Perhaps you've heard of Stacy Snyder.  She was a 25 year old student pursuing a degree in education at Millersville University in Millersville Pennsylvania.  Ms. Snyder has a MySpace page, and on it she had posted a picture of herself attending a Halloween costume party.  She was wearing a T-shirt and a tiny pirate hat on her head, and drinking from a plastic cup.  The caption under the picture said "Drunken Pirate."  As inappropriate pictures go, this one was pretty tame.  I've seen it myself, and if the caption hadn't said "Drunken" you wouldn't have any idea at all what she was drinking, since she didn't look drunk.

Nonetheless she was reprimanded by the Dean of Education at Millersville University based on this picture, and was informed that it was unprofessional and encouraged underage drinking (note that she was not under age at the time the picture was taken.)  She apologized.  But apparently that wasn't good enough.  On the evening before her graduation, she was informed that she would not be receiving a degree in education, and instead received a degree in English.

Just so we're clear, this bright young woman had a perfectly innocent picture of herself drinking from a cup on her MySpace page, with the caption "Drunken Pirate" underneath it, and because of this, her years and expense in college are for nothing and she cannot teach, which is all she ever wanted to do.  Sounds a little harsh to me.  It's not like she was falling down drunk and flashing herself at the camera while a guy poured beer on her.

So now Ms. Snyder is suing the university for $75,000 and her degree in education.  I find myself thinking she deserves both.  Now. 

I served on a jury for a drunk driving case many years ago, what they now call an OUI case (Operating Under the Influence).  Out of the juror pool we lost one potential juror early.  Apparently this juror had been arrested for prostitution at one point in the past and had been acquitted, but both the prosecutor and one of the offficers had been involved in her case, which she felt would taint her opinion.  So the judge dismissed her.  One of the other questions that the pool was asked before the trial began was "If you feel you would be less incined, or more inclined to believe the word of a police officer, simply because he or she is a police officer, you should speak up now."  Point being that would prevent you from dispassionately deliberating on the merits of the evidence alone, instead of who was giving the evidence.

During the case, I became convinced by the defense attorney that the defendant was not actually drunk when she was arrested for DUI.  The officer that had arrested her seemed very young and had only been on the force for a short time, and I became convinced that he was inexperienced.  The other officer, the one who did bookings, seemed a little less than honest.  I found it questionable that he could remember the exact demeanor of a person he had booked months earlier, when his job is booking person after person, day in and day out.  When asked if he felt the defendant was drunk at the time she was booked, he said "yes".  When asked why he said "she had bloodshot eyes, and seemed unsteady on her feet."  When asked if he had testified in a different drunk driving case earlier that same day, he responded "yes".  When asked if his testimony in that case had been, verbatim, "he had bloodshot eyes, and seemed unsteady on his feet" he also responded "yes".  This gave me, and others on the jury, the impression that this guy said the same thing on every case, and basically he was just there to back up the arresting officer.

Finally when it came to the field sobriety test evidence, the defendant had passed most of the tests, and had failed on "stand on one foot and count aloud until I tell you to stop".  According to the testimony, the defendant at first didn't count aloud, was then asked to, and counted "5 6 7 8 9 10" and put her foot down.  The arresting officer asked "Why did you stop?"  She said "I'm done."  And that was the end of the sobriety test evidence.  No breathalyzer evidence was admitted.  The defense attorney even offered in his closing argument that it is hard for a sober person to stand on one foot and count for a long period of time.  I wasn't sure I bought that argument.

Once we got into the deliberation room it took about 30 minutes to reach a consensus.  Some of us had been convinced that the arresting officer was inexperienced, and although the defendant had drunk a few beers during the day, she probably wasn't over the limit for blood alcohol at the time she was arrested.  The testimony of the officer that she was driving slowly and hunched forward over the wheel (what he described as "windshield face") didn't seem all that compelling... there was no mention of erratic steering, falling down, etc.  And where was the breathalyzer evidence?  If she had failed the breath test, it would surely have been brought up in court.

There were a few jurors who weren't really sure either way.  I was in the not-drunk camp, and it wasn't long before I was the spokesman for the not-drunk camp.  Before long the drunk camp contained only one woman who (late in the deliberations) said "Listen, my dad is a retired police officer, and those guys are fully trained to recognize a drunk person."  I asked her if that shouldn't have been grounds to excuse herself from the jury, given that anyone less inclined or more inclined to believe a police officer's testimony was supposed to identify themselves before the trial.  She said "I'm not more inclined to trust a police officer," then after a pause added, "well I guess I am."

I pressed on.  "Is it completely inconceivable that a young inexperienced officer might not have a firm grasp on his DUI training, given all the other stuff he has to learn?  There's good and bad in every bunch, is it impossible that this guy just made a mistake?  Smelled a little beer, saw red eyes and decided the defendant was drunk?  Heck I could drink a beer and pet my cat and I would meet both of those requirements and yet be completely fit to drive."

Eventually, she gave up.  "Well I think she's guilty, but I'll say not guilty because you've all made up your minds."  And so the defendant was able to walk out of the courtroom, avoiding a conviction for driving while intoxicated.

Outside the courtroom, the defense attorney asked to talk to me once the trial was over.  He wanted to know the details of our deliberation, perhaps to determine what arguments were effective and what arguments were not.  The defendant was standing right next to him.  So I went over with him what we had discussed.  When I mentioned that we felt there would have been breathalyzer evidence had she failed the test, the defendant suddenly laughed and said "Of course there was no breathalyzer evidence, I refused to take the test."  This fact, combined with what I read on her face during this admission, a sort of ha-ha-I-fooled-you look, immediately changed my mind.  My heart sank in my chest and I realized I had been instrumental in allowing a person who had been endangering herself and others while driving drunk to get off scott free.

The lawyer explained that under Massachusetts state law it is considered the equivalent of invoking the fifth amendment, you can refuse breathalyzer and sobriety tests on the grounds that it would incriminate you.  Further, the prosecutor in an OUI case is not allowed to reveal if a defendant refused the breathalyzer or sobriety test in Massachusetts.  So this is why we had not gotten any breathalyzer evidence, because the defendant herself believed she was drunk at the time, and had refused the test.  My expression probably betrayed my feelings because the defendant laughed again and said to her lawyer "He's starting to think he made the wrong decision."

I was not amused.  I looked her in the eye and said "If I were you, I'd be thanking my lucky stars I got away with it because you very nearly didn't, so you damn well better not do it again."  I turned and stalked away.  Minutes earlier I was feeling pretty good about doing my civic duty.  Now I was furious, mostly with myself for being such a tool.  The two most convincing and outspoken jurors in that deliberation room had been the lady who's father was a police officer and myself.  Had I not been there, the defendant might have gotten the conviction she deserved.

I fumed about it for days afterward, but like all things, eventually it faded from my consciousness, except for one detail--if there is no breathalyzer evidence, the defendant refused the test.  This one piece of information would likely cause me to immediately feel a defendant was guilty if no breathalyzer evidence was offered, so in order to obey the law, from this point forward I would need to excuse myself from juries for OUI cases.  I'm not sure I buy the "fifth amendment" comparison.  Unless I'm mistaken (always a possibility), if a witness asserts their fifth amendment privilege, they do so on the stand in front of the jury.  The jury doesn't get shielded from the fact that the witness refused to answer.  So I fail to see why the jury should be shielded from the fact that the defendant refused to take a sobriety test or a breathalyzer test.

I was reminded of this story by an article in the Sentinel & Enterprise (the local conservative rag) about the defendant's right to refuse the breathalyzer. 

...When state police arrested a Fitchburg police detective last month for operating under the influence, he refused to perform field sobriety tests or take a breathalyzer, according to a state police report.

And when state police arrested a Fitchburg school district guidance counselor earlier this month for OUI, she also refused to take the breath test, a police report shows.

Both of their trials are scheduled to take place in the next two weeks.

An easy win?

OUI cases are a cakewalk if there is no breathalyzer results and no field sobriety tests, according to attorney Christopher M. Uhl, who defends drunk driving cases...

I will not debate the accuracy of the breathalyzer test--there is evidence both ways.  But this event in my life bothered me for a long time and that is what I wanted to relate.

What do you think?  Should a jury be allowed to know that a defendant refused a field sobriety test or a breathalyzer test?

Today the Supreme Court upheld the federal ban on "intact dilation and extraction" abortion procedures, termed "partial birth abortions" by those given to inflammatory speech.  Yet another backward step to thank our President for. From the New York Times article Supreme Court Upholds Ban on Abortion Procedure:

...Today's decision gave the anti-abortion forces what they had hoped for with the more conservative makeup of the high court since Justice Alito replaced Justice Sandra Day O'Connor. Abortion opponents are sure to be pleased by some of the language in Justice Kennedy's opinion, including his observation that "the government may use its voice and its regulatory authority to show its profound respect for the life within the woman."...

..."I applaud the court for its ruling today," Representative John A. Boehner of Ohio, the Republican minority leader in the House of Representatives, told The Associated Press. "My hope is that it sets the stage for further progress in the fight to ensure our nation's laws respect the sanctity of unborn human life."

But Eve Gartner of the Planned Parenthood Federation of America said the ruling "flies in the face of 30 years of Supreme Court precedent and the best interest of women's health and safety." The ruling sends the signal that "politicians, not doctors," will make health-care decisions for women...

...Roberta Combs, president of the Christian Coalition of America, said: "With today's Supreme Court decision, it is just a matter of time before the infamous Roe v. Wade decision in 1973 will also be struck down by the court."

Y'know I dismiss slippery slope arguments nearly all the time, but it's kind of hard to ignore the fact that these folks come flat out and say they want to end all abortion by taking away a woman's right to choose what happens inside her body.

It's also hard to ignore that the Supreme Court of the United States of America, after 34 years of upholding a woman's right to choose as more important than the right to life of an unborn fetus/embryo/zygote, has now done an about-face and approved a ban on certain types of abortion procedures, procedures that are considered necessary by many in the medical professions.

Late term abortions are pretty controversial in my book, and I have a lot of trouble accepting the practice, which is to say, I don't like it at all.  But I still feel the ultimate decision lies with the pregnant person herself, not the government, and certainly not a religious fanatic who is trying to enforce his or her morals on the pregnant person via the government.

I view today's court decision as a profoundly disturbing mistake.  I hope it does not become a wedge used to erode women's reproductive rights further in the future, as the anti-abortionists seem to hope it will.

I'm also fed up with the inflammatory anti-abortion/anti-stem cell research rhetoric.  I'm sick of hearing abortion opponents decry that young pregnant women are "lining up to kill their children" and other such bullshit.  If you sat down in a restaurant and ordered fried chicken, anti-abortionist or not, you'd complain if you received a plate of fried eggs because you know damn well that eggs aren't chickens.  Scrambling an egg is not the equivalent of killing a chicken, anymore than cracking open a chestnut is the equivalent of felling a tree.

Zygotes and embryos are not human beings.  They are a form of human life, yes, but they are not humans.  Through the fetal stage they become human beings, but it isn't clear exactly when.  This is why I have moral issues with late-term abortions.  If at the conclusion of a normal pregnancy, what emerges from the mother's birth canal is a person, then surely it was a person sixty minutes earlier.  The question of exactly when does a fetus become a person plagues me.

It would be great if ultimately there were no abortions (which is why birth control should be readily available in this country, and taught in school), but at some point a medical professional may decide that a woman's life is in serious danger unless she receives an abortion.  I don't think that the law should be tying his hands or hers, no matter when during the pregnancy that conclusion is reached.

Ron of Ron's Blog notes that we are going to be paying for the Bush court for a generation.  No lie, say I.

With Democrats finally packing some power, I wonder if the Bushies can feel the tighting of the net closing in around them.  For this administration, the time of easy sleaze would seem to be rapidly ending.  Future sleaze will have to be far less brazen I think.  The investigation into the firings of the federal prosecutors is heating up, Gonzales looks to be on his last legs, and now Rove is once again catching flack.  From a Guardian Unlimited article:

...In the latest twist to a high-voltage confrontation between congressional Democrats and the White House, the administration yesterday admitted that missing emails sent on Republican Party accounts may include some connected to the firings.

Democrats have accused Karl Rove, a top adviser to the president George Bush, and other senior aides of using the email accounts maintained by the Republican national committee to circumvent government disclosure requirements.

Following a meeting between Republican party lawyers and congressional investigators, Henry Waxman, a fierce Democratic critic of the White House, said he learned that Mr Rove might have deliberately deleted them himself - an accusation rejected by Republican party officials.

Mr Rove and 21 other White House officials maintained separate email accounts for government business and work on political campaigns. Democrats suspect they used these political accounts for official work to avoid leaving a paper trail...

Boy, all this scrutiny must be incredibly unpleasant to the administration.

Good.

According to the Hartford Courant, sentencing in the Julie Amero case I wrote about last month has been pushed out a second time to April 26.  States Attorney Michael Regan has become involved.  No reason for the delay has been officially given, but it's clear that it probably has something to do with a pantload of people who actually have a clue when it comes to computers saying, in effect, "WTF are you idiots doing over there?!!?"

Stay tuned...