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By Tom Cushing

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.