Ponderings on Possession, Part Two.



I’ve struggled with Windypundit’s possession post.  If you’re not keeping pace, last week he brought up an interesting scenario (or two) resulting in people innocently going about their business but somehow obtaining items it’s illegal to possess. I took a stab at giving what I thought would be decent advice based on the scenarios presented (and also tried to explain the reasoning).

It wasn’t particularly easy, but many things in the world of criminal defense aren’t.

The shame of Draughn’s legal problems isn’t really the absurdity of possession crimes, though. While the hypotheticals do a great job highlighting that absurdity, the root of their difficulty is in a  couple of much more pervasive aspects of the system.

My issues in figuring out exactly how to answer the problems had as much to do with information control and truth as anything.  Those are two factors that affect every type of case.

Information is everything.

Information control is 90% of the game in criminal law. 90% of that initial information control is, of course, in the hands of the police (which, if you’re scoring at home means that police reports account for about 81% of what’s important in cases and I’d say that isn’t too far off).  When I was mentally running through the porn/drugs/guns-in-the-duffel-bag scenario the thing that kept running through my mind was that “the police will never believe the truth here.”

Cops are running down the street in pursuit of somebody. They come upon a guy with a big bag of contraband who may (or may not) drop it on sight.  They’re going to listen to his story about how he was minding his own business until he accepted the bag from a stranger?  Not going to happen.

Are they going to listen to man when he says he was just coming from Starbucks or Gino’s East and they should go there to find witnesses that saw him but didn’t see a huge bag anywhere near him?  Hell no.

The bar to charge a crime is low. It’s “probable cause.” A man standing in the street with all that illegal stuff claiming it belongs to people he doesn’t know, people he’s never seen before and people he’ll never see again? That’s probable cause all day long. The police don’t have to do any more investigation, so why would they?

Police reports. They aren’t what you think.

The information control starts with determining what is and is not even worth looking at.  Witnesses and evidence not “worth the time” to the police is easily lost to eternity.  What is deemed worthy by them is forever  memorialized by way of a police report that not only documents what is important to them but why it’s important to them.

I’m not talking about lying here, either. I’m talking about the very basic idea that police reports are documents explaining why an officer did what he did not an objective portrayal of fact.

“While in pursuit, I turned the corner to see a man and a bag…” is one way of describing things. “While investigating an offense concerning a man with a bag, I came around a corner to see a white male clutching a duffel bag…” might be another. Another yet would be “While in pursuit I turned the corner and observed a suspicious looking man matching the description of the suspect holding what appeared to be a large duffel bag consistent with the suspect’s bag…” is yet another.

Don’t think that how things are depicted is a big deal? Why did it take so long to investigate the shooting of Laquan McDonald?  Do you think the first police reports made it look like a murder or justified use of force?

My advice in the last post was based, nearly entirely, on how I thought things would come across to the police. More importantly, though, it was also based on how I thought the police would depict it in the reports. I would not trust the reports to come off overly objective.

Hence, doing whatever you can to reduce police attention and then get out of there might be the smartest thing to do, even if not the best legal or ethical path.

You Can’t Handle The Truth.

The truth doesn’t matter in criminal courts. Not like it should, anyway. What matters in criminal court is if the prosecutor can eliminate “reasonable” doubt. Not all doubt.

Guy comes out of nowhere, hands you a bag full of drugs and guns, runs away and now the cops are on you. You tell them exactly what happened. You’re telling the truth.

In his closing the prosecutor is going to mock your story. He’s going to say that you just happened to be in the wrong place at the wrong time.  You just happened to be standing in the middle of the street when, seemingly from the sky, a duffel bag of guns, child porn, and brick of He-she landed in your hand right as the cops were looking for it. You’re either guilty, the prosecutor will argue, or you’re “the unluckiest man in the world.”

Your story, while it may be true, certainly doesn’t sound reasonable.

The prosecutor is right, too. You aren’t guilty. You actually are the unluckiest man in the world. And when the jury convicts you there’s not an appellate court in the world that will rule that no rational juror could have disagreed with your jury (that’s what it will take to get your conviction reversed).  They’ve got a good circumstantial case against you, and no amount of actual truth will matter.

Which is why both scenarios in Draughn’s initial post (just as many in real life do) create such sticky situations.

In that light, it’s a scary, scary system. That much is the truth. Of course, the truth doesn’t matter.

3 thoughts on “Ponderings on Possession, Part Two.”

  1. I meant to comment on the last post. I have thought about that exact scenario before and there is no good answer. None of the options allows one to both avoid unethical or criminal behavior while at the same time avoiding prosecution. It is an either or proposition. And that is a very scary concept.

  2. It’s small consolation that there are fair minded folks who entertain alternate explanations for possession of illegal articles besides “reasonable” ones. For those of us who find themselves literally holding “the bag” through no knowledge nor intent of our own the introduction to the paradigm of all things reasonable is the beginning of a horrible nightmare.


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