Indiana University - Bloomington

Student Legal Services Blawg

Creepers, Peepers!

                Bostonians regard Indiana as flyover country.  We don’t have chowder, Fenway Park, or an accent that makes visitors think they woke up on the set of “The Departed.”

                What we do have, however, is a head start on Massachusetts in one key area:  perv punishment and prevention.  While the Massachusetts Tourism Board turns red knowing that “Massachusetts” and “upskirt” are joined in Google-search-infamy, Hoosiers can rest easy knowing that their legislators addressed peeper creepers years ago.

                Only 48 hours ago, Massachusetts’ highest court made national headlines by vacating a conviction against Michael Robertson.  Mr. Robertson’s daily activities apparently included riding public transportation and taking cell phone videos of women, specifically favoring those in skirts.  A female subject/victim complained to transit police and, thereafter, the police placed a decoy officer on the train.  Presumably, the decoy was wearing an outfit different from the conventional police uniform.

                Mr. Robertson couldn’t resist the sting operation, was caught taking footage of the decoy, and was arrested.  Earlier this week, however, the Massachusetts Supreme Judicial Court found the state law did not cover the filming in question.  Massachusetts’ statute prohibited pictures of someone nude or partially nude taken where a person had a reasonable expectation of privacy.  The Court found that a person in a skirt was not “partially nude” and that a person has no expectation of privacy on the subway.  Michael Robertson walked free.

                Today, Massachusetts broadened its law, prohibiting taking photographs of another’s nether regions under or around his or her clothing.  Gov. Deval Patrick hastily signed the bill into law.  That won’t affect Mr. Robertson, who has constitutional protections against retroactive prosecution.

                Why is this relevant in Indiana?  Well, Hoosiers have actual beaten the Eastern elite to the punch on pervs.  Before they turned to crucial issues like gay wedding cakes and the death of cursive writing, the Indiana General Assembly looked at upskirt pervs.  And they did not like what they saw.

                Before Michael Robertson, there was David Delagrange.  Mr. Delagrange had predilections  similar to Mr. Robertson.  Rather than ride the subway, which Indianapolis, of course,  does not have, Mr. Delagrange apparently went shopping at Castleton Square Mall in Indianapolis.  Rather than use a pedestrian cell phone, Mr. Delagrange was, in the words of the Indiana Court of Appeals, “outfitted with a video camera mounted to his shoe and controlled through an apparatus in his pants.”

                Anyone able to rig a working video camera to a shoe and control it through a pants-based apparatus could probably use those skills to do something useful for society.  Perhaps Mr. Delagrange learned engineering at Purdue before deciding his true passion was lurking in malls.

                Having decided, however, to use his resourcefulness to be a perv, however, Mr. Delagrange recorded upskirt photos of multiple women, including four underage girls.  Mr. Delagrange was arrested, and tased for good measure.

                A problem quickly arose, however.  Indiana’s voyeurism law only covered areas where a person expected some privacy, like bathrooms and fitting rooms, or a person’s home.  It did not, in other words, protect someone wearing a skirt in public at Castleton Square Mall.  The state couldn’t make a voyeurism charge stick, and an effort to make Delagrange a child pornographer was thwarted because the underage victims weren’t naked.

                As with Mr. Robertson in Boston, Mr. Delagrange largely walked.  He was still charged with resisting arrest, and the tasing presumably stung for a while.  Last year, the Indiana Court of Appeals made clear he could not be convicted under the old Indiana law.  The Indiana Supreme Court heard the case late last year. but it has not issued a decision.

                In 2011, Indiana legislators acted, making it a crime to photograph someone’s nether regions (the buttocks or groin regions) unbeknownst to them if they are “naked or undergarment-clad.” This rivals Indiana’s public nudity law (the Blawg has previously noted how, to Indiana legislators, “nude” can mean “not at all nude”) for clunky, slightly creepy wording.  Indiana legislators certainly look 50 shades of gray, but they clearly didn’t write it.

                In any case, thanks to David Delagrange, we beat Bostonians in a key quality-of-life area: criminalizing upskirts, doing so three years sooner than Massachusetts. It is a serious misdemeanor in Indiana to take them without permission, and it is a felony to publish or post them online.  Today, Massachusetts followed suit, adopting a similar law.

                The cases or Mr. Robertson and Mr. Delagrange both engendered dialogue.  Both men escaped full prosecution, creepy though they were, but both led to changes in the law.  They are also examples of how the law lags behind technology.  While there have always been “peeping Toms,” many states criminalized the behavior in question back when cameras were cumbersome devices.  Not many 1950s-era creepers could use a clunky camera and hand-held flashbulb without drawing attention.  In the 1970s and ‘80s, the Polaroid was state of the art, and those were hard to use quietly as well.

                Today, technology has made creepy conduct easier.  Legislators are slow to catch up, be it in the realm of revenge porn, cyber-stalking, or voyeurism law.  Indiana may not have made national news in 2011, but they can celebrate, with Midwest modesty, that they beat Beantown to the punch in criminalizing higher-tech creeping.

Randall Frykberg

Randall Frykberg is an attorney and the Director of Student Legal Services at IU.  He thinks Andrew Luck will eventually outclass Tom Brady, if he’d just forsake that God-awful neckbeard. 

Real-Life Call of Duty

November 11, 2013Uncategorized2 Comments

When people used to ask me why I liked being a litigator, I’d typically say I enjoyed intellectual combat. I liked to analogize that lawyering was a grand tactical battle, and I enjoyed the chance to out-prepare, out-strategize, and out- maneuver an adversary, to react more quickly when circumstances changed, and, in the end, to win.

Oh, and one more thing I liked about courtroom combat more than anything else? It is not at all like combat. Not in the slightest. Not even a wee little bit.

Lawyers are no better than sports announcers in their willingness to rip off military terms: ground game, shock and awe, shot across the bow, scorched earth. The analogy can seem appropriate, but only for the brief, fleeting moment before we realize we don’t know what the hell we’re talking about.

Student Legal Services proudly employs 21 law students, each doing his or her best to serve clients. Two of our interns understood service long before coming to SLS, having done so in pursuit of loftier objectives, under far more perilous circumstances, and at exponentially greater potential cost. In honor of Veteran’s Day, it’s fitting that you recognize them, along with the 516 other veterans who attend IUB and the 560 military family members who do the same.

Steven Clark joined SLS this semester. Between 2004 and 2009, Steve served on active duty in the U.S. Army, completing Ranger school and joining a scout-sniper platoon. For 15 months beginning in August, 2005, Steve deployed to Samarrah, Iraq and participated in raids on insurgent forces during a period of ferocious fighting and bloodshed. After completing his initial deployment, Steve, like countless others, was sent back to Iraq in 2008, this time to Baghdad as a squad leader conducting raids on “High Value Targets.” After another year, Steve returned to the U.S. as a Staff Sergeant and embarked on a path leading him to IU’s Maurer School of Law.

Josh Kurtzman graduated from the U.S. Military Academy at West Point, completed Army Ranger school, and eventually rose to the rank of Major. Josh was deployed to Iraq for the initial American invasion in March, 2003 and served a year in Mosul, a second year in Kirkuk, and then 15 months in Samarrah. After briefly returning to the U.S., Josh was granted a change of scenery and deployed multiple times to Afghanistan. He continues to serve in the Army Reserves while completing his third year of law school, including two years at SLS.

Josh and Steve take their cases and clients seriously, serving them skillfully. They are also patient with lawyers who slip up and claim that a lawsuit can constitute some variety of “warfare.” Though both men would savor a win over your landlord, bill collector, or cranky prosecutor, neither would trivialize their service by labeling an adversary as a “high value target” or claiming a courtroom had any similarity to a battlefield. They have experienced and seen enough sacrifice to know better.

In declaring November 11 Veteran’s Day, President Obama noted that veterans “continue to serve our country in new ways, bringing tremendous skills to their communities and to the workforce — leadership honed while guiding platoons through unbelievable danger.” Josh and Steve serve our country, community, University, and their clients, using their considerable skills. Any reader lucky enough to work with them knows that. I’m proud of what they do every day for SLS. I’m even prouder that their service kept me from ever having to experience anything even approaching what could be called “unbelieveable danger.”

The United States ended its last military draft in 1973. For four decades, the men and women who have fought our wars and protected whatever was deemed our national interest have done so voluntarily. For every person like me who wonders if he could have had the courage to serve, there was at least one who actually did, and for many of them, that service ended or drastically altered their lives.

Among you are 516 current IU students who served. Before you boot up “Call of Duty” today, acknowledge those who answered it in a very real sense. I’m proud and privileged to know two of them.

Randall Frykberg
Randall Frykberg is an attorney and the Director of Student Legal Services at IU. His only combat experience was on the Atari 2600 battlefield between 1980 and 1985.

Thirsty Thursday Tailgate Tips

August 29, 2013Uncategorized1 Comment

I don’t remember September 15, 2012.  Based on news reports issued the next day, neither do many of you.

While I forgot the fact that IU lost a thriller that night to Ball State, what many SLS clients forgot was that it was a remarkable display of early-season tailgating skills.  Or lack thereof.  Of the 363 people who were busted by Indiana’s Excise Police over six football weekends last year, a stunning 188 of them were pinched over that weekend.  More than half of the party fouls, as defined by the jorts-clad, mustached Excise Brigade, occurred on the same football weekend.

IU opens the tailgate season tonight.  It opens the football season as well, but after four autumns spent as the student body’s honcho attorney, I know that the off-field tradition trumps the on-field product for most students.

Tonight’s opener against Indiana State has many of the hallmarks of last September 15.  IU is playing an in-state rival, drawing the party posse from just down the road in Terrible Hole.  The night will be warm, as early-season games tend to be, making it ideal for the thirsty and tank-topped community to linger outside.  Finally, it’s a night game, so the bodies of the student body will have had extra hours to marinate in a potent mix of sunshine and alcohol before game time, not that many will know when game time actually is.

Even the Executive Associate Athletic Director shouted out to “morning tailgaters” via Twitter this morning, adding that the lots would open at 2 pm.  Anyone who tries to downplay the “we never lose a tailgate” culture at IU is delusional.

Earlier this week, Athletic Director Glass noted that the Red Lot was a “responsible tailgate area.” Well, it wasn’t on September 15, 2012.  Excise clearly deemed 188 people as exhibiting less-than-ideal levels of responsibility.  If each of those people was offered and opted for pretrial diversion, the total haul for the prosecutor’s office that weekend was about $80,000 out of your pockets.

Your lawyers will help you manage some of the consequences of your behavior if tonight resembles last September 15.  However, even the best lawyers in the world can’t do much when you are arrested while unconscious, belligerent, or otherwise overcome with school spirit.  As an introduction to the law of tailgating, here are a few myths, debunked by cold reality:

Myth 1:  The Tailgate Lots Are an Enchanted and Law-Free Land:  Many students think that state and local police have “decriminalized” the tailgate lots, knowing that they could never nab every wayward youth.  This is utterly and totally false.  All laws regarding underage drinking, providing booze to minors, and public intoxication are very much in force tonight.  You are not in a bubble.  In fact, as I’ve written before, and will soon repost, you are really just fish in a barrel.  Police can and do ticket the tailgate fields, if only because it is just so easy to do.  Each ticket that results in diversion will cost you roughly $450, and the local prosecutor takes more than $150 of that to fund the office.  Unlike even Little 500, tailgates serve only to cluster illegal behavior all in the same spot.  It’s a combination of high potential revenue coupled with not having to walk too much.  Police love both of those facts.

Myth 2:  Police Only Arrest People Causing Major Problems:  Police have contributed to this fiction by saying “we only bust you when you’re really out of hand.”  Hardly.  While I am sincerely grateful when the cops apprehend someone drinking himself into a hospital bed, the vast majority of arrestees aren’t in danger or creating a major disturbance.  At SLS, we have seen students busted while crying, peeing (its own crime), walking, talking, and holding a mom’s beer while she used the port-a-potty.  If you’re breaking the law, and especially if you admit to a police officer’s face that you’re breaking the law, your tailgate will continue with Court on Monday.

Myth 3:  Police are Mainly Present to Protect Your Safety:  Again, this is perpetuated by the police themselves when they give their “Aw, shucks, we only want you to have a safe time” speeches.  Don’t get me wrong, the police have a crappy job on tailgate weekends—they deal with you when you’re throwing up, weepy, hollering slurred words, prone to flee, and altogether sloppy.  However, after a few hours of that crappy duty, they show their appreciation the only way they know how—by writing you citations or giving you a ride to jail.

Myth 4:  If I Cooperate, I’ll Get a Warning:  Police will ask you to cooperate with them, admit you’re drunk, tell them what you’re drinking, ask you to give a breath sample (you can generally refuse one).  They do this not to become friends, but because it makes their job so much easier.  A warning from a police officer is like finding a $100 bill on the street.  If it happens, cherish it, because it almost never does.

Myth 5:  You Have No Right to Refuse a Search or Refuse to Answer Questions Because You’re On IU Property:  This is the online-dating profile of police statements.  They may say something, but that doesn’t make it true.  You have all of your constitutional protections while in the tailgate lots.  A police officer may only stop you with a reasonable suspicion that you’re breaking a law.  You may decline a request to search you, including a breathalyzer, and you may politely decline to answer questions.

Enjoy a festive, but sensible, tailgate season-opener.  Next year, your lawyers hope that August 29, 2013 was a wholly forgettable day, and that the office was as quiet as a library floor the Monday after.

Randall Frykberg

Randall Frykberg is an attorney and the Director of Student Legal Services at IU.  He hopes that Fred Glass’ statement that the “responsible” tailgaters gather at the Red Lot is true.  He also hopes there is a Santa Claus. 

Does Lifeline Come Up Short?

August 27, 2013Uncategorized1 Comment

I admire anyone who tries to turn a tragic event into a teachable moment. When the tragic event is the untimely death of a 19 year old newly arrived on IU’s campus, that can be a tall order.

Still, while some internet pundits seized upon the death of Rachael Fiege on Saturday as a chance to dismiss IU students as bumbling participants in a campus-wide kegstand, others sought to educate her peers about an important, if misunderstood, legal protection:  Indiana’s “Lifeline” Law.

A few things about Ms. Fiege’s death are clear: she fell down stairs after 1 am on Friday morning, there was alcohol present where she was found, she was underage, and the people looking after her put her to bed rather than calling for medical help.  When they summoned help about seven hours later, Rachael was no longer responsive.

Some snapped to judgment: “If they had only known about Lifeline, they’d have called for help.”  Initial reports, however, indicated that people monitoring Ms. Fiege were aware of the year-old law.  They apparently underestimated how serious Ms. Fiege’s injury actually was.

Still, even a mistaken assumption that Rachael Fiege died because people don’t know about Lifeline doesn’t mean that everyone knows about Lifeline.  Students need to know it exists, who it protects,  and, should they wish to urge changes to the law, who it curiously DECLINES to protect.

Here’s a quick summary of the Lifeline Law:

1.         Who Lifeline Protects:  Lifeline protects anyone who requests emergency medical assistance, or cooperates with another who does so, provided the request for help was made on behalf of someone who reasonably appeared to need help because he or she had consumed too much alcohol.

            Why the requirement that the person “reasonably” appears to need assistance?  Clearly, Indiana lawmakers don’t want you making a sham call for help when the police have already started up your walkway.

2.         Is An Anonymous Call Sufficient? Nope.  Merely calling the police or EMTs and running is insufficient to earn Lifeline’s protection.  You must provide your full name to police, provide any other “relevant” information they require, you must stay on the scene with the victim, and you must “cooperate” with emergency personnel, providing information like how much the victim has had to drink.

3.         What Are You Protected Against?  If you comply with the terms of the Lifeline statute, you may not be prosecuted for underage drinking/transporting or for public intoxication.

4.         What Else Could I have to Worry About?  Well, while the Lifeline law covers the two most-common alcohol offenses facing college students, it leaves several potential offenses off the table.  The Lifeline offers no protection against drunk-driving charges, fake ID possession, furnishing alcohol to minors, or illegal activities that often accompany excessive drinking, like fighting or public nudity.  It also leaves some notable gaps that need filling.

5.         Gaps?  How big are these gaps?  I’m not going to make a joke about the gaps being big enough to drive a beer truck through.  The gaps in Lifeline are serious, and they could certainly cost the type of lives the law is concerned with saving.

            Lifeline has a noble purpose:  Stated plainly, it exists to keep your fellow partiers from having to make a choice between protecting your life and protecting their own asses.  While we all wished we lived in a world wherein relative strangers would risk a minor criminal record to make sure you woke up the next morning, experience says otherwise.

            However, if lawmakers want to save lives, they were awfully choosy about which ones to save.  Some of the gaps make clear that some lives are more protected than others.

            (a)       Lifeline Only Covers Alcohol:  If you’re at a party and using drugs, and an acquaintance overdoses and meets with some physical peril, you can forget about the Lifeline.  Indiana draws a bold line between alcohol and drugs, including the Lifeline law.  To me, a law designed to save lives shouldn’t value a drunk’s life more than a drug-user’s life, but your legislators didn’t ask me.  Whether it’s moral judgment or political concerns over being seen as soft on drugs, the law treats alcohol differently.

            (b)       Lifeline Doesn’t Cover the Victim: Lifeline exists to save the life of someone who is in danger due to alcohol, so why does it not immunize the victim from prosecution? If you think the police would never ticket someone who is in physical peril for an alcohol offense, you’re sorely mistaken. Trust me, your lawyers see many people who awaken at Bloomington Hospital with a ticket from the officer who brought them there on the bedside table—a nice souvenir of a hard night.

            More importantly, Lifeline ignores the fact that sometimes concern for the victim’s future plans may make a friend hesitant to call for help.  Imagine the person struggling is an honors student at Kelley with a private scholarship and a job offer from Google (if he passes a background check!).  A bystander who knows the Lifeline law well might foolishly weigh the trouble that might be in store for the student against the potential risk to his or her health.  What is so maddening is that the Lifeline is supposed to make the decision to call for help easy.  It could do so by protecting the victim too.  But it doesn’t.  Lawmakers no doubt thought to do so would somehow “encourage” bad behavior, but misbehavior with one’s alcohol limits shouldn’t be punishable by death.

            As written, the Lifeline law would have provided partial, but not complete protection for those who were around Rachael Fiege after she fell.  First, the law would have applied only if Rachael needed medical help “due to alcohol consumption.”  We don’t know if Rachael’s predicament was attributable to alcohol.  If she was sober, or if her fall was unrelated to drinking, Lifeline would not apply.  Second, Lifeline’s glaring failure to cover the crime of furnishing alcohol to a minor will deter some students from making a potential life-saving call.  If one of Rachael’s fellow partiers bought her alcohol, Lifeline would not provide him or her with any extra incentive to call for help.  After all, he or she could still be cited for furnishing alcohol to a minor and that crime can be vastly more serious than underage drinking—it can even be a felony when someone like Rachael dies.

            I don’t dispute that the Lifeline law has a noble purpose.  I also don’t dispute that it can help save lives if it becomes widely known.  What I DO dispute is the piecemeal, sorta/kinda protections that the law provides.  Lawmakers could have created a wall of protection for people to do the right thing to protect one another in situations involving drugs or alcohol.  Rather than build that solid wall, legislators built it out of Swiss cheese.

            I hope that students do the right thing even without considering the Lifeline.  I also hope we’ll never lose an IU student because of the gaps in the Lifeline law. In a perfect world, no one would be mourning a lost 19 year old this week.  State law is rarely perfect, but Lifeline could be far closer than it is.

Randall Frykberg

Randall Frykberg is an Attorney and the Director of Student Legal Services at IU.

Welcome Week’s Unwelcome End

            I never got a chance to meet Rachael Fiege.

            I would have liked to.  I would have liked to give her dorm floor at Wright a snarky talk about the legal environment they were going to encounter in Bloomington.  I would have liked to review her comically one-sided apartment lease when she decided to move off-campus. I would have enjoyed going over a waiver for her as she signed up for club soccer, or explaining state licensing requirement for nursing, the career path she planned.

            I could say that about most any of the incoming freshman class.  Based on sheer numbers, I won’t get to meet the vast majority of those students.  They will graduate without ever crossing paths with their lawyers across from Dunn Meadow.

            Rachael Fiege won’t be among that lucky many, sadly.  She died yesterday morning, within hours of starting her official IU career.  She probably had her books bought, class schedule memorized, and some IU apparel ready to go. Now her family will have to suffer through packing those items.  Moving your child’s things out of Bloomington should occur four (or five) years after you first kiss her goodbye on campus. It shouldn’t happen just a few days afterwards.

            Rachael Fiege’s parents have been living the college parent’s nightmare since she went to the hospital Friday morning after falling down the stairs of someone else’s home. They had to make the agonized decision to discontinue life support after making the compassionate-but-agonizing decision to donate her organs so her death might help others live.

            I don’t know the circumstances of Rachael’s death. I wasn’t there.  Even people who were there may not know exactly what happened. I don’t know if she was drunk, stone sober, or somewhere in between. I don’t know if the bystanders who apparently decided she was well enough to go to bed after her fall rather than going to the hospital were existing friends or new acquaintances.  

            I don’t even know if I would have made a better decision in hindsight. Rachael was a nurse’s daughter, and she intended to be one herself.  It is the saddest of ironies that in a room full of IU students, new or seasoned, she might very well have been the person most in tune with the fact that, when dealing with a head injury, one should always be cautious and seek medical attention.

            Internet trolls have already castigated Rachael for drunken, reckless behavior.  The trolls, of course, weren’t there.  Sources have provided no basis for that assumption, other than to report that alcohol was present—that is, of course, as much a revelation as saying attendees were wearing shorts and tanks.  A Welcome Week party with alcohol? No great surprise.

            Those of us who have reached a certain age hope that Rachael Fiege’s death will inspire some weighty conversation about social conventions for IU students, maybe inspiring the dwindling number of students who still say “YOLO” to realize it is more than just a blanket cry for the party to last another hour.  The dark side of “YOLO” is, of course, that you only get the one shot at life. It ends, sometimes far too soon.

            A few comment-board aficionados have taken a more constructive tone, trying to find something we can all learn from Rachael Fiege’s tragic death.  They have highlighted Indiana’s “Lifeline” law, a valuable protection for some, if not a perfect protection for all.  Followers of @IUStudentLegal on Twitter know my thoughts on that law.  For those who don’t, my next Blawg will address it.

            We will also learn something about our so-called “duty of care” to one another. Lawyers recognize that “duty of care” has a very cold and steely legal meaning, though it sounds like an impetus for a group hug.  I will address that in the near future as well, as cases like Rachael’s and the continuing case regarding Lauren Spierer enlighten students on just how much (or how little) the law requires them to protect one another from harm.

            Our duty to care for one another goes beyond what my law books say, however. We owe one another more than the bare minimum.  For those of you just now sleeping off Welcome Week, you owe yourselves more as well.  You can treat IU as a path to great success and adventure, or you can treat it like a four-year sleep-away camp. I hope you’ll think of Rachael Fiege, and her parents, as you make choices that affect you, and one another.

            I was going to try and touch upon those topics in this Blawg post. In all honesty, I just can’t. The time for lessons will come soon, but it hasn’t come yet. Those of us who care about and work for IU’s student body know that you can feel a sense of heartbreak even for a stranger.

            I will miss you, Rachael Fiege, even though we never met.

Randall Frykberg

Randall Frykberg is an attorney and the Director of IU Student Legal Services

 

Righteous Rage, Revisited

The following is an encore presentation of the SLS Blawg, dated June 3, 2012

Anniversaries are usually festive occasions, often soaked in champagne or decorated with old photographs.

Other anniversaries are solemn, like the September 11 ten-year commemoration. They provide a chance to mourn and reunite a community in recalling a shared experience.

Today marks the two-year anniversary of Lauren Spierer’s disappearance from downtown Bloomington. This milestone feels like neither. It’s certainly a day for solemnity, but all of Bloomington, and almost certainly the Spierer family, remains uncertain, frustratingly in the dark about what happened in the dark early morning of June 3, 2011. How do you observe an anniversary of an unanswered question?

Faulkner told us that “The past is never dead. It’s not even past.” Those words aptly describe our reaction two years after Lauren vanished. The passage of 730 days has brought some 2,600 leads to the Bloomington Police, countless search hours, numerous events organized to state the obvious–that we remember Lauren Spierer. It has, however, brought no closure to the Spierer family. Lacking answers, their wounds must seem as fresh today as when they first received the call–the call which makes every parent shudder each time the phone rings after bedtime.

The IU community and Bloomington, with a few exceptions, can’t fathom that agony. For us, however, Lauren Spierer remains a constant presence, even as each search produced nary a trace of her. Still, the uncertainty surrounding her whereabouts and welfare ensures that she is constantly discussed. In her absence, she became the most widely known and recognizable member of IU’s population. Even after she is returned to her family, she will have provided the single most unifying event on this campus in recent memory. Forget Little 5, forget Commencement, even forget Watford-for-three. The defining moment for this generation of the IU family happened two years ago.

IU hosted a service of “remembrance” last year. When I heard the title, my first reaction was that the wording seemed wrong. “Remembrance” seems to inextricably imply the past-tense. Regardless of what happened to Lauren Spierer, she remains very much present on this campus and in this town. Until her family knows the truth, Lauren’s story will remain living and breathing at IU, even as her parents confess to have lost hope that she herself is living and breathing somewhere. Anywhere.

The tone of last year’s service showed that the overarching emotion attached to discussions of Lauren Spierer has drifted from a keep-your-chin-up sense of hope to a furrowed brow of unmistakable rage. Presiding Rabbi Sue Silberberg offered thanks and prayers, all while calling on the “selfish and cowardly” who have answers about the night of June 3, 2011 to come forward.

Robert and Charlene Spierer did not attend the campus service. On Friday morning, they appeared on NBC, decrying that those who accompanied Lauren in the night’s recreation “really did nothing to help her” and calling the failure of those involved to call for help or simply deliver her to her home “unconscionable.” Lauren remains a living presence for parents everywhere, especially those of IU students, and all likely nodded their heads as the Spierers painfully spoke their worst fears: is this really how the next generation treats its friends? As playmates to be cast aside when their welfare might conflict with self-interest?

The constant stream of social media posts, while perhaps laudable in its ability to cause Lauren’s name to pop up on computer screens across the globe, has brought about no breaks in the case. What it likely has done is shine a spotlight on those perceived to have useful information and their purported reluctance to share it. When the case does break, as it likely will eventually, the digital world will ensure that if anyone is shown to have kept silent in the past, he or she will never find a moment of quiet in the future. Scarlett letters had nothing on Facebook and Twitter. Google will not be kind to anyone found to have participated in or concealed whatever happened a year ago.

Whether it be by a drunken remark, a late-developing conscience or even a foolish Tweet, the Spierers will eventually get an answer. Whether Lauren was abducted, harmed, or slipped away, it was likely not part of criminal master plan. Private Investigator Bo Dietl, when not taking delight in referring to Hoosiers as “yokels,” noted that a New Yorker came forward and confessed to a homicide 12 years after the fact just last year. A conscience, even one suppressed and delayed by self-importance and money and shameless fealty, can be a powerful thing.

In the meantime, even if the Spierers lose hope, they will continue to search. Rage, especially righteous rage, is a powerful force. If evidence ever links Lauren’s peers to her disappearance, the community will join them in that rage. Writers and pundits would condemn an entire generation as sharing a drug-and-booze-fueled megalomania which swallowed collective compassion whole.

Over 30 years ago, the nation was briefly horrified when a high school boy murdered 14-year-old Marcy Renee Conrad in Northern California. While the capacity for youthful violence was bad enough, what horrified the nation was that perhaps a dozen other students knew about the crime, talked about it with the killer, and even accompanied him to see the body, but no one came forward to tell the police for more than two days. When asked why they didn’t alert authorities or anyone other than other school kids, most offered slight variations on one theme: we didn’t want to get in trouble.

No one yet knows—aside from those who may have been involved—whether Lauren Spierer met a violent end, or even an end at all. The Spierers, however, clearly think that the same cloud of silence that gathered in Milpitas, California in 1981 hangs over 2012 Bloomington. If they are right, the key differences—primarily that those they suspect to be keeping a callous silence are older, wiser, and expected to be more-humane than adolescents—would make this even more horrifying.

The other key difference? The disaffected youth of Milpitas, CA stayed silent for all of two days. The Spierers, I presume, will struggle through today and, sadly, wake up tomorrow to start Day 731 since they last knew the whereabouts of their beloved daughter.

Randall Frykberg
Randall Frykberg is an attorney and the Director of Student Legal Services at IU.

Little Lessons for Little 500

It’s Little 500 weekend again, still under the watchful eye of Indiana’s alcohol avengers, the Excise Police.  Last year, more than 350 of you were nabbed for minor drug and alcohol offenses.  Here is a re-purposing of an SLS Blawg from the start of the 2012-13 school year.  The tips for the tipsy still apply.

So, you know that Excise is here, looking for your beer, get used to it. The next logical question is how the hell are thousands of thirsty college students supposed to cope with them. Here are some tips to keep the mustached marauders at bay.

1. If You’re Underage, Don’t Drink: I’ll wait for the laughter to die down. The fact is, underage drinking is a remarkably easy crime on which to convict you. A prosecutor need only show that you are (1)possessing, drinking, or driving a car containing alcohol, and (2)you’re under 21. It’s like telling someone the only certain protection against an STI is abstinence: I don’t expect you to follow that rule, but it doesn’t change that it’s true.

2. If You Are Drunk, Keep it to Yourself: Indiana changed the Public Intoxication statute on July 1. If you’re drunk in a public place, the police may only stop you if you are a threat to someone else or yourself, you’re disturbing the peace, or you’re harassing others. A nice, quiet, smiling drunk who isn’t bothering anyone might make it home without a citation.

3. Underaged Folks, Never Go on Beer Runs: Excise cops love Kroger, and not just for the freshness of the donuts. SLS has seen a monumental spike in Excise busting minors who are helping pick out booze, visibly handing the buyer money for it, helping carry it to the car, or driving the alcohol home. If you disregard Tip 1, at least don’t go along for the ride.

4. Underaged Folks, Don’t Drive on Beer Runs: Underage transport continues to stupefy IU students and parents. We’ll say it again: It is a crime in Indiana for a minor to drive a car containing any alcohol, unless the alcohol is in possession of a parent riding along. It doesn’t matter that the alcohol is not open. It doesn’t matter if it’s in a 21-year-old’s lap. It doesn’t matter if it’s in the trunk. Sober drivers, you may be being responsible, but responsible people can still be criminals. Excise is hanging out at Big Red, watching for a driver who stays in the car. Guess whose party is over for the night?

5. If You Are a Sober Driver, Make Sure Your Car and Driving Are Flawless: Excise police love to stop full cars, but they need a reason to do so. We have seen multiple cases of “your license plate light is out” leading to a carload of alcohol tickets. This stop falls under the legal category of, in the original Latin “policio bullshitius,” or something a cop thought up to stop you. In South Bend, 12 lacrosse players were stopped and ticketed after Excise police claimed they saw one littering. Yes, Littering. If you are sober-driving, make sure your car works and that you follow traffic laws perfectly.

6. Shut the Hell Up: You should tell the police your name and always act polite and professional, but you have no obligation to answer questions. The mustached guy in the polo shirt with the badge isn’t a priest, even if he looks vaguely like one you knew as a kid. You need not treat a traffic stop as confession. It will never help you. It will often hurt you. If asked if you’ve been drinking or what is in your cup, you may politely decline to answer questions. If your lawyer were present when the police stopped you, the first thing she would say is “shut your mouth.”

7. An Exception to Shut the Hell Up: You may, and should, ask the police if you are free to go. Nicely. Without resembling the Latin animal “fratboyicus assholio.”The cops may not hold and question you indefinitely. If they have probable cause that you have committed a crime, they may arrest you. If they don’t, they have to let you go. Ask and ye may sometimes receive permission to be on your way.

8. If the Police Ask to Search You or Take a Breathalyzer, Ask to See a Search Warrant: Drivers are generally required to give breath samples. Passengers and pedestrians aren’t. If the police want to test your breath or blood on the scene, or go through your personal belongings, they need a warrant to do so. Ask them to get one. They may not. If they ask to search your car or your purse or pockets, say no. If the police choose to ask a judge for a warrant at 3 am, let them. At least you have bought yourself some time.

9. If You’re Not Guilty, Make a Prosecutor Prove You Are: When they bust you for an alcohol offense, most cops will say “you’ll just take diversion like paying a ticket.” A drinking ticket is more serious than a speeding ticket, and because of that, a prosecutor must prove you guilty beyond a reasonable doubt. Excise police will sometimes bust students without proof that an individual did anything wrong, just because they were in a car or a group with people who were obviously consuming alcohol. A prosecutor must prove more than the fact you were hanging out with drunks. If you weren’t holding alcohol, weren’t visibly drunk, refused to give a breath sample without a warrant, and didn’t confess an offense, you may have a good case. Consider making the prosecutor prove you’re guilty. Diversion is a good option for most SLS clients, but not all of them. When prosecutors charge you $425 for diversion and keep about $150 of it themselves, they’ll keep casting a wide net, until someone makes them prove you’re guilty.

SLS is here for you. Follow the rules above, and you may not even need us.

Randall Frykberg

Randall Frykberg is an attorney and the Director of Student Legal Services at IU. His case of “fratboyicus assholio” was cured through a combination of natural herbs and prayer.

The Wages of Little 500 Sin–2013 Edition

The Monroe County Prosecutor’s Office has posted the guidelines for its “cattle call” Sunday court proceedings for those of you cited for minor alcohol offenses over this weekend.

In case you think Excise Police are really imaginary creatures, like unicorns, chupacabra, or a fraternity member truly interested in “just cuddling,” they aren’t.  Last year, Excise set a new record with 256 arrests on Little 500 Weekend and 95 the weekend before the race.

Excise has been here in force since early last year, when they announced the Intensified College Enforcement (ICE) Program. They will have help from local police and law enforcement from surrounding areas, all working extra hours and braving carpal tunnel syndrome in their ticket-writing hands. Trust me, there will be more mustached men on Bloomington streets than if a Village People convention came to town.

The Prosecutor’s Office won’t be able to handle these cases individually. If every student nabbed for alcohol or minor drug offenses asked for a trial on those charges, the judicial system in Monroe County would screech to a halt.  This will always be true, though few will test the theory. Last fall, the County could scarcely process all the tailgating citations, pushing some cases back for months and forgetting others altogether. This is what happens when a small city’s courts can’t keep up with over-eager police.  It would work to students’ benefit if they banded together. They never will.

Instead, Little 500 offenders will stream through the Courthouse on Sunday. They will be told about the Pretrial Diversion Program, offered the chance to accept its terms, and directed to begin paying back their debts to society just as your bodies are paying you back for what you made them go through over the weekend.

If you opt to take Pretrial Diversion, the Prosecutor agrees to not actively prosecute you for a year and then to dismiss the charge if you fulfill certain conditions. Those conditions include: (1)Paying $425 if you have cash (loose change discouraged), or $440.50 if you offer plastic; (2) attending a four-hour alcohol class on Sunday evening; (3) picking up trash for half the day on Sunday; and (4) keeping a clean criminal record for the next year.

The assembly line nature of Sunday will minimize the opportunity for students to think matters over. It will also encourage students to take Diversion. For most, notably the clearly guilty, this is wise. However, Excise officers and a few other police have certainly raised SLS eyebrows this semester by stopping students for sketchy or legally shaky reasons.

A number of students will take Diversion despite having valid arguments as to their innocence. Others will have been stopped or searched by the police without a legal basis to do so, and those circumstances might very well lead to charges being dropped or students being acquitted of crimes.

Alcohol enforcement has become a volume industry. That applies especially in Monroe County, where a full 37 percent of the Prosecutor’s budget comes from the $425 cash/$440.50 credit (come on, credit!) payments made on Sunday.

It may be a cynic’s argument, but that hardly makes it untrue: when 37 cents of each dollar of the Prosecutor’s wages come from the wages of sin, collecting those wages becomes pretty damn important.  Based on last year’s record numbers, your Prosecutor’s office probably made $150,000 off of pretrial diversion for Little 500 offenders alone! That’s $150,000 for a week’s work.

For the past two years, SLS has sought to have a presence at the Sunday student cattle drive, even offering to bring what few donuts are left in town after Excise officers depart. Each time, we’ve been told space will simply not permit students to have a free attorney present. Sadly, that space crunch has still not inspired the weight-loss effort I promised last year.  I blame the donuts.

Of course, there is plenty of room in the Justice Building. The Prosecutor’s Office simply doesn’t want you to mess with the system by talking to a lawyer. Why would it, when the assembly line pays so well?

You may decline Diversion if you think you have a defense or if the police overstepped in ticketing you. You may consult with a lawyer of your choosing or see SLS. You may ask for a trial and require the state to prove you guilty beyond a reasonable doubt. Trust me, if every alcohol offender cited over the weekend asked for a trial, the system in Monroe County would rumble like IU On Strike’s wettest dream.

Most of you will take Diversion, and for most of those people, it’s probably a good deal. If you stay clean and complete the work–most of it occurring Sunday–you’ll keep a conviction-free criminal record. That will help when you need a job or a grad school acceptance.

For those who are headed to Sunday’s herding, be aware of a few things:

  • The Justice Building is at 301 N. College. Bloomington has a lovely courthouse in its lovely square. If you go to that courthouse on Sunday, you’ll find that, oddly enough, no one holds court there.
  • The Prosecutor notes that it is IMPERATIVE that you come to Court at 8:30 am. If you don’t, you are subject to arrest.  Props to the Prosecutor for using IMPERATIVE–English majors CAN find work after all.
  • If you accept Diversion, your day is spoken for. You will go from court to road crew to alcohol class. Plan to say goodbye to your leaving-town besties/boyfriend-since-midnight early that morning.
  • If you drove while intoxicated, possessed drugs other than a small amount of marijuana, broke into the wrong house to sleep it off, or did anything violent, diversion is NOT in your future. Don’t count on things going away on Sunday.
  • Even as you rest your weary bods Sunday night, your debt is not fully paid. If you re-offend in the next year, all that work and cash (or credit!) will be for naught. Second chances at Diversion are exceedingly rare. If you go to the work and expense of taking Diversion, see it through.

And your SLS lawyers and interns will be here Monday, looking maddeningly chipper, to answer any questions.

Randall Frykberg

Randall Frykberg is an attorney and the Director of Student Legal Services at IU. He will honk in support of you as you pick up trash on Sunday afternoon, though he is unlikely to offer you a donut.

Fish in a Muddy Barrel

September 1, 2012Uncategorized2 Comments

Today is the first day of Tailgate Season, a six-game endurance test pitting the irresistible force against the immovable object.

Taking the field from one tunnel one tunnel, clad in their odd mix of plaid shorts, Daisy Dukes, and coordinating Kilroy’s tank tops, we have the traditional power, the IU student body.

On the other, wearing their trademark jean shorts and not-quite-ironic mustaches, we have the Indiana Excise Police. Buoyed by an infusion of state cash and improved recruiting, the Excise squad is ready to compete on IU’s home turf this year.

The field, of course, has no yard lines, hashmarks or end zones. It’s the grassy Red Lot which, depending on weather, may be muddier than a catfish theme park by game time.

For those unclear on what “game time” means, that means when all the old folks with the RVs shuffle over to that funny bowl-shaped structure to the North and the rest of you think of what to do until it’s time to hit Sports for the early-morning meat-and-grind party.

Fall weekends in Bloomington are steeped in tradition, but that tradition has nothing to do with whatever is going on at the stadium causing all those Wisconsin/Ohio State/Michigan fans to line up to enter our character-free, unfriendly concrete confines. The new tradition here is competitive drinking, pure and simple. IU students do it and do it well, sometimes with their parents cheering them on and reminiscing about the good ol’ days they can’t remember either.

Excise has shown up to play in the Red Lot scrimmage over the past few years, but they have typically served as fodder for a blowout, overrun by the superior talent and skill of the Hoosier Hooch Hoisters. You can listen to the older fans gather and marvel at the drinking talent IU has amassed each year: “Those Carmel kids, they look like they were BORN with Solo cups in their hands.”

However, the Excise Police have been more competitive in recent years. In 2009, they managed only 17 arrests at the home opener. By 2010, they had more than doubled that to 35. Last year, with a night game against Virginia providing the background for the Consumption Classic, Excise put 61 arrests on the board. Tonight’s game is also under the lights, meaning the tank-topped brigade have all day to marinate in their own juices.

Then, last February, Excise took a big step . They launched ICE, Intensified College Enforcement, targeting IU as their red-letter rival. In the junior varsity game held over Welcome Week, Excise hung 258 arrests on the hapless IU freshmen. Other campuses like Notre Dame and Purdue showed greater talent on defense, holding Excise to the low double figures.

Today is the true test, of course. Excise gave some locker room material yesterday, announcing they were bringing three Southern Indiana Divisions into town to ensure they had fresh players. Presumably those players will be decked out in weather-appropriate windbreakers and with plenty of mustache wax available to repel the approaching monsoon.

IU is trying to keep the score down, at least a wee bit. “Handles,” or half-gallon bottles of cheap, paint-thinner-quality booze, are banned, meaning the proud members of IU’s fraternity community can still baptize lucky  ladies with liquid refreshment, but they’ll have to refill their supplies more often. Honestly, it’s probably the equivalent of handing out cocktail umbrellas as protection against an approaching hurricane.

Your lawyers have already given you some handy tips for dealing with the visiting ICE squad. Check the last Blawg posting for a refresher. There are a couple of points that should be added to the tailgate playbook, however:

1. The Red Lot is NOT a Law-Free Wonderland: Many revelers think that the tailgate field is shrouded by an invisible bubble through which no police may pass. That is 180 degrees from the truth. The Red Lot is, in fact, a barrel containing many slow-swimming, liquor-soaked fish. Excise need only decide who to reel in. The drinking laws all apply, and students are routinely arrested for underage consumption and public intoxication at tailgates. The only unique thing about tailgaters is that you are closely packed together in your blitzed formation. Add to that your propensity to want the world to know how blotto you are, and it makes for a very easy day for the police.

2. Your Mom and Dad Don’t Make It OK: Every year, parents get busted for furnishing booze at tailgates. Every year, I see a student who thought he wouldn’t be cited for underage drinking because his drinking buddy was his dad. Most years, I see a student arrested for “just holding” a cup while mom uses the porta-potty. That kid is still illegally possessing alcohol. If you’re not old enough for the family bonding over a keg-stand, skip it.

3. Speaking of Port-a-Potties, Use Them: Nothing draws the attention of the police element like the forbidden joy of peeing al fresco. Alcohol reduces many inhibitions, including, apparently, the one that reminds us that no one wants to celebrate our bladders sharing their contents with the lawn. Last year’s best tailgate arrest involved a female student ordered to stop peeing and pull her shorts up. She refused, apparently being the type of student who finishes what she starts, and she was arrested. If given the chance to use those young muscles and dam the stream, please do so.

4. It’s a Long Season: Too many of you go too hard, too long, too fast on opening weekend. Pace yourself. There are five more home weekends to come. Hell, those fans who think Coach Wilson rides a unicorn to practice might expect a bowl appearance to boot. Honestly, a goodly number of you take your health into your hands going all day with the elbow-bending drills. I rarely root for the visiting excise squad, but when you’re in trouble, crying, incoherent, lost, I want you in jail. Because it beats the hospital.

Though I don’t have an RV, I’m one of the old coots now who will actually watch the game and then wait for the Students vs. Excise score on Monday. I’ll hope for a low-scoring, defensive struggle, even as all factors point to a high-scoring shoot-out between ICE-fueled Excise and hundreds of tank-topped fish in a barrel.

Randall Frykberg

Randall Frykberg is an Attorney and the Director of Student Legal Services at IU. If you’d be so kind as to hold his Solo cup, he needs to see a man about a horse.

Learning to Skate in the Age of ICE

In yesterday’s Blawg, I told you what 258 of you already know: Excise Police are continuing the ICE program in Bloomington, directing its crack squad of plainclothes poobahs to shine a bright light on some of the dimmer bulbs of the B-town party scene.

So, you know that Excise is here, looking for your beer, get used to it. The next logical question is how the hell are thousands of thirsty college students supposed to cope with them. Here are some tips to keep the mustached marauders at bay.

1. If You’re Underage, Don’t Drink: I’ll wait for the laughter to die down. The fact is, underage drinking is a remarkably easy crime on which to convict you. A prosecutor need only show that you are (1)possessing, drinking, or driving a car containing alcohol, and (2)you’re under 21. It’s like telling someone the only certain protection against an STI is abstinence: I don’t expect you to follow that rule, but it doesn’t change that it’s true.

2. If You Are Drunk, Keep it to Yourself: Indiana changed the Public Intoxication statute on July 1. If you’re drunk in a public place, the police may only stop you if you are a threat to someone else or yourself, you’re disturbing the peace, or you’re harassing others. A nice, quiet, smiling drunk who isn’t bothering anyone might make it home without a citation.

3. Underaged Folks, Never Go on Beer Runs: Excise cops love Kroger, and not just for the freshness of the donuts. SLS has seen a monumental spike in Excise busting minors who are helping pick out booze, visibly handing the buyer money for it, helping carry it to the car, or driving the alcohol home. If you disregard Tip 1, at least don’t go along for the ride.

4. Underaged Folks, Don’t Drive on Beer Runs: Underage transport continues to stupefy IU students and parents. We’ll say it again: It is a crime in Indiana for a minor to drive a car containing any alcohol, unless the alcohol is in possession of a parent riding along. It doesn’t matter that the alcohol is not open. It doesn’t matter if it’s in a 21-year-old’s lap. It doesn’t matter if it’s in the trunk. Sober drivers, you may be being responsible, but responsible people can still be criminals. Excise is hanging out at Big Red, watching for a driver who stays in the car. Guess whose party is over for the night?

5. If You Are a Sober Driver, Make Sure Your Car and Driving Are Flawless: Excise police love to stop full cars, but they need a reason to do so. We have seen multiple cases of “your license plate light is out” leading to a carload of alcohol tickets. This stop falls under the legal category of, in the original Latin “policio bullshitius,” or something a cop thought up to stop you. In South Bend, 12 lacrosse players were stopped and ticketed after Excise police claimed they saw one littering. Yes, Littering. If you are sober-driving, make sure your car works and that you follow traffic laws perfectly.

6. Shut the Hell Up: You should tell the police your name and always act polite and professional, but you have no obligation to answer questions. The mustached guy in the polo shirt with the badge isn’t a priest, even if he looks vaguely like one you knew as a kid. You need not treat a traffic stop as confession. It will never help you. It will often hurt you. If asked if you’ve been drinking or what is in your cup, you may politely decline to answer questions. If your lawyer were present when the police stopped you, the first thing she would say is “shut your mouth.”

7. An Exception to Shut the Hell Up: You may, and should, ask the police if you are free to go. Nicely. Without resembling the Latin animal “fratboyicus assholio.”The cops may not hold and question you indefinitely. If they have probable cause that you have committed a crime, they may arrest you. If they don’t, they have to let you go. Ask and ye may sometimes receive permission to be on your way.

8. If the Police Ask to Search You or Take a Breathalyzer, Ask to See a Search Warrant: Drivers are generally required to give breath samples. Passengers and pedestrians aren’t. If the police want to test your breath or blood on the scene, or go through your personal belongings, they need a warrant to do so. Ask them to get one. They may not. If they ask to search your car or your purse or pockets, say no. If the police choose to ask a judge for a warrant at 3 am, let them. At least you have bought yourself some time.

9. If You’re Not Guilty, Make a Prosecutor Prove You Are: When they bust you for an alcohol offense, most cops will say “you’ll just take diversion like paying a ticket.” A drinking ticket is more serious than a speeding ticket, and because of that, a prosecutor must prove you guilty beyond a reasonable doubt. Excise police will sometimes bust students without proof that an individual did anything wrong, just because they were in a car or a group with people who were obviously consuming alcohol. A prosecutor must prove more than the fact you were hanging out with drunks. If you weren’t holding alcohol, weren’t visibly drunk, refused to give a breath sample without a warrant, and didn’t confess an offense, you may have a good case. Consider making the prosecutor prove you’re guilty. Diversion is a good option for most SLS clients, but not all of them. When prosecutors charge you $425 for diversion and keep about $150 of it themselves, they’ll keep casting a wide net, until someone makes them prove you’re guilty.

SLS is here for you. Follow the rules above, and you may not even need us.

Randall Frykberg

Randall Frykberg is an attorney and the Director of Student Legal Services at IU. His case of “fratboyicus assholio” was cured through a combination of natural herbs and prayer.

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