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June 15, 2009

Reader reponds to Bill of Rights claim

Robert Condlin of Baltimore was so provoked by one reader comment in Monday's Getting There column that he wrote a lengthy, well-reasoned response. The column was a summary of reader response to a previous article describing the multiple speeding offenses of speed camera opponent and Annapolis lobbyist Bruce Bereano.

Here's what Condlin had to say:

Your story today has a quotation from a letter in it that I’d like to respond to.  Here’s the quotation.

"Ever since the adoption of the Bill of Rights, citizens have had the right to confront their accusers with cross-examination and they have had the presumption of innocence. This goes out the window with speed cameras, red light cameras, etc. The state does this with a fictitious process that converts a minor criminal penalty into a 'civil fine.' By making the fine a civil matter, rather than criminal, the state throws the Bill of Rights out the window."

There are two arguments in this paragraph, though the writer seems to treat them as one, and both are bogus. 

First, take the "confrontation" point.  It is true that there is a constitutional right to confront one’s accusers and another to be presumed innocent until proven guilty, but speed cameras do not deny either of these rights.  Speed cameras collect evidence of speeding, that evidence is introduced against the defendant (at trial if the defendant chooses to contest the charge), and if the defendant is not able to discredit or overcome the evidence he or she is found guilty (or liable).  That’s the way all trials work, civil and criminal alike, speed camera proceedings are no different.

Defendants are entitled to "confront" speed camera evidence by cross examining technicians to show that the camera was malfunctioning, improperly set, or the like, and they (the defendants) are presumed innocent until they are unable to do this.  But as with any trial, if the evidence goes against you, you lose.  What people don’t like about speed camera evidence is that it is strong evidence and difficult to rebut.  But there is no constitutional right to have only weak evidence introduced against you.  That’s like saying it’s unfair for the state to have an eyewitness to a crime because eyewitness testimony (at least some of it) is difficult to discredit.  No one would buy that argument for murder, why would they buy it for speeding?

This ersatz "confrontation clause" claim sounds like the kind of argument someone would make if he or she had never studied law.  It’s silly.

The second point, that there is something disreputable about "convert[ing] a minor criminal penalty into a ‘civil fine’" is both incoherent and vacuous.  A "fine" is a "minor criminal penalty" by definition.  Most minor criminal offenses are punished first with a fine and jail time only if a defendant is a repeat offender.  There is no illicit "conversion" of any kind going on in the speed camera situation: "fine" and "minor criminal penalty" are synonyms.

The second part of the point, that making an offense civil rather than criminal somehow "throws the Bill of Rights out the window" is even more difficult to make sense of.  Is the person arguing that there is a constitutional right to jail time for every criminal offense no matter how minor, that a state somehow offends the Constitution when it imposes a lesser penalty for certain types of offenses?  If so, this "unqualified right to the most severe form of punishment in every case" argument is a completely novel point in constitutional law scholarship; the letter writer ought to put it in an article and submit it to law journals.  He or she has an insight that escaped Holmes, Cardozo, Brandeis and the boys (and now girls).  Of course there is always the problem of getting it published, law journals have standards, but then that’s what blogs are for.

Sorry to go on for so long, but I have seen these silly arguments trotted out again and again in letters about speed cameras and have just gotten tired of hearing them. 

I understand that discrediting the arguments will have no lasting effect on opponents of speed cameras; they will come up with something equally bogus as substitutes, but one fights only one battle at a time. 

Posted by Michael Dresser at 10:04 AM | | Comments (6)
Categories: On the roads
        

Comments

Thank you, Mr. Condlin for fighting the battle. Those who oppose the cameras are too often those who will be caught by the cameras. Let them contest the fine in court.

Wow, this guy gets it totally wrong.

1. The "conversion" from a criminal to a civil offense is real. What changes is the *standard of proof.* Instead of "beyond a reasonable doubt" suddenly it becomes, for the pure convenience of earning money, "more likely than not."

2. Under Maryland law, you ARE presumed guilty. In fact, the doctrine is called "rebuttable presumption." Because you are the owner of the vehicle, you are presumed to be driving. It is up to you to prove your own innocence with a set of "acceptable" defenses presented in the statutes.

It's a farce, and it's all about the money.

To provide yet one more constitutional argument, consider this. If an innocent man is charged in a court of law with murder, he is not asked to "find the real killer" before being released. That's the test of whether innocent until proven guilty is at play. It's the opposite of how the speed camera law works. Read yourself:

http://mlis.state.md.us/asp/web_statutes.asp?gtr&21-809

"To satisfy the evidentiary burden... the person named in the citation shall provide to the District Court a letter, sworn to or affirmed by the person and mailed by certified mail, return receipt requested, that: (ii) Provides the name, address, and, if possible, the driver’s license identification number of the person who was operating the vehicle at the time of the violation;"

If you do not turn informant on your wife or husband (violating the principle of spousal privilege) you are guilty. Moreover, YOU must use certified mail. Does Maryland use certified mail to ensure you get the ticket in the first place? NO. Why not?

What more evidence could anyone need that this is about money and not justice?

You missed this one entirely and reveal your ignorance. You claim that you can cross-examine camera technicians, but the reality is that these people are NOT available to cross examine in court. It is a civil trial, not a criminal one, and there is no cross examination of anyone that the prosecution doesn't bring to the court room. The fact remains, there are NO eye witnesses for each camera flash that know beyond the shadow of a doub that the camera was working properly. Ask a cop how often he gets a bad reading on his radar gun - he'll tell you it happens all of the time.

On top of this, the photo companies indoctrinate the judges and staff through training sessions (sponsored by the equipment makers) to make them believe that the equipment is infallible, when it is not. Don't think these machines malfunction? Just look at http://PhotoRadarScam.com/malfunctions.php

Finally, the accused has little chance of defense as he is not aware of a citation until weeks after the offense has occured. If I asked you what song was playing on your radio 2 weeks ago when you drove past a certain McDonald's, could you tell me? No, of course not. If a cop had pulled you over though, you could have jotted down a note if you felt it was important. I must also question the effectiveness of issuing a citation weeks after an offense has ocurred. If you have children, next time they do something wrong, wait a week before punishing them and see how effective that is.

Mike --

You're way out in left field as for logic in your arguments and one person completely discredited your position as it relates to the requirment of informing on the actual driver of the vehicle. I can't wait to hear how you try to overcome this. When will you get a lue: it's about money, stupid.

The argument against speed cameras is simply than they are a nuisance. As a daily commuter on Randolph Road in Montgomery county on which I must pass two different locations that have speed cameras, I can tell you that they definitely slow down traffic. So slow, in fact, that they cause traffic congestion. The speed limit at these locations is 35 MPH, but at the camera locations, traffic slows to between 20 and 30 MPH. Traffic along the road barely goes above 5 MPH over the limit on other sections of the road. The cameras do more to hinder traffic, than the benefit of catching speeders.
The real issue of why people are opposed to speed cameras is that everyone knows they have nothing to do with keeping the road free of speeders, but to raise revenue. They are the perfect hidden tax because the blow hards make the point that they are “slowing down traffic”, or “tough on crime”, or some other lame excuse. Speed cameras are no better (maybe even worse) than the lottery or legalized gambling.
The emperor doesn’t have any clothes and about time that we yell from the top of our lungs that camera man is naked.

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About Michael Dresser
Michael Dresser has been an editor, reporter and columnist with The Sun longer than Baltimore's had a subway. He's covered retailing, telecommunications, state politics and wine. Since 2004, he's been The Sun's transportation writer. He lives in Ellicott City with his wife and travel companion, Cindy.

His Getting There column appears on Mondays. Mike's blog will be a forum for all who are interested in highways, transit and other transportation issues affecting Baltimore, Maryland and the region.
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