other words, the drunk will not be able to work enough to support himself and his family. Personally I can see that, though in the case of constant DUI drivers I also think its good to have a way to control them, and tossing away their right to drive whole cloth also tosses away the only real control mechanism you have over them, other than incarceration.

Anyway, about this story, as a cynical attempt to show the damage that can be caused when a defendant is only granted a right to a hearing, and not a full blown trial with all the constitutional protections, it succeeds pretty well. The problem is that the setting that the author chose is all too recognizable. It is basically our world with flying cars. Because of that it is very difficult to see how this kind of system could have developed, or how it is sustained. I just don’t buy it, and that makes it, in my opinion, bad SF.

* The Daubert test requires that evidence be relevant and reliable in order to be admitted at trial, and requires that eveidence be based on the scientific method. For example, was it subjected to peer review, is it empirically testable, is it generally accepted by the scientific community, are the margins of testable error known, etc.