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Friday Roundup

Good dog.  A few years back, I did a post on the reliability of drug dog sniffs.  The gist was that dogs often alert because they receive subconscious cues from their handlers.  One study I mentioned produced 225 alerts, all of them false.  The handlers had been told that the target scents would be marked by red paper, and the testers had also placed hidden sausages as decoy scents for the dogs.  The interesting thing about the test is that the false alerts were found twice as often at the sites designed to fool the handlers as the ones containing the sausages.

That might be the explanation for Lex, the drug-sniffing dog who's the subject of the 7th Circuit's recent decision in U.S. v. BentleyBentley had been the victim of the Bullshit Traffic Stop of the Week™ -- crossing into another lane on the highway without signaling - and the discovery of 15 kilograms of Columbia's primary export in a trap compartment in the car sent Bentley to prison for 20 years.  He appealed, claiming that the search of the car resulted from an alert by Lex, and that Lex wasn't reliable.

The panel admits that "Bentley put on a good case."  To say the least:  the evidence showed that Lex alerted a whopping 93% of the time, but in controlled conditions his accuracy rate was only 59.5%, "not much better than a coin flip."  In fact, Lex had been sent back to doggie school for two weeks in April of 2012 after he failed two simulated searches.

Most distressing to the panel was that Lex's handler rewarded Lex with a treat every time the dog alerted in the field. 

This giftee policy seems like a terrible way to promote accurate detection on the part of a service animal, lending credence to Bentley's argument that Lex's alert is more of a pretext for a search than an objective basis for probable cause.

The court nonetheless upholds the search, finding that a 59.5% success rate is sufficient to leap the low bar of probable cause, citing several cases where the success rate was less than that, including one where the dog's accuracy rate was only 43%.  The court does add a caution:

This should not become a race to the bottom, however. We hope and trust that the criminal justice establishment will work to improve the quality of training and the reliability of the animals they use, and we caution that a failure to do so can lead to suppression of evidence.

Jury polling.  The other day I mentioned a five-year sentence for child pornography handed down here by Federal Judge James Gwin.  Ryan Collins had been convicted of downloading over 15,000 files of child pornography, and the government asked for the statutory maximum sentence of 20 years.  Gwin imposed the statutory minimum, after surveying the jury and finding that the average sentence they felt was appropriate was 14 months.

I ran across this article, which indicates that Gwin's approach is rare.  As one district judge, Mark Bennett of Iowa, put it, "Only about 20% of us even talk to the jury after trial." 

But Bennett is one of the 20% who do talk to the jury, and he's routinely done the same thing as Gwin:  polling the jury.  With the same result:

Every time I ever went back in the jury room and asked the jurors to write down what they thought would be an appropriate sentence, every time - even here, in one of the most conservative parts of Iowa, where we haven't had a 'not guilty' verdict in seven or eight years - they would recommend a sentence way below the guidelines sentence."

That goes to show that the notion that the sentencing guidelines are in line with societal mores about what constitutes reasonable punishment - that's baloney.

No-knock, no-knock, who's there?  You've probably heard more about Honey Boo Boo than you ever wanted to - which, if you're like me, is anything - but you may not have heard about Baby Bou Bou.  Back in May of 2014, Georgia deputy Nikki Autry obtained a warrant to do a no-knock search of a house, her affidavit claiming that an informant had purchased methamphetamine at the residence, and the police had observed heavy foot traffic in and out of the home.  When the police executing the warrant found the front door blocked, they tossed in a flash-bang grenade.  It landed in the crib of the 19-month-old child.  The toddler spent weeks in a burn unit, most of the time in a medically induced coma.

That garnered a lot of attention, but the County Sheriff quickly exonerated his deputies, telling the press that when the confidential informant went to the house, there was a guard standing at the front door and the back door.

Turn out none of that was true.  There was no informant, or else Autry lied about what he said.  There was no surveillance showing heavy foot traffic.  There were no guards.  There was no drug buy.  Last week, the Feds charged Autry with four counts of civil rights violations for making the false affidavit.

Perhaps the scariest thing about this case - although there are a number of nominees for that award - is that the state district attorney, a grand jury, and the Georgia Bureau of Investigation all looked into the matter, and cleared the officers.

Oh, and the search?  There were no drugs found.  The person the police were actually looking for had been kicked out of the house a week earlier, and was arrested without incident at a local grocery store a few days later.

Non-legal observation of the day.  You know it's time to start dieting when you realize you're wearing form-fitting shirts and they're not supposed to be.

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