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By Tom Cushing

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About this blog: The Raucous Caucus shares the southpaw perspectives of this Boomer on the state of the nation, the world, and, sometimes, other stuff. I enjoy crafting it to keep current, and occasionally to rant on some issue I care about deeply...  (More)

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Dueling Nekkids

Uploaded: Nov 1, 2014
As a man of a certain age, I'm fascinated with the implications of technologies that just weren't readily available to us Boomers in our stupider, better-looking years. The nekkid selfie is a good case in point. Growing up in a mostly Kodachrome era, our options to create such promotional masterworks were limited ? if not by straight moral laces then at least by concern for the prying eyes of pimply clerks at the drug store photo counter. Polaroids were possible, but not particularly practical.

Digital technology and the web have changed all that, of course. Not only have they brought the sum-total of all human experience to everyone's fingertips, they have also made cat videos and naked selfies available to the masses, at last. According to the comments to a recent D/SR Express article, the web is even awash in free porn (who knew?).

Any regular readers of these columns will also know that nekkid abuses of power have also been on my mind of late -- whether in riotous response to peaceful protests or in succumbing to the temptation to take and keep stuff that belongs to the citizenry. When these two nekkids collide, well, blogging is very likely to ensue.

As recently reported in these pages, one young Ms. Jane Doe was apprehended on the freeway in the wee hours, presumably because her driving technique needed work. She is alleged to have achieved better than 3.5 times the legal blood-alcohol limit on the field breathalyzer test, and was poured into a squad car for a slosh to the hoosegow.

The arresting CHP officer relieved her of her phone and its password protection at the station. She later discovered that her stash of nekkid selfies had been rifled by the lawman. Worse, he had texted them to his own home number. Worst of all, this bit of serendipity did not incline him to drop the DUI charges against her.

In the days that followed, we also learnt that he is not alone in collecting these trophies ? at least two other CHP deputies at the Dublin station are also engaged in some manner of Jane Doe derby ? a competition to see who can confiscate the most prurient nekkid selfies, from their roster of arrestees. Note that this scandal is not to be confused with those other, so-called 'dirty DUI' abuses conducted by the County police department a few years back. It's tough to keep up, but maybe that's how all that porn gets on the web? Anyway, disciplinary proceedings may be under review.

As reported in the same article, also underway is a review of Ms. Doe's and other cases handled by those competitors in the nekkid selfie sweepstakes. Should prosecutions be reopened or dismissed based on police misconduct? The easy answer would be to quickly discard these matters, as the ossifers' actions have called their credibility into serious question. That said, I think this calls for some serious thinking.

In general, criminal cases are subject to the so-called Exclusionary Rule that forbids the use of illegally obtained evidence. Called the 'fruit of the poisonous tree,' such evidence is kept out to discourage law enforcement, for example, from conducting searches that violate the 4th Amendment. So, if the officers were somehow motivated to stop car x because of the pulchritude within and those inevitable(?) selfies, and Not because they had reason to believe a violation was afoot, then any resulting evidence ought to be disallowed and the case is probably not worth pursuing.

However, that does not seem to be what happened here. If the stop was legally conducted ? say, based on observed weaving or speeding, and only later were the inevitable selfies discovered and misused, then we certainly have police misconduct ? but it is independent of the charges supported by other, legally obtained evidence. The only relevance there is whether the police misconduct is so damaging to an officer's credibility that nothing he says should be trusted by a jury.

As a practical matter, there's also the possibility that jurors would be so passionately incensed against the officer and his shenanigans that they would ignore the evidence and simply acquit. That's not supposed to happen, of course, but it does ? it even has a name: jury nullification. Perhaps in close cases, like a breathalyzer reading that's just one gulp over the line, the possibility of nullification would be particularly strong. The public defender certainly did his best to throw mud on the officers generally in the most recent article cited above. The prosecution must also contend with bringing a case that will be embarrassing to the entire law enforcement community ? imagine the gleeful defense cross-examination of those errant public servants.

But then, there's the important matter of public safety. If the breathalyzer report is credible, Ms. Doe was prodigiously drunk and consciously behind the wheel that evening. She was sharing the road with others, and her conduct put them at-risk of their lives. If this matter is dismissed, who will answer for the next time?

Frankly, these cops face water much hotter than the cross-exams in these cases ? they are subject to job loss, and both civil and criminal charges based on theft and invasion of privacy. That said, however, I'd like to see them testify in these cases because of the seriousness of the underlying DUI charges, and precisely because it's personally and professionally embarrassing, and a public spectacle. These really are serious abuse allegations, and the object lesson of a good coal-raking may help deter future misconduct.

By contrast, sweeping it under the courtroom rug to avoid possible nullification and further airing of this soiled under-armor would not serve the public good. That's especially true if it releases Ms. Doe without the help or punishment necessary to avoid future high-speed tragedies, not only to herselfie, but to others, as well.
What is it worth to you?


Posted by To: tom, a resident of Another Pleasanton neighborhood,
on Nov 3, 2014 at 8:09 pm

Tom, there is nothing more disturbing than a crooked cop, and we've seen plenty of that here lately. For that reason, and also acknowledging cops have substantial protections, I'll disagree. This Cop has probably cost taxpayers a lot of money because of his disturbing actions. Hopefully the young girl got a wake-up call.

On a seperate but maybe related note, my initial thought was to vote in support of Prop 47, until I read your comments that the savings do NOT go back to the General Fund. According to your blog: 25% to education, 10% percent to the victim compensation and 65% to the Board of State and Community Correction.

This prop sounds like a solution to a problem that has ended up as money grab, doesn't it? 25% of savings to education? That could mean just about anything including raises, pension payments, or both. 10 percent to victims compensation funding? I'm not even sure what that means?

The big number, 65% to state and community corrections savings, is so open ended that it probably represents a blank check that can also be used to fund salary increases and/or pension costs, while more criminals are let loose on our streets. What I'm not seeing is any real benefit to the community.

I think reducing incarceration levels for non-violent criminals is a just response to the overzealous three-strikes law that has overwhelmed the prison system, but the funding needs to go back into the General Fund. Putting the money in the hands of the ineffectual prison system is just plain moronic. If you look at prison costs by state we are paying too much.

A better way to save money is to reduce the exorbitant costs taxpayers are charged for current prison services. Have you seen the total compensation numbers for prison employees (guards, nurses, doctors, dentists, and psychiatrists)? Only in California! Why is it that cost containment is always the last option, or never even considered. Why is it always about MORE & MORE TAXES or EVER INCREASING BOND DEBT?

Vote NO! This prop should come back in two years with the savings benefiting the taxpayers.

Posted by Tom Cushing, a resident of Alamo,
on Nov 4, 2014 at 6:42 am

@ To: (gesundheit):

Apparently this lighter-weight blog has leapfrogged the much more significant, just-prior edition about civil forfeitures. Oh, well. I should have found a way to put 'nekkid' in that title, instead.

In response to your concern about the state 'money grab' in Prop 47, I think a few things are worth noting:

1 -- Savings are estimated to be $150-200M/year at each of the state and local levels. The earmarked money is only from the state's share. Local governments save a similar amount.

2 -- while personally I would love to have $150M, in context, it amounts to about 0.1 - 0.2% of the state budget.

3 -- the earmarking is tied to specific anti-crime programs -- thus not a 'blank check':

"These dollars would be allocated exclusively for three

? 65 percent for mental health treatment, drug treatment, and
diversion programs in order to reduce crime.11

? 25 percent for programs designed to improve outcomes
for K-12 public school students by reducing truancy and
supporting students who are at risk of dropping out or are
victims of crime.

? 10 percent for trauma recovery centers to provide services to
victims of crime." Web Link

As I've said, I think earmarking is silly, but I don't see anything sinister in it. And when you consider the salutary aspects of this Proposition, I think you may be throwing the baby out with the bathwater.

Like I wrote -- not perfect, but good enough for my vote.

Posted by American, a resident of Danville,
on Nov 5, 2014 at 6:46 pm

Sorry off topic, but Tom got smile how Obama prior election said gains by Democrats were "referendum on Americans support of his policies", but today after huge Democrat losses said "was due to actual candidates viability and nothing do with him"... Typical Obama... Let me guess, next he abandons the "White Sox" as his team and refers to Giants as "my team".

Posted by Tom Cushing, a resident of Alamo,
on Nov 6, 2014 at 7:18 am

I guess we each hear what we want to hear.

My take is that this year's elections were won in 2010. This was not the citizens, united -- it was Citizens United. As usual, Daily Show had it right: money won the day. Ideas? Not so much.

Posted by Herman Glates, a resident of Danville,
on Nov 6, 2014 at 9:19 am

By Tom?s logic, the relevant year isn?t 2010, it?s 1791. That?s when the First Amendment was enacted. You know, freedom of speech and all that.

Democrats, the media, and Hollywood had a great monopoly promoting liberal ideology and squashing opposing points of view.

Then a few years ago some guys made a movie that was critical of Hillary Clinton. Democrats tried to ban it from being shown. They sued and the Supreme Court ruled in Citizens United that Congress can?t ban political speech.

Liberals claim Citizens United gives Republicans an unfair spending advantage, allowing Republicans to overwhelm voters. But spending on this election was nearly even. Democrats spent $1.76 billion. Republicans spent $1.92 billion or 4% more than Democrats. When you add in all the free promotion the Liberal media provides, Democrats still have a huge advantage.

Liberals claim the election wasn?t about their failed policies. What a joke.

As usual, Tom and other Liberals who get their ?news? from the Daily Show are getting duped.

Posted by Tom Cushing, a resident of Alamo,
on Nov 6, 2014 at 11:30 am

I figured that comment would bring ol' Herm out of hibernation. For the record, it's ALL unlimited campaign money I object to, not just GOP money. Its sheer volume drowns out other ideas. Both sides shouting only makes the din worse.

And as a fellow member of the Bar, Glates surely remembers his Constitutional Law class better than to claim a 1791 date. Nobody even thought to distort the First Amendment so far as to consider campaign money to be 'speech' until the Buckley case, in 1976. He knows this, but how much more fun is it to troll around and deceive others who may not have had to sit through Con Law.

Oh, and I do not get my news from the Dailies or Colbert. It's comedic satire -- really good satire. John Stewart is one of the most incisive commentators around -- when he gets serious, it's brutal. BW, 'liberal' is a term of honor -- not as you studiously try to misrep it, but generally.

Posted by American, a resident of Danville,
on Nov 6, 2014 at 12:10 pm

Tom: Do you actually think so little of the intelligence of your fellow Americans that we are swayed by mostly ridiculous t.v. and radio ads in how we vote? You actually think money spent on political ads is the reason for the huge gains by Republicans in the senate, house, and governorships? No, I think you are right, that people "see what they want to see", and you refuse to accept the fact that liberal California is completely out of step with the rest of our great country when it comes to our political views and opinions. It would be refreshing, but of course, unlikely, for you and the liberal media to see the truth, "the times they are a changing", and your tax and spend friends do not exist outside of CA. This election was not about money, it was about people having enough of Obamacare, enough of illegal aliens getting preferential treatment with lower tuition in state colleges over US Citizens from other states, and enough of Democrats battle hymn of tax, tax, and tax those who work for a living to pay for those who choose not to work.

The Yankees throwing money at players does not win a World Series, anymore than a US Supreme Court case that you disagree with on campaign spending does with winning a national election. Ideas, policies, and integrity and morals are still important in America, and America has spoken everywhere except CA.

Posted by Herman Glates, a resident of Danville,
on Nov 6, 2014 at 12:29 pm

Citizens United had nothing to do with campaign money. Stop misleading your loyal readers.

Citizens United says if you and your friends want to form a group and make a political movie, you can do it. Congress can?t stop you from making a political TV show, Internet meme, Facebook post or any other political speech. Imagine the chaos if they tried! The Daily Show would have to go off the air during election season. Then how would Tom get his news?

Everyone hates money in politics. But that?s not why the Democrats lost this time.

Posted by Formerly Dan from BC, a resident of Bridle Creek,
on Nov 6, 2014 at 12:43 pm

Formerly Dan from BC is a registered user.


"...and America has spoken everywhere except CA."

Not necessarily the case given republicans gained enough seats in the senate to overcome two-thirds super-majority and may have done the same in the legislature.

The wheels may be turning slowly, but they are turning nonetheless.

Posted by Tom Cushing, a resident of Alamo,
on Nov 6, 2014 at 4:03 pm

Dammit -- I had crafted the ultimate coup de grace comment, obliterating all arguments that opposed it. But the machine ate it in the posting process.

Oh, well -- you'll just have to trust me. I'm busy. Bad week for my side.

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