A Disquisition Upon a Fallacy

Ophadell Williams: Not Guilty.

That's what the jury said on Friday. If the name isn't familiar, Winnie Hu and Nate Schweber lead with the plot in the Times.

A bus driver accused of being so tired that he caused one of the deadliest crashes in New York City’s history was found not guilty of manslaughter and negligent homicide on Friday, underscoring the difficulty of prosecuting drowsy driving despite successful efforts to use the courts to discourage other dangerous habits while at the wheel. 

I don't know squat about New York law, and I paid little attention to the case.  Not my state, not my stuff, didn't know any of the principals (or even the bit players).  I don't really know what the evidence was.  I've got enough shit to deal with in Ohio.

But I heard this news report where the anchor asked the reporter about the "broader implications" of the verdict.   Broader implications?  There are none.  The prosecutors (I think they call them DA's in NY) just didn't prove it.  The reporter of course pontificated about how these things are hard but there's some case in Virginia and the dangers of and blah, blah, blah.

To which I thought.

Ho hum.

And that was kind of the end.  Not my state, not my stuff, didn't know any of the principals (or even the bit players).  I've got enough shit to deal with in Ohio.

This morning, Paul Kennedy (who's been doing really good stuff over on his blawg and you should be reading it if you aren't) took off on Doug Berman over the death of Dallas Cowboy linebacker Jerry Brown as a passenger in his teammate Josh Brent's car. It seems that Brent, who was perhaps driving under the influence while he was allegedly speeding, was charged with a DUI in 2009 in Champaign County, Illinois and entered into a plea bargain.

Berman, Kennedy said, is "on the warpath."  That might be a bit hyperbolic.  Judge for yourself.  Here's what Doug wrote.

I cannot help but wonder if Jerry Brown would still be alive today if Josh Brent had gotten sentenced somewhat more severely for his first DUI. And, looking forward, I think NFL Commissioner Roger Goodell would do more good for both his sport and society if, rather than worry too much about kickoffs, he were now to decree that any NFL player convicted of any DUI charge will be suspended for at least two years (and perhaps even for life).

I suppose it's true that if Brent had been banned from professional football after 2009, the odds go way down (way down) that Brown would have been in his car the other day and, therefore, killed in that accident.  (Frankly, the odds that Brent would have been in that location at that time go down, too, which means the accident probably wouldn't have happened.)  And if Brent was doing 10-15 in the slammer in Illinois, no accident, either.

Kennedy's point is partly about a rush to judgment.  (Brent is merely alleged to have been over the limit - whether he actually was will be revealed by the blood tests, assuming they're done right.)  The rest of Kennedy's point is that ramping up the penalties for a first time DUI will either result in more violations of constitutional rights or, oddly, more not guilty verdicts in DUI cases (which means fewer convictions, though not necessarily fewer drivers over the limit).

But there's another point, and it takes me back to bus driver Ophadell Williams and the not guilty verdict.

I don't know what the jurors thought the DA didn't prove.  (Neither do the Times reporters who say that the jurors wouldn't speak with the press except to say that the deliberations were tough.)  That driving while exhausted isn't that serious a thing? That Williams wasn't actually all that tired?

Or just maybe some third thing.

Here's another possibility.  Image that the jurors believed that  Williams was absolutely exhausted, and that it was just awful for him to be driving that way.  Worse even than if he were blind drunk.  But maybe, just maybe, they thought to themselves

Sure, but they didn't prove that caused the accident.

I spend a fair amount of time in my car.  I see lots and lots of terrible driving.  I'm quite certain that some of the awful drivers I see are stinking drunk.  I'm sure others are half asleep.  Mostly, they get home safely.

They shouldn't be driving, of course.  And prosecuted for driving drunk or for driving while sleeping (it that's a crime) they'd be properly and fairly convicted (assuming factual guilt for the moment).  But we take another step, and its seriously wrong.

We make it a crime for the accident to happen at a time when the driver was drunk. Ignoring the question of whether the one had anything to do with the other.  Because sometimes it doesn't.

I don't know what New York law required the state to prove.  I don't know what the jury struggled with.  I don't know how they decided.  And I don't know why Josh Brent was speeding, if he was.  But I know that just because two thing happen in sequence doesn't mean the first caused the second.

The logical fallacy is called post hoc ergo propter hoc (after this, therefore because of this).  Most drunk drivers get home alive.  And sometimes, when they don't, it has nothing to do with being drunk.

Which leads to a couple of other possibilities in Josh Brent's case.  Even if he was drunk, and even if he was speeding, those things may not have had anything to do with each other.  He may speed all the time.  He may just be a lousy driver who can never control his car well.  Or maybe he just had an accident.  One of those things.  Awful though it turned out to be.  But something that might have happened regardless.

The law may not allow that as a possibility, the law may not care.  The law may not give a shit about causation when someone dies.  But as Dicken said in Oliver Twist  (in a different context)

If the law supposes that," said Mr. Bumble, squeezing his hat emphatically in both hands, "the law is a ass- a idiot."

Goin' for a ride in the car, car

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

And every spring the Easter Bunny comes and leaves colored eggs and baskets of candy for children small and large. Of course, the Easter Bunny is real and the Fourth Amendment is . . . . Oh, wait, you say it's the Fourth Amendment that's real. Perhaps you need to speak with the Chief Justice of United States.

Here's the basic Fourth Amendment rule, pared down to simple English and elaborated generically:

Government agents can't search you or your stuff or seize you unless they get a warrant specifically authorizing the intrusion. The warrant has to be justified by probable cause. There are certain exceptions that the courts have made up over the years, but they are few, specific, and must be understood narrowly. If government agents violate this rule, their actions are unconstitutional, and any evidence they turn up against you will be suppressed.

We now take a break for the return engagement (two appearances so far in this post, and I'm just getting rolling) of our friend the Easter Bunny.

It's no secret to anyone who plays in the sandbox of criminal law (police, prosecutors, defense counsel, judges and justices) that the reach of the Fourth Amendment has been scaled back over the years. Nor is it a secret that "persons, papers, and effects" have less protection when they're in a motor vehicle than when in a building. It's that combination which gave us what's known as the "automobile exception."

To explain the automobile exception, I need to back up to that generic statement. Among the exceptions to the warrant requirement is a situation where police have probable cause to believe that a search will turn up evidence of crime and there are exigent circumstances which make it impossible to get a warrant without risk of losing the evidence. Back in 1925, in Carroll v. United States, the Supreme Court said, in effect, that automobiles are, themselves, exigencies. If there's probable cause to search a car, the cops don't need to bother with a warrant. In 1979, in Delaware v. Prouse, the Court made clear that police can stop a car without probable cause (not a search, a stop). Reasonable suspicion, a lesser standard, is enough.

Now, what generates reasonable suspicion? Police see something that indicates a problem? Reliable citizen calls in, identifies herself, provides specific information that police corroborate that indicates a problem? Sure, both of those things.

But what about some anonymous person says, "I just saw a Caddy with a drunk driver?"

That's what happened in Virginia. Police in Richmond received an anonymous tip that Joseph Harris was driving drunk. They found him and followed him but he didn't do anything wrong. They pulled him over anyway. Turns out he was drunk. He appealed, the Virginia Supreme Court said that an anonymous tip absent some confirming evidence, isn't even reasonable suspicion of a DUI. Well, duh. If that's enough, anyone can get anybody stopped anytime. Just call the cops and tell them that, say, Paris Hilton is driving drunk. (OK, maybe that's a bad example, since she so often is.)

Yesterday, the Supreme Court refused to hear Virginia's appeal. Typically, that's not news. The Court refused to hear bunches of cases yesterday. But Virginia v. Harris was unusual. Chief Justice Roberts decided to explain why he thought the Court should have heard the case. Here, in paraphrase, is what he said.

Drunk drivers are really dangerous. So they probably shouldn't get any protection from the Fourth Amendment.

See, if you believe the Constitution's protections only apply to innocent people who are never accused of wrongdoing, then you probably think Roberts got it right. But if you believe that, then you believe nothing. The Constitution, for you, applies only when it's irrelevant. In fact, we protect the bad guys as a means of protecting the good guys. Until it's all worked out, after all, we don't know which is which.

When Gideon wrote about this yesterday, I thought of how much fun we could have had if Roberts carried the day. Imagine calling the cops every day to say that the Chief Justice of the United States was driving drunk. They could pull him over on a daily basis. Perhaps, in time, he'd get the idea.

It would almost have been worth it. Almost.

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By the way, Scalia joined in Roberts' comments. Nobody else did.

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Other relevant blawgs on this:
Preaching to the Choir, The Defense Rests, The Volokh Conspiracy.