The Time Has Come for Delayed Reporting Laws

A child gone missing is always a tragic event.  So what is one to think of the apparent increase in the number of cases in which parents do not immediately report a child missing?  It is difficult to really say whether these cases have become more frequent.  This is not an area for which statistics are kept.  Likely, there have always been a few cases each year, although I can't prove it.  Whether there has been an increase or not, clearly the media has increased its coverage of such cases, especially since the sensational case of Casey Anthony in Florida.  The case was media ready.  The young, attractive mother didn't report her baby missing for thirty-one days, calling emergency services only after her mother confronted her about the whereabouts of the child.  A car trunk with the smell of decomposition.  The mother that tells five thousand lies to police - and is found not guilty.  The networks could ask for nothing more than this pre-made media darling. 

Of course, after evaluating the ratings fest that was the Casey Anthony case, the media is hoping for a repeat.  Now seemingly every case where a parent waits to report to the police gets reported by the media.  Presently, there is the case of nine-month old Levon Wameling.  Levon has been missing since May 29, 2013 and was allegedly last seen by his father, Jevon..   Jevon Wameling claims that he got locked out of the house, left Levon on the front steps while he went around back and when he opened the front door, Levon was gone.  Problem is, Mr. Wameling waited until June 11th to report Levon missing, doing so only after his parents implored him to do so.  Community searches have been organized but there has been no sign of Levon thus far.  Mr. Wameling has not been named as a suspect and has retained an attorney, which is not only his right, but a very good idea indeed.

The media is also covering the case of eighteen-month old Elaina Steinfurth of Toledo, Ohio.  Elaina went missing on June 2, 2013.  Her mother, Angela Steinfurth, has been arrested for child endangerment.  Ms. Steinfurth allegedly told police that she last saw Elaina at her ex-boyfriend's home on the morning of June 2nd, when she noticed Elaina had a black eye and bloody nose.  She did not get the child medical attention and instead left the child with her ex-boyfriend, Steven King II.  Thus the child endangerment charges.  Apparently, the exact time the child went missing is not known, as the mother did not report that the child missing until after the father, T.J. Steinfurth, attempted to pick up the child for visitation.  Mr. Steinfurth was told he could take the couple's four year old, but not Elaina.  After much stalling, the mother finally admitted that Elaina was missing.  Nothing is known by the media regarding the child's whereabouts after that morning, although there have been several searches at the Maumee River, on the bank of which a diaper was reportedly found. 

I will not speculate at this time about the fate of these children.  It is clear, however, that the most important time in an investigation is within the first forty-eight hours.  Even under the best case scenario, where the parents are not involved in these crimes, any delay in investigation greatly decreases the chances that investigators will find the missing.  There is no rational reason that a parent would delay reporting a child missing.  None.  This is why the parents are under such heightened scrutiny by both police and the media.

The scrutiny given these cases by the media should result in more than just increased ratings for the networks.  Any result short of a change in the law would be entirely unsatisfactory.  First and foremost, the children must be recovered if at all possible.  But regardless of individual outcomes, we should push hard for new laws that make failure to report a missing child within a reasonable time a felony. First, the law would deter delay.  Additionally, in those cases where a parent is involved somehow in the disappearance, a law making delay a felony will allow authorities to charge parents even where the parent has done a thorough job of destroying any trace of what became of her child.  I am not usually a punishment only proponent.  But at the juncture where a child is gone forever and but for the parent's behavior the child might have been found, I see no alternative.

The Amorality of Texas: The Ezekiel Gilbert Case

On Christmas Eve 2009, a Bexar County, Texas resident was bored.  Ezekiel Gilbert, to assuage his boredom, decided to peruse the classified adult ads on Craigslist and hire himself an escort.  The escort, 23-year-old Lenora Ivie Frago, met Gilbert, who paid her $150 for one half hour of her time.  Apparently, Gilbert believed that "time" meant "sexual intercourse."  Frago, on the other hand, thought "time" meant "time."

At the end of the half hour, Frago got up to leave.  Gilbert informed her driver that he wanted his money back because Frago had not had sex with him as expected.  The driver informed Gilbert that sex was not included in the price and began to drive away.  Gilbert got pissed.  He shot four rounds at the vehicle, striking Frago in the back of the neck and paralyzing her.  After seven long, agonizing months, Frago succumbed to her injuries and died.  Gilbert was charged with murder.

This week, Gilbert was ACQUITTED.  That's right - the jury sent him home.  Texas has an incredibly broad statute allowing the use of deadly force.  The statute allows deadly force to prevent such acts as "the imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime."  Holy &*%^.

Gilbert's attorney argued that Frago, by taking the money and not providing sex, committed both  "theft during the nighttime" and "criminal mischief during the nighttime."  Clearly the first problem in this case is the broadness of the statute.  Most states do not allow deadly force for the defense of property.  Texas and Florida are two notable exceptions.  But read literally, this statute would allow, not only the present situation, but shootings in situations involving shoplifting, minor vandalism, throwing rocks at cars, etc.  It is difficult to imagine how we got to this place. In the historic sense of the law, deadly force is only justifiable in response to actual imminent threat of death or great bodily harm.  Here, it has been extended to transgressions which could, in the everyday sense, be considered childish.  Additionally, as the prosecution argued, it defies the spirit of the law to include criminal activity under the protection of the statute.  Gilbert essentially killed Frago for not engaging in illegal activity with him. 

Most commentators on the ridiculousness of this case have focused on the illegality of the activity which Gilbert proposed Frago owed him.  But I don't blame the law alone.  Certainly, if the law were different, the outcome may have been different.  But the jury is to blame for buying into an argument that was sexist at its core.  Jurors are told to follow the law, but they are also told to bring their common sense into the jury room with them.  Apparently, this jury's common sense included enough prejudice toward women that they believed the argument that not providing illegal sex was, in fact, "theft" or "criminal mischief."  Unbelievable but true.  Would the case have had the same outcome if Gilbert had been a woman and had shot a male escort whom she "believed" was obligated to have sex with him?  Likely not.  Would the case have had the same result if the theft had been five dollars taken off the dresser of a neighbor?  Maybe.  The point is:  this case illustrates two amoral viewpoints apparently held by at least some Texans today.  First, that it is okay to take a life for the sake of property and second, that women who don't have sex under contract are "thieves."

According to Noel Brinkerhoff of AllGov.com, Ezekiel Gilbert had a press conference after his acquittal.  He stated "I sincerely regret the loss of the life of Ms. Frago.  I've been in a mental prison the past four years of my life."  Well, Mr. Gilbert, that is what you should feel after you murder someone in cold blood.  And your mental prison should have turned into a physical one.  Thank your lucky stars you live in Texas.

Just Keepin it Real
HKB

SCOTUS King Decision Opens Dangerous Door

Those who follow the Supreme Court no doubt noticed that SCOTUS released its decision this week in the case of Maryland v. King 569 U.S. _____(2013). By a margin of 5-4, the Court held that officers, upon making an arrest for a serious offense, may take and analyze DNA taken through a cheek swab as part of their booking procedure.  Such a procedure, they say, is akin to a fingerprint or "mugshot" photograph and is reasonable under the Fourth Amendment. Many on the side of "law and order" will no doubt laud this decision as a common sense victory for law enforcement.  Problem is, there is nothing common sense about it.

Alonzo King was arrested in Maryland for pulling a gun on some people in 2009.  Pursuant to a Maryland law that allows police to collect a DNA from the cheeks of those arrested for "serious offenses," King's DNA was collected.  While King awaited the adjudication of the gun case, his DNA was run through CODIS, the Combined DNA Index System, which contains the combined records of DNA laboratories from the local through the state level.  King's DNA matched a DNA sample taken in an unsolved 2003 rape case.  He was charged with the rape and convicted. 

The Court rests its decision on the rationale that the DNA is taken for identification purposes only - not for investigative purposes.   Suspects lie about their identity all the time, so says the Court.  While fingerprinting is a more than sufficient means to identify someone, then DNA identification is even better.  Nothing is more accurate at identifying a person than DNA, after all. And since the search is being done for identification, no particularized suspicion based on probable cause is required.  And neither is a warrant.  And so we have our newest exception to the warrant requirement of the Fourth Amendment.

Certainly, history is full of cases in which SCOTUS has carved out reasonable exceptions to the Fourth Amendment warrant requirement.  Terry stops and airport searches, for example, are allowed for safety reasons.  drunk driving checkpoints are allowed as well, and serve to both identify those who are in violation of the law and to deter such violations.  These types of exceptions to the Fourth Amendment are termed "special needs" searches.  The Court, until now, has been very careful in carving out these narrow exceptions.  However, until King, the Court had not indicated a willingness to approve searches "whose primary purpose was to detect evidence of ordinary criminal wrongdoing."  Indianapolis v. Edmond, 531 U.S. 32, 38 (2000).

The majority's assertion in King that DNA swabbing is akin to other non-investigatory booking procedures and special needs searches defies reality.  Just how much, is reflected in the strange and almost unheard of alliance formed between Justices Scalia, considered by many to be the most conservative member of the Court, and Justices Ginsburg, Sotomayor and Kagan, the Court's clear liberals.  This particular alliance is so unusual that when I first learned of it I thought the earth's poles must have shifted.  To his credit, Scalia does an excellent job in his dissenting opinion in disassembling the majority's assertion regarding the purpose of the DNA collection, exposing the only truly logical reason to collect DNA - investigation.

So what if the DNA is used for investigation, one might say.  "I'm never going to be arrested for a "serious offense!"  "I haven't done anything to have to worry about the police getting their hands on my DNA," many might say. 

But there are some practical problems with the decision in the first instance.  The Court claims that, if a person is ultimately acquitted of the offense for which they were charged, the DNA will be erased from the system.  Anyone with experience in criminal expungements can tell you that what the State says it erases and what it actually erases are two very different things.  Second, what are the limitations on the decision.  Is it limited to only "serious offenses" (whatever the heck that means)? Police take fingerprints for misdemeanor arrests as well.  If DNA swabbing is no different than a fingerprint, why not take DNA for misdemeanor offenders as well? 

Aside from the practical issues presented by the decision, the decision's major flaw and danger is that it is intellectually dishonest.  There is nothing I despise more than intellectual dishonesty.  Don't try to sell me a bad thing and try to make it look like a godsend.  The problem with intellectual dishonesty is that it signals a willingness to reach a desired result by tinkering with logic.  The Court, instead of simply saying that it wishes to give law enforcement an additional tool, Constitution-be-damned, the Court pretends that the exception is constitutionally permissible. 

This willingness to be dishonest should concern every law abiding citizen.  Because THE COURT MAY NOT STOP THERE.  If they are willing to defy logic in this case, what happens when law enforcement finds another unconstitutional but awfully handy tool?  I have to admit, the opinion is even more surprising, considering this is the same court that said the police could not trail suspects via electronic GPS for an extended period of time.  They also said that police may not enter a home without a warrant simply because a K-9 officer at the threshold of a home alerts to the presence of narcotics. 

So while our homes are still somewhat protected from warrantless searches, our bodies, apparently, are not.  SCOTUS has opened a very large door to a scary, dark place.  Court precedents tend to lead to Court trajectories.  And the Court's willingness to eliminate the warrant requirement in this instance may very well be the beginning of the end of the Fourth Amendment.  Let us not forget that the Fourth Amendment is there to protect everyone - not just the guilty.

Just Keepin in Real.
HKB