Baltimore Prosecutors Withdraw Evidence Rather Than Talk About Police Department's Stingray Usage

from the should-go-back-to-simpler-days-of-planting-evidence-and-falsifying-reports dept

Fri, Nov 21st 2014 4:04am — Tim Cushing

They justify the use of Stingray devices (IMSI catchers/cell tower spoofers) by pointing out how great they are at catching criminals. They justify the secrecy surrounding them by claiming the release of any details will compromise investigations. And then they pull something like this.

Baltimore prosecutors withdrew key evidence in a robbery case Monday rather than reveal details of the cellphone tracking technology police used to gather it.

So… great for catching crooks but not all that great at keeping them caught. How embarrassing. That has to suck for Baltimore citizens, who have just discovered their local PD prizes non-disclosure agreements over putting bad guys away.

City police Det. John L. Haley, a member of a specialized phone tracking unit, said officers did not use the controversial device known as a stingray. But when pressed on how phones are tracked, he cited what he called a "nondisclosure agreement" with the FBI.

Which most people would take to mean don't go around spilling the details to normal citizens, family members or journalists. But as we've seen repeatedly, law enforcement agencies have taken this FBI-required NDA to mean (very conveniently, I might add) that they're allowed to tell no one. Goodbye, crusty old "due process" ideals. Hello, parallel construction.

But in this case, the judge responded with an obvious statement -- one that is made far too infrequently.

"You don't have a nondisclosure agreement with the court," Baltimore Circuit Judge Barry G. Williams replied.

Then Judge Williams called the PD's bluff: explain the evidence's origin or face contempt charges. Faced with this, the prosecution folded.

It's no secret the Baltimore Police Dept. has a Stingray device. Here's a document from 2009 containing the city council's approval of the Stingray purchase. Here's another document showing the PD's request for additional funds to upgrade the device. The general public is already aware of the device's existence and capabilities, and yet, the police balk at discussing it publicly, even if it means potentially damaging a prosecutor's case.

It's not just the phone-related evidence that's being withdrawn. It's everything derived from that Stingray-related search, including a handgun.

This isn't Judge Williams' first experience with police officers unwilling to discuss Stingray usage. The Baltimore Sun reports he also dealt with a non-discussion of the technology back in September. The device was used to track a phone (and a suspect) to a certain location. When Williams asked how the officers ascertained that the suspect actually had the phone on him, they actually invoked national security rather than answer the question.

"This kind of goes into Homeland Security issues, your honor," [Sgt. Scott] Danielczyk said.

Williams nailed this response, too.

"If it goes into Homeland Security issues, then the phone doesn't come in," Williams said. "I mean, this is simple. You can't just stop someone and not give me a reason."

That's how this is supposed to work. If law enforcement agencies want to deploy super-secret technology, then they shouldn't be able to drag evidence of unexplained origin into the courts with them. Allowing them to have it both ways steamrolls due process.

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Filed Under: baltimore, courts, non-disclosure, secrecy, stingray, surveillance

54 Comments

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That One Guy (profile), 21 Nov 2014 @ 2:23am

Kudos to the judge
Being willing to forbid evidence if it comes from a source that the defense can't, or isn't allowed, to challenge is something you see far too rarely these days, with far too many judges just rolling over as soon as 'National Security: Because Terrorists!(tm)' is invoked, so awesome job by the judge for actually standing up for the rights of the public.

On a semi-related note, the fact that they were willing to withdraw key evidence rather than explain how they got it makes it pretty clear that the justification that they need the stingray towers to 'catch criminals' is nothing more than a nice sounding lie.

They are willing to let a potentially guilty individual walk rather than inform the court of just how they got the evidence against them, so clearly they believe the secrecy surrounding the stingray use/tech is of higher importance than actually catching and stopping criminals.
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Ehud Gavron (profile), 21 Nov 2014 @ 2:33am

Erosion of the exclusionary rule...
It's good to see one case where the exclusionary rule is applied judiciously. It's one of the cornerstones of Constitutional protection we THE INNOCENT have until proven guilty. Its erosion has had horrific results.

I'm surprised the cops didn't take the gun, the wallet, the credit card, and the keys and sue the property, because civil forfeiture. Good on the Judge for calling them on it.
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Anonymous Coward, 21 Nov 2014 @ 4:30am

Re: Kudos to the judge
so clearly they believe the secrecy surrounding the stingray use/tech is of higher importance than actually catching and stopping criminals.

I suspect it is more a case of secrecy, or face actions and public outcry for breach of the 4th amendment.
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Anonymous Coward, 21 Nov 2014 @ 4:33am

Either they have a great parallel construction, or they wasted a bunch of taxpayer money.
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Anonymous Coward, 21 Nov 2014 @ 4:34am

This isn't working out well in Baltimore
The murder rate is up. Gang warfare is escalating. (And one gang apparently runs the city jail.) And so on.

So we actually need the machinery of justice to work effectively: identify the perpetrators. Accumulate evidence against them. Arrest them. Prove, in a court of law, that they are guilty. Do so in full compliance with the Constitution so that police or prosecutorial malfeasance doesn't result in a mistrial or a verdict thrown out on appeal.

In other words: do it by the book, the way it's supposed to be done. Dot i's. Cross t's. No shortcuts, no bullshit "ooooh national security" crap, no parallel construction, none of that.

But that's not what's happening. And by screwing it up, they're making Baltimore less safe for those of us who live here or want to take in a ballgame or watch a show or whatever. Yeah, there's a heavily-patrolled bubble around the Inner Harbor that's kept (mostly) safe for tourists, but outside there it's The Wire in a lot of places.

Turn off the Stingray and do police work. Hard, laborious, boring, interminable police work. That's how it's done.
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Anonymous Coward, 21 Nov 2014 @ 4:49am

Re: This isn't working out well in Baltimore
The murder rate is up. Gang warfare is escalating.
. Inb4 'police are gangs' comment. But seriously why has it dawned on so few groups that this 'tough on crime' attitude that we've had since Nixon is not only failing, it's actively making society worse! Until we start looking at the root causes of crime and move to a system that prioritizes rehabilitation this shit will continue. Of course there are plenty of monied interests who want to keep the status quo.
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Anonymous Coward, 21 Nov 2014 @ 4:49am

Re: This isn't working out well in Baltimore
"The murder rate is up."

What's up in Baltimore? Because overall stats say murder and other crime is trending down.

The gang running city jail - is that the private prison industry?
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Anonymous Coward, 21 Nov 2014 @ 4:53am

Ok, so the cops are running their own little cell phone devices. Why do they not have to comply with regulations governing such activity?
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Michael, 21 Nov 2014 @ 4:59am

Re:
because TERRORISM!!!!!
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Capt ICE Enforcer, 21 Nov 2014 @ 5:04am

Umm
I had a great comment for this post, but I forgot...
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That One Guy (profile), 21 Nov 2014 @ 5:05am

Re: Re: Kudos to the judge
That likely is the reason yes, the fear on their part that if the judge or public find out not that they have the technology and capabilities(something that everyone already knows), but just how much, and in particularly how widespread and indiscriminately they are deploying it, they might lose their latest shiny 'toy'.
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Anonymous Coward, 21 Nov 2014 @ 5:21am

Re: Re: This isn't working out well in Baltimore
In re the murder rate: http://www.baltimoresun.com/news/maryland/sun-investigates/bs-md-sun-investigates-stats-20141115-sto ry.html

Some of those are gang-related, and even more unfortunately, some of the victims have nothing to do with gangs:

http://articles.baltimoresun.com/2014-09-22/news/bs-md-ci-shooting-20140922_1_maryland-shock-t rauma-center-mcelderry-park-baltimore-sun
and
http://www.wbaltv.com/news/woman-child-shot-in-north-bal timore/27269464

A visualization of those (which can be adjusted to show all in 2014, all in the last 30 days, etc.) is here: http://data.baltimoresun.com/bing-maps/homicides/index.php?range=2014&district=all&zipcode=a ll&age=all&gender=all&race=all&cause=all&article=all&show_results=Show+resul ts

Sure enough, if you zoom in, you'll see that the areas around the Inner Harbor (which shows up labeled as such once you zoom in enough) such as Fells Point, the Camden Yards and M&T Bank Stadium, etc. make up a conspicuous island in the middle of the sea. Those areas are blanketed with police on foot, bike, Segway, etc. because that's where the moneymakers are. Or maybe this map sums it up better: http://judgmentalmaps.com/post/84140769295/baltimore

In re gangs running the jail:

http://www.slate.com/blogs/crime/2013/04/24/black_guerilla_family_how_a_gang_took_over_baltimor e_s_jails.html
and
http://www.fbi.gov/baltimore/press-releases/2013/thirteen-correctional-officers-amo ng-25-black-guerilla-family-gang-members-and-associates-indicted-on-federal-racketeering-charges
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Anonymous Coward, 21 Nov 2014 @ 5:25am

Re: Re: Re: Kudos to the judge
Just a thought, but a single Stingray is not sufficient by itself to locate a phone to any particular location. One therefore wonders what capabilities of the phone that the stingray is invoking, like GPS, getting it to triangulate itself from nearby towers, turning on its microphone etc. That pesky baseband processor in a phone runs proprietary and unknown code and is nor replaced by cyanogen mod etc.
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Anonymous Coward, 21 Nov 2014 @ 5:38am

well now, could it mean they were/are up tp no good, perhaps removing peoples privacy and freedom? what about removing the peoples rights under the constitution?
i cant believe that law enforcement would/did actually do anything they shouldn't!
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Anonymous Coward, 21 Nov 2014 @ 5:41am

Re:
IF someone in power is trying to hide their actions, chances are there's malfeasance involved.
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Anonymous Coward, 21 Nov 2014 @ 5:44am

Tim, don't want to sound like a dick, but I think every single one of your stories is about something Mike has already posted about a few days prior.

Is that on purpose? Otherwise I'd suggest you do a site search or Google search before you decide on a topic. Or you know...read TechDirt more, like the rest of us :)
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Rabbit80 (profile), 21 Nov 2014 @ 5:57am

Re: Re:
Don't forget the children! Why does nobody think of the children?
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Bergman (profile), 21 Nov 2014 @ 6:03am

Re: Kudos to the judge
Well, that or they know that intercepting electronic communications without a warrant is a felony, and if they admit to committing at least one in open court, they will have severe legal problems.
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nasch (profile), 21 Nov 2014 @ 6:09am

Re: Re: Kudos to the judge
Well, that or they know that intercepting electronic communications without a warrant is a felony

These things can't listen to phone calls. The only communications they intercept are between devices, not between people.
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Anonymous Coward, 21 Nov 2014 @ 6:20am

Re: Re: This isn't working out well in Baltimore
Wow, a knee jerk liberal. When was the last time one of those was seen in the wild?
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Anonymous Coward, 21 Nov 2014 @ 6:42am

Tim Cushing needs to get his facts straight. While it's true that the prosecution withdrew evidence, they didn't drop the charges. They're simply still investigating so that they can find new evidence to continue with the charges against the suspect.
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Anonymous Coward, 21 Nov 2014 @ 7:09am

Re: Re: Re: This isn't working out well in Baltimore
There's nothing "liberal" about it: it's reality. Decades of "tough on crime" have yielded: more crime.

It hasn't worked. It's not working. It's not going to work.

So it's time to dump it and try something else. ANYTHING else. This isn't a matter of ideology, it's a matter of practicality: continuing down a path that leads inexorably to excruciatingly obvious failure is just plain stupid.
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Anonymous Coward, 21 Nov 2014 @ 7:30am

Re: Re: Re: Kudos to the judge
"These things can't listen to phone calls. The only communications they intercept are between devices, not between people."

Perhaps what they're really afraid of people finding out is that that's not true.
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Gwiz (profile), 21 Nov 2014 @ 7:43am

Re:
Tim Cushing needs to get his facts straight. While it's true that the prosecution withdrew evidence, they didn't drop the charges.

Where does the article say anything about dropping the charges?
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Anonymous Coward, 21 Nov 2014 @ 7:43am

Re: Re: Re: Kudos to the judge
Stingray forces the use of GSM (2G), and its encryption is easily cracked, so it is best to assume that they can and do listen to calls.
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John Fenderson (profile), 21 Nov 2014 @ 7:56am

Re: Re: Re: Kudos to the judge
"These things can't listen to phone calls."

They most certainly can. That doesn't mean they did in this case, though.

"The only communications they intercept are between devices, not between people."

And how does that not count as "electronic communications"?
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Anonymous Anonymous Coward, 21 Nov 2014 @ 8:01am

Re:
So, in your view, they brought a case, when they didn't have a case, and got called out for having no case, and are now looking for a case, in case they might have a case?
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Anonymous Coward, 21 Nov 2014 @ 8:04am

Re:
Good grief. The prosecution withdrew the evidence during the trial after police detectives declined to answer questions on the witness stand. The prosecution is not "still investigating"; the trial is proceeding without the tainted evidence.

BTW: thank you, Judge Williams.
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Deputy Dickwad (profile), 21 Nov 2014 @ 8:22am

Re: Re: Re: Re: Kudos to the judge
This is why we NEED non disclosure agreements!

You are a shining example of an inorant citizen that need something taught to them.

So listenup fukwads..

If the phone or other cell service wireless device, car, ipad, laptop data card, what ever, is not moving you move your stingray, take multiple DF (Direction Finging) readings continuiously that feed in to, ironically, the stingray's iPad app, and blammo perp caught!, along with all of the sexts you can shake your stick at!

Being better than all you peeons IS AWESOME!
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Anonymous Coward, 21 Nov 2014 @ 8:36am

Re: Re: Re: This isn't working out well in Baltimore
Three words: Divide and Conquer.
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BentFranklin (profile), 21 Nov 2014 @ 8:55am

Re: Re: Re: This isn't working out well in Baltimore
Law and order is a conservative issue.
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Chris Brand, 21 Nov 2014 @ 9:44am

I don't understand the FBI or these police departments
If you're offered a tool to help you collect evidence, you know damn well that if the evidence is any good, you're going to want to present it in court, and that due process allows the defence to challenge how that evidence was collected, etc. So you know that if such a tool comes with a "non-disclosure agreement" that forbids you from describing it in court, the tool itself is actually useless to you. This should be a no-brainer decision for any PD in this situation - "That tool sounds great, I'd love to get one, but it's almost useless with that NDA, so I'll have to pass".

And of course the FBI is in exactly the same situation, and certainly should know better than to even offer this tool to PDs on this basis.

The conclusion is that the people we entrust to enforce the law have decided to ignore it when it's inconvenient to them. That's a very sad statement on the state of the US today.
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Anonymous Anonymous Coward, 21 Nov 2014 @ 9:51am

Re: I don't understand the FBI or these police departments
Worse is that the prosecutors were not bright enough to visualize and tack down their parallel construction well enough so that the 'stingray' never came up in court.

How are we supposed to know the law when the prosecutors don't know the law?
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tqk (profile), 21 Nov 2014 @ 10:31am

Re: Re: Re: Re: This isn't working out well in Baltimore
... continuing down a path that leads inexorably to excruciatingly obvious failure is just plain stupid.

Which leads right back to the real crime being done here: the war on drugs. That is the essential point that's always ignored here. It justifies the trillions of dollars spent on law enforcement, the militarization of police, the gutting of the Constitution, the lieing and deception by politicians, the competition between LEOs, the multiplicity of parallel LEOs, and the creation of a ubiquitous crime wave for "abusing" substances.

Stop punishing people for victimless crimes, and all that will become far more sensible, and usable against authentic criminals, those who actually victimize people.
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tqk (profile), 21 Nov 2014 @ 10:40am

Re: Re:
Which really means DRUGS! They say it's to protect you from terrorists, but it's really for finding and busting drug dealers. They handle a lot of cash, you know. Cash which the police are encouraged to take wherever it's found on the most specious reasoning.
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Anonymous Coward, 21 Nov 2014 @ 12:51pm

"You don't have a nondisclosure agreement with the court," Baltimore Circuit Judge Barry G. Williams replied.

wow - a ray of hope.
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That One Guy (profile), 21 Nov 2014 @ 2:35pm

Re: I don't understand the FBI or these police departments
A lot of the time they're banking on the judge buying the argument that, due to [REDACTED] they can't make the methods available, so they don't have to actually present how they got a particular piece of evidence, they can just present it unchallenged(and unchallengable).

That or evidence laundering, where they get all the evidence from a source that won't stand up in court, and then try and figure out ways to pretend they got it some other, legal, way.
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Anonymous Coward, 21 Nov 2014 @ 7:17pm

Re: Re:
the charges don't immediately need to go ... the prosecution just needs evidence to back up the charges. I expect the defence now asks the court what the charges are, The State cannot hold someone indefinitely without good Lawful reasons, O wait, this is the U.S. so, the fellow has an fatal accident in custody.
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Anonymous Coward, 21 Nov 2014 @ 8:46pm

Contempt
Williams threatened to hold Haley in contempt if he did not respond. Prosecutors decided to withdraw the evidence instead.

Instead? Obviously they can't use the evidence, but he should STILL be held in contempt.

The defense generally has the right to see evidence in a case whether or not the prosecution actually uses the evidence in court. (For example, the prosecution generally wouldn't use a fingerprint of an unknown person as evidence - but they still *must* turn that evidence over to the defense.)

If it's truly a "homeland security" issue, then maybe you shouldn't keep using it in robbery cases.

And somehow I think it's uncommon for a prosecutor to simply decide to not use a boatload of evidence because a witness refuses to testify. If this was a "normal" person, they'd be glad to use the prospect of contempt to pressure them into testifying. Prosecutors are willing to allow abuse victims to be jailed for not testifying about their abuse. They'll support a contempt sentence of 20 years even when the testimony is "not critical". They will jail reporters for not revealing sources. But in this case, it's a cop, someone the prosecutor views as being on "their team". So they let it drop.
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Anonymous Coward, 21 Nov 2014 @ 9:27pm

Re: Kudos to the judge
They are willing to let a potentially guilty individual walk rather than inform the court of just how they got the evidence against them.
You're missing the big picture: it's a numbers game. Sure they had to let one potential criminal go, but by not revealing the use of a Stingray they'll be able to catch ten times as many suspects that can't be successfully prosecuted.
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Sheogorath (profile), 21 Nov 2014 @ 10:48pm

Re: Re: Re: Re: Re: Kudos to the judge
You can't even spell as good as us 'peons', Dickwad, so forget being 'better'. Simples!
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Anonymous Coward, 22 Nov 2014 @ 6:53am

Re: Re: Re: Re: Re: Kudos to the judge
Yes, you are so much better than everyone else. Now if you don't mind, please take your flagellation elsewhere.
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Anonymous Coward, 22 Nov 2014 @ 6:58am

Your honor, we have secret evidence that is very compelling. We can not divulge said evidence but implore you to convict the perp solely upon our word cause we don't need no stinkin evidence.
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nasch (profile), 22 Nov 2014 @ 8:08am

Re: Re: Re: Re: Kudos to the judge
Stingray forces the use of GSM (2G), and its encryption is easily cracked, so it is best to assume that they can and do listen to calls.

That would mean they would have to actually connect the phone calls to a provider's backhaul. I doubt they're doing that from a plane.
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nasch (profile), 22 Nov 2014 @ 8:08am

Re: Re: Re: Re: Kudos to the judge
And how does that not count as "electronic communications"?

That depends on the definition of "communications". We know the exact definitions of words is very important in the law.
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Anonymous Coward, 22 Nov 2014 @ 12:18pm

Re: Re: Re: Re: Re: Kudos to the judge
If they do not have a link to a back haul, they will be interrupting phone calls that are in progress, and failing calls made by, or to the phones whose signals that they have captured, along with thew same for texts and Internet connectivity. That is without a connection to a back haul, use of stingray becomes very noticeable. A back haul link can be a radio link, fixed line link, and (speculation here) possibly a 3G or higher phone link.
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nasch (profile), 22 Nov 2014 @ 1:35pm

Re: Re: Re: Re: Re: Re: Kudos to the judge
If they do not have a link to a back haul, they will be interrupting phone calls that are in progress, and failing calls made by, or to the phones whose signals that they have captured, along with thew same for texts and Internet connectivity.

Don't stingrays often mess up cell communications in the area where they're being used?
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tqk (profile), 22 Nov 2014 @ 3:02pm

Re: Re: Re:
O wait, this is the U.S. so, the fellow has an fatal accident in custody.

Yup, and Jeffrey Daumer is stinking up the place with his protests. Poor guy. Who knew that correctional institution inmates were the last line of jurisprudence?
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tqk (profile), 22 Nov 2014 @ 4:22pm

Re: Contempt

Williams threatened to hold Haley in contempt if he did not respond. Prosecutors decided to withdraw the evidence instead.

Instead? Obviously they can't use the evidence, but he should STILL be held in contempt.

Fucking A! Damned right! Thank you. I was thinking exactly the same thought when I saw this. "You brought evidence into this court that was obviously excluded by Constitutional protections?!? Are you mental?!? Have you even read the Constitution? You swore an oath to protect it as a condition of gaining your job (employment)!"

Fire the @@@@@@@@@@@ (whatever that means in your jurisdiction), and prosecute him for negligence at the very least!
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tqk (profile), 22 Nov 2014 @ 4:27pm

Re: Re: Kudos to the judge
... they'll be able to catch ten times as many suspects that can't be successfully prosecuted.

That's. Very. Funny. In. A. Very. Twisted. Sort. Of. Way.

Please get off my planet. Your existence scares me.
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tqk (profile), 22 Nov 2014 @ 5:02pm

Re: Re: Re: Re: Re: Kudos to the judge
So listenup fukwads..

Hey, way to raise support for your cause. Not.
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That One Guy (profile), 23 Nov 2014 @ 4:11am

Re: Re: Re: Re: Re: Kudos to the judge
... and when you're talking about the government, the definition is usually classified as well, so good luck on that.
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Pragmatic, 26 Nov 2014 @ 5:35am

Re: Re: Re: Re: Re: This isn't working out well in Baltimore
Define "Victimless." If you're growing and taking your own drug of choice, it's victimless. If you're a cokehead you're funding the violence the people of South America are suffering. They're the victims.

That said, I favor an approach that treats drug use as a health issue and ending the War on Drugs.

People who cling to the idea of maintaining failed programs because principle are missing the point; the whole idea behind the principles is that putting them into practice is the solution. If it's not, those principles are wrong.

Rehabilitation V Revenge

Wrecking people's lives over minor crimes and misdemeanors isn't solving any problems. I honestly believe that only dangerous people should be locked up and every other criminal should make restitution to their victims as part of a community-based scheme.
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Pragmatic, 26 Nov 2014 @ 5:37am

Re: Re: Re: Re: This isn't working out well in Baltimore
It's an everybody issue [moderate conservative here]. Liberals just take a different approach. Sometimes they're right, believe it or not.
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