Monday, June 27, 2011

My Interview with Ace Foreman, Annotated

I previously presented an email interview with Will Foreman. If you will recall, (even if you won't), Will Foreman has received 40 automated speeding tickets from Forest Heights, Maryland. When Maryland eventually grants him his day in court, sometimes after more than a year's delay, he acquits himself so well that the judge has acquitted him each time. With five or more victories, Will Smith is now an ace at beating automated speeding tickets.

Will's defense consists of overlaying the two images of "his" car that are provided with each of his tickets, and showing that "he" could not have been speeding because of the distance covered in the time difference between the photographs. I put "his" and "he" in quotes since the cars typically are his Eastover Auto Supply company car and the drivers are his employees.

The tickets are clearly a state-sponsored bunko racket that suck millions of dollars out of the pockets of the Maryland citizenry while the city, state, and device manufacturer get rich. The authorities know (or absolutely should know) that the automated system fails frequently and egregiously. Out of the 40 tickets Will Foreman has received, for example, he believes he can successfully defend all 40 in court.  The photos will show that he was travelling near 35 when the laser system claimed he was travelling as fast as 70 mph.

Maryland will make Will Foreman pay for his insolence, one way or the other. Make no mistake about that. They will threaten to withhold the registration on his vehicles, since he has unpaid tickets, though they won't hear his case in court. They will make him go to court to fight one or two tickets at a time, losing at least one-half day's work each time. They will charge him court fees well beyond the cost of the ticket, assuming he was willing to simply pay the ticket by mail.

I've been interested in this situation since I first heard of it. To me, these small-time wrongful convictions are a microcosm of our country's big-time wrongful conviction problem.  While people can't envision themselves being wrongfully convicted of robbery, rape, or murder, they can envision themselves being ripped off by The Man for a speeding ticket.

I'm going to re-post the Will Foreman email interview below. This time, I'm going to interject my comments in italics. Hang on. Here we go.

TSJ: When you appear in court, who represents the State?
WF: They normally have just a Forest Heights Police Officer (the last time I was there they had 2 officers, and Optotraffic had 2 reps there as well.)

As an unqualified non-attorney, allow me to offer my broad assessment of Will Foreman's legal situation. Trust it at your own risk.

In this country, a person might have to defend himself in court against a civil suit (citizen against citizen) or against a criminal charge (state against citizen.) A traffic ticket is a criminal matter, albeit a minor one. The three types of criminal offences are citations, misdemeanors, and felonies. Your nomenclature may vary.

Given that Will is facing a criminal charge, or charges, each time he appears in court to fight a traffic ticket, or tickets, he is protected by the Sixth Amendment to the Constitution of these United States. Let's take the time to read that Amendment. It might be relevant.
AMENDMENT VI: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
To start off, Will is certainly not getting a speedy trial. The State of Maryland is likely to disagree with me. The Supreme Court of these United States, however, might (not certainly but might) agree with me. (See Barker v. Wingo.) You readers, however, know I'm right. If you want to go to trial and defend yourself, and you are not allowed to do so even within a year, you are not getting a speedy trial.

Will is not getting a trial by an impartial jury, either. [Caution: Sentence fragment follows.] Not unless he wants to pay extra.

TSJ: How is the case against you presented to the judge?
WF: The officer reads the statement describing the location time place and speed.  He always explains how the machine "self checks itself daily"

So I guess the officer who says "the machine self-checks itself daily" constitutes the entirety of the State's case, the "witness" who Will Foreman could confront.

This question and response prompts me to present another fine Amendment to our Constitution. This time, it's the ever-popular Fifth.
AMENDMENT V: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Since Will Foreman is charged with neither a capital offense nor an infamous crime (i.e. a felony), the State of Maryland can bring charges against Will without first going to a Grand Jury. Instead they simply mail him a ticket, instruct him to pay $40 (in which case they will drop the whole matter) or defend himself in court (in which case they will make matters as painful as possible.)  It's his decision.

If Will Foreman elects to go to court, he need not testify against himself, or so says Amendment V. He can testify if he so chooses, but he need not do so. Since Will Foreman (or any defendant) does not have to prove himself innocent (does not have to testify at all), the burden of proof falls on the slippery shoulders of The State. 

Apparently, explaining that a machine issued a ticket and the machine self-checks daily is sufficient proof in most cases.

TSJ: Would you be allowed to call witnesses?
WF: Sure

I thought I would ask, even though Will Foreman has a Sixth Amendment right to call witness. I'm glad the answer was affirmative.

What I'm thinking about here, as I ask this question, is the possibility of calling the fine folks at Optotraffic, makers of the piece of crap system responsible for taking from the innocent poor and lining the pockets of those who serve them.

TSJ: Would you be allowed to subpoena people or documents?
WF: In advance I believe.

Again, I thought I would ask, even though the Sixth Amendment gives Will Foreman the right to a "compulsory process for obtaining witnesses in his favor."

In the first criminal case where I was working as a forensic data analyst, I was surprised to learn that defense attorneys could very easily, and without coordinating with anyone else, issue subpoenas to force testimony in court. I was wondering if Joe Q. "Will Foreman" Citizen could do the same thing.

During Will Foreman's last trial, the recording of which can be heard here, the Judge clearly informed Will Foreman he could subpoena the manufacturer.

TSJ: Would you be allowed to have an attorney?
WF: Yes, but why?

I asked this question because Will Foreman's trials don't seem quite like the real deal. Most obviously, he faces a judge, not a jury. In that regard, the court handling the cases seems more like a small claims court than a criminal court. Generally, you are not allowed to have an attorney appear with you in small claims court.

TSJ: Are all the cases being heard traffic ticket cases?
WF: Not all just traffic cases, the entire room is just Forest Heights / Optotraffic "offenders"

I didn't anticipate the answer to this question, but I shouldn't have been surprised. The Court system is trying to make it as easy as possible for the State, and as difficult as possible for the defendants. If the court dates had been scheduled for the convenience of each defendant, that would have caused Forest Heights to send someone to court over and over and over, as each case was being heard at the defendant's convenience. Forest Heights would suffer the same inconvenience if the cases were scheduled in the same sequence as the date/time of the tickets. The only way I can see to make it as easy as possible for the State to prosecute its cases is to have all the offenders (allegedly presumed innocent) show up at the same time.

If it is silly to suggest that a trial be scheduled at the convenience of the defendant, is it also silly to accept that trials should scheduled for the convenience of Forest Heights?

TSJ: About how long does each of your cases take?
WF: It varies.  Some judges have a problem grasping the matter.

Good one.

And a good point, as well. Nobody in that courtroom understands how that black box works. (That assumes knowledgeable folks from Optotraffic don't show up.)  Nonetheless, the machine is assumed to be telling the truth, even though it has been shown repeatedly to lie.  It is presumed to lie only in those few cases where people such as Will Foreman show up with pictures and analysis.  It is presumed to be truthful when Jane Doe shows up and says "I wasn't speeding."

The fact of the matter is that The State has relieved The State of its burden of proof.  Defendants must prove themselves innocent. 

TSJ Did you watch any of the other people present their case?
WF: That is the saddest part.  Forest Heights is not an affluent area.  Many of the people are there because they cannot afford to lose the 40 bucks.  At the risk of sounding like an elitist, there is a always a parade of poor uneducated people totally unprepared to defend themselves.  People argue their car cannot go that fast.  They claim there isn't a school near there.  I've even heard "I have lived here for x number of years, I know the camera is there, I always slow down there.  It is very, very sad.  And that's what makes me so upset!

Sad one.

TSJ: Can you elect to have a jury trial? 
WF: Yes. It costs $80.00 and it's elevated to circuit court.

So there you go. Will Foreman is protected by Amendment VI.  He does have a right to a jury trial, and it will only cost him twice the base rate of the ticket. (I assume, but do not know and foolishly did not ask, that the $80.00 fee is refunded if Will Foreman prevails.)

This makes me wonder even more about what cheesy kind of court is hearing these speeding ticket cases. It reminds me of Bette Midler, the kidnap victim in Ruthless People:
Bette Midler: So, when do I get out of here?
Helen Slater:
As soon as Mr. Stone pays the ransom.
Bette: What's the problem? What is the ransom?

Well, we asked for $500,000.
That should be no problem.
He wouldn't pay.
Bette: He wouldn't pay?

Then we asked him for $50,000.
Bette: Yeah?

He still wouldn't pay. So now we're lowering our price to $10,000.
Bette: Do I understand this correctly? I'm being marked down?
[Starts crying] I've been kidnapped by K-Mart! 
Will Smith is being tried by the K-Mart of court systems.

TSJ: Can you appeal a guilty verdict?  If so, how?
WF: Yes, again it's elevated to circuit court.

What's going on here is that the State is increasing the transaction cost of fighting the ticket to a point where no rational person would fight the ticket. If it will cost you more to fight the ticket than to pay it by mail, why fight. Elsewhere, this is called extortion. Elsewhere, people are charged under the RICO act for such behavior.

TSJ: Are you told what time your case will be heard, or do you have to plan to be there the entire time?
WF: No you must arrive for the calling of the docket and remain there until your hearing.

Again, the emphasis is on making matters as efficient as possible for the court and the city (they are one in the same) and as costly (in terms of dollars, time, and inconvenience) for the defendants (allegedly presumed innocent.)

TSJ: What sort of defenses have been successful?
WF: I saw a scientist successfully make his case.  He was able to dispute the technology used by Optotraffic. I am requesting the transcript from the hearing because I want his name. The Judge heard our defenses simultaneously.  We had to wait until the end.  We never met, but it was apparent to the Judge that both of our arguments were thoughtful and coherent.  In an attempt to expedite he heard us together. Some have gotten off because they were ticketed long after school hours. The majority of the successful arguments have focused on distance traveled between images.

Who would have guessed math and science would have ever paid off?

TSJ: What sort of defenses have been unsuccessful?
WF: The most common is when the accused explains how long they have lived there.  That they are aware of the camera's presence.  That they make a conscious effort to slow down at the location.  Others have unsuccessfully argued that their cars cannot accelerate from the previous traffic light that quickly.  Many claim the camera isn't near a school.
TSJ: What is the nominal fine if you fight the case?
WF: It depends on the Judge.  My most recent session the Judge offers to everyone present that if they plead guilty he would reduce the fine to $2.00 plus court costs of $22.00.

The system survives only as long as the automated speed detector survives. They don't want people defending themselves successfully. They want people to pay by mail. If they come to court, they want people to plead guilty. The most expensive thing you can do is fight the system.

The court will go to great lengths to keep the machine from being proved wrong, or stupid, or perjurious. The court will delay Will's trials for more than a year. 

If you show up with a CarChip that had been plugged into your OBDII interface underneath your dashboard, and that CarChip logged your speed at the time the city said you were speeding, and the CarChip provides proof positive you were not, the court still won't declare the machine to be stupid. It will find you Not Guilty because the city used an "improper file document."  

If you show up a second time with your CarChip for another bullshit speeding ticket, the Court will declare you Not Guilty because the city refused to show up for the trial. The City will ticket you, and the City will prosecute you, and the City will subpoena you, and the City will force you to give up half a day of work, but if you have a CarChip, they won't show up to present their case. They don't want their piece of crap equipment being declared evil, wrong, and stupid.

They don't want justice. They want the money. They will not give up easily.

TSJ: What is the nominal fine if you plead guilty?  
WF: I don't know what normal is, just what I stated above. 

TSJ: Why might someone show up and plead guilty rather than just pay the ticket by mail? 
WF: They are intimidated by the prospect of appearing before the Judge as well as the police officer that patrols the very streets where they reside. 

Intimidate.  His word, not mine.  Sounds right to me, however.

TSJ: What are the conditions of payment? Do people have to pay on the spot? Must they pay cash? 
WF: You must pay on the spot.  They will accept cash or credit cards. 

The really want your money.

TSJ: What if people are unable to pay the penalty? 
WF: I don't know.

TSJ: What sorts of attitude do people generally assume? Are they angry? Are they subservient? Do they plead for mercy?
WF: All of the above.  Most are disgusted!  Many feel violated and absolutely helpless. Many won't return to fight because they feel it's not worth their time.

It is a serious, serious problem when people lose faith in their government. The true cost of wrongful convictions goes beyond the millions of dollars lifted from the pockets of the citizenry. It even goes beyond the lives of a quarter million people wrongfully behind bars today.

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