California's Megan's Law Online Database

I am generally opposed to the notion of destroying a person's life forever due to a criminal conviction (that is, a conviction for which the person will eventually be released and expected to be a contributing member of society afterwards), and I oppose mandatory lifetime registration requirements. That being said, California has now posted this information online, and damn if I didn't go searching online to see if any of my neighbors are sex offenders (I do have 2 little boys, after all). Am I a major hypocrite? Maybe so, I don't know what I would've done had I found a neighbor on the site, I don't think that there's much I could do. Perhaps I'd try to use some connections to find out what his prior was really about (sorry to those who are offended by my use of the word "he," but in my experience, and also on the site, I found next to no females there). If it wasn't serious (as many are not), I would not stress out. But, I wonder to myself, what would I do if I found out that 15 years ago my next door neighbor had his 10th conviction for molesting and kidnapping small boys, and he snuck in just before all the heavy sentences for this really kicked in in 1994? Are my views as a parent different than my views as a human being, as a Public Defender?

I did have fun looking up some of my old clients to see if they were in there. I guess it's good news for the makers of the site that, except for one, they were all in there. This means that they may have actually done a good job of putting the site together. I was surprised at how few people I had on the list. I have my own computerized records of every case I've handled for 7 years. In that time, I think I've only pled about 3 people to that list (I've never lost a trial for sex charges, I've done a couple, but none were convicted of sex offenses, and some walked). I have other clients with these offenses in their past who are in the database also.

An interesting side-note to this is that the database is off-limits to sex offenders. How they manage to enforce this, and why it is against the law, is beyond me. Perhaps they don't want these people commiserating, on the off chance that one pedophile wants to hang with another one, this way they can't look each other up. Of course, most of these people are required (I'm betting they don't typically go voluntarily) to go to sexual deviancy classes, so they probably meet plenty of others that way instead.

A couple of different sites have some discussions about the illegality aspect of this site, with some interesting back and forth. J Soglin of Criminal Appeal has a post on it here, and Professor Douglas Berman at Ohio State University has a follow-up on his sentencing blog.

The Volokh Conspiracy also has some discussion of the subject (I couldn't link to the specific post for some reason, so you have to scroll down a few posts to find it).

Peterson Gets Death

Everyone I know has been asking me what was going to happen with Peterson (old news now, I guess). I wrote here how tough it would be for Peterson in penalty, but was telling everyone at home and at work that he's was going to get death. For those of us in the practice, it was hard to imagine, because, at least in big California counties, this would never be a death case in the first place. Those people underestimated small-town politics and the power of the media.

It'll take a while, that's for sure, and maybe he'll get some action on the bumping of jurors, but I doubt it. I think this case is going to stick.

How Have I missed this Blog

Alright, I have to admit I loved the movie Blond Justice (I even liked the sequel). So, how have I never realized that there is a Blond Justice blog? Written by a PD of all people? It's worth a look. Not as, ahem, serious, as mine (like I should be proud of growing old and stogy?), but a great one anyways. Reminds me of myself and my friends when we first started with the office, before we got bogged down with things like wives, kids, houses, schools, and all the other things that turn you from fun person to boring old person.

Enjoy the site.

Public Defender Dude Again, and Forever!!!

I'm very glad I didn't get specific about who I was going to go into private practice with on this board, since I have to now announce that he just reneged on our agreement and backed out. I had already given my notice with the office that I was leaving, had begun writing up a partnership agreement, and doing all other things required of one going into business with someone else when he called me up and told me he'd had a change of heart.

I was originally going to do this in the middle of October, but for reasons of benefits I decided to stick around until January. Thank goodness I didn't do this in October as originally planned, or I'd be screwed right now. My office was more than happy to let me rescind my resignation, and so I'm back in my old, familiar, and very happy situation as a lifer.

I feel like a gang member - PD 4 Life, baby!!!

Update on an Old Trial of Mine

Last year I did a long and emotionally and physically draining special circumstance murder trial (the prosecution chose not to seek death on it). Well, afterwards (the case hung 7-5 for guilty) I had to declare a conflict of interest due to new evidence that came forward which would involve us implicating another one of our clients.

That case just went back to trial with a new lawyer, using different tactics. The jury is still out on the case, and have been now for 2 days. I had my jury out for almost a week, so I guess a long deliberation is not surprising. Check out my November 2003 and October 2003 archives for my posts on the subject.

The case wore me out, and I vowed to my co-workers that I would not do another trial for a year (something nearly unthinkable, and that I've never even come close to accomplishing in the past). Well, jury hung 11/4/03, and I have still not done another trial, with none really on the horizon. I don't have any explanation for this, it's not like I'm avoiding them, I almost went a couple of times, and in a couple of cases where I wouldn't talk dispo with the DA because the case was so good were dismissed. Now, I think I need to get back into it since I've probably become rusty. What is voir dire anyways?

Is the US Government Becoming Oppressive?

I'm not generally alarmist about creeping facism and stifling of freedoms in this country. This means that I realize that it could happen, and I'm vigilant against giving the government too much power because I recognize that they will generally us it. However, I don't really think that we are as bad as countries like Iran or Syria, and that we don't face any danger of becoming that way. Clearly, our international image could come to look that way, but generally, I think that is very much hyperbole. I don't think anyone, objectively speaking, could compare us with a society like Iran's or Syria's.

That being said, we are supposed to be better, much better, and even facing comparisons with countries like that is troublesome. We should be compared with the best, not the worst. The fact that we're better than the worst is not comforting.

And now, our government is getting even worse. Today's LA Times speaks about some of the hearings in Federal Court where "Justice" Department lawyers have contended that even a little old lady in Switzerland who gives money to a charity, where some of that money is, unbeknownst to her, siphoned off to terrorists, may be abducted, detained and kept indefinitely at Guantanamo Bay.

Sayeth the exalted government:

"Someone's intention is clearly not a factor that would disable detention." It would be up to a newly established military review panel to decide whether to believe her and release her.

This is where our government is now? More from the article:

[Judge] Green asked if a hypothetical resident of England who taught English to the son of an Al Qaeda leader could be detained. Boyle said he could because "Al Qaeda could be trying to learn English to stage attacks there," and he compared that aid to "those shipping bullets to the front." Some detainees have been picked up in Bosnia and others in Africa.

Absolutely incredible!!! Anyone's a suspect, everyone's guilty, all the world's a crook, it's only up to our "military review boards" to determine whether they escape a life of detention at Guantanamo Bay without the review of any civilian court.

Maybe I'm lacking enough alarmism. This is truly evil.

Great Moments in the Life of a Public Defender

Have I mentioned before that I love my job? Only 10,000 times? Well, let me mention it again. So why am I leaving it in January? God only knows, I mean, I guess I have to try this new gig out to see if I like going private, and I'd be lying if I said that money didn't matter at all to me, so I guess I'll hope that I don't lose any of the great social and personal aspects of my job when I leave the office. But, I digress.

I'm meeting with the son of a client who's brought some stuff by for his dad's case. Client is facing 13 years for hitting his wife, his grown son is trying to help his dad out (the victim is his step-mom, but she can't be more than 10 years older than him). I'm in the office talking with the son, and while I'm there I get about 4 other calls related to work. A couple of DAs, and we discuss our cases, I posture to them how I'm going to kick their butts in trial if they don't back down, stuff like that. I also have a couple of clients or doctors call and I discuss the case. The client's son is still sitting there, watching the whole thing, mouth agape.

I finish about 20 minutes of calls and the client's son (a really cool guy who I just enjoyed hanging around with because I he was so interesting to talk to) says "you have the absolutely best job ever!"

I sort of grinned, and said to him, I really do. Afterwards I was thinking about it, and I don't think this is PD or private speaking, but I really do have a great job. It is so cool to have this responsibility given to me where people entrust me with their lives, and I can fight for them without concern for anything except helping them out (I guess that's sort of limited to PD life, as I'm going to have to be more concerned about money when I'm private). It's just a great job.

Civil lawyers out there who hate your jobs, take heed. This is the best job in the world.

The Drug Scourge - Moral or Practical Problem?

From Catastrophic Victory:

For those of you who have HBO, and are addicted like me to just about every show they make, you are probably also fans of The Wire. I think this is just about the greatest show I've ever watched. Generally, it follows a group of Baltimore police officers (they were all at some time in the same unit, but have scattered over time), and a few different drug gangs in Baltimore.

In the present series, a Major who is in charge of the western district decided that he'd had enough of the idiotic cyle of policing and violence that he'd dealt with in trying to stop the drug trade in his district, a battle he realized he was losing. After having one more series of citizen complaints about the whole area being controlled by drug dealers who prevent people from leaving their homes safely, he finally decided on a radical solution. He found 3 neighborhoods in his district that were uninhabited, and he pushed all of the dealers in his district into those 3 neighborhoods (the local kids called it Hamsterdam, when one of the officers pushing them there mentioned Amsterdam and the dealers garbled it). The result, that area turned into hell, with every ill you could imagine in the inner city bunched up into one area with the police turning a blind eye to all except crimes of violence. The 95% of the rest of the district that he pushed them out of? Paradise by comparison. Citizens are writing letters thanking them, crime's dropping by 15% in just weeks, people are able to go outside in the middle of the day, everything is just peachy.

This got me thinking, I've been in favor of legalizing drugs for a long time, but here's the question that The Wire raised for me. Do most people believe that drug use is a moral or practical problem. Here's the difference. Murder, rape, robbery, theft, these are all moral problems. Whether or not you personally are victimized, all of society is hurt by those actions, and they are clearly a moral wrong any way you look at it. Therefore, if someone only murders, or rapes, or beats their wife in the privacy of their own home, it is still a moral problem.

What about drug use? Is that a moral problem, in that someone smoking a joint or shooting up in the privacy of their own home (and not doing anything else wrong in their life), or is that only a practical problem, in that practically, it leads to future moral problems? You see, if you ask the question about murder, one would never say we can't allow murder because of the practical implications: the practical implications are that a moral wrong is occurring that destroys the fabric of society. But, drug use? Can we say that the use itself is the evil society is trying to prevent, or it leads to evils we wish to prevent, like murder, rape, etc....?

If drug use is a moral problem, then there is only one solution, we must fight it like we fight other true evils like rape. But, if it is a practical problem, then it is like
traffic, or pollution, or drinking (and driving, which is drinking's big attendant problem). If it is a practical problem, shouldn't we find a practical solution, rather than a zero sum game solution that involves either winning completely, or losing completely? What if we compromised so as to reduce harm as much as possible?

If drug use is a practical problem, then the solution would be to try and reduce the problem as much as possible, not to go to war. Methods of reducing harm are so obvious, too, that it hurts to see us chase our own tails trying to "fix" things by doing the dumb stuff we're doing. Now, instead of being able to focus on moral problems, we've created a greater market for moral problems, and we focus greater attention on the practical problem of drugs than we do with the moral problems of true crime.

Clearly this could be a rallying point for liberals and conservatives alike. I just don't see how it can be considered to be a moral problem what people do in the privacy of
their own lives that doesn't specifically hurt someone else. Will we ever get real on this?

MSNBC - Scott Peterson convicted of murder

MSNBC - Scott Peterson convicted of murder

I told you so.....
It was a no-brainer, and all those who thought he'd walk, puuuleeeeese.
Not in the real world. He's not a celebrity, no special treatment. He's done.

It will be even tougher for him in penalty now since they argued he didn't do it. It's one thing to argue for mercy in that the homicide was accidental, and that's the issue in the case, or heat of passion, or insanity, or something where you are arguing mitigation in the case in chief, but at least where you admit the fact that the defendant did the action alleged (and the issue is intent or state of mind).

Prop 66 (3 Strike Reform) RIP

Well, I knew it was too good to be true. I couldn't fathom the state making 3 strike less severe, no matter what the polls suggested. In this day of right wing radio (and elections, for that matter), I didn't see how common sense would prevail over pure emotion and lies.

In the end, our governor, Arnold, stumped big-time for the end of 3 strikes. One of the best reasons I saw that prop 66 would pass was that there were so many big-money propositions on the ballot, including all of the Indian Gaming initiatives that Arnold opposed so much, I thought they would drown out prop 66 and it would slide under the radar. It did, for all but 2 weeks of the campaign. In the end, lies won out.

What lies? Well, Arnold went on wall to wall TV suggesting that 27,000 violent criminals, like rapists and murderers, would be released under prop 66. As I explained earlier, this is a complete fabrication. First of all, no one convicted (in the present offense) of a violent crime was eligible for release consideration, only people who may have that in their past (and it could be way in their past). The opponents of reasonableness found a few people who had done really bad things in the past, done their time, gotten out of prison, and now were serving time for minor offenses enhanced due to their prior convictions and alleged that "murderers and rapists" were getting released. Well, guess what, they were already released and weren't murdering or raping (that we know of, or yet, I guess they would retort), they were doing small time thievery or using drugs.

The other large lie was that 27,000 of these people were going to be released. A judge in Sacramento had already struck that language from their argument against the initiative on the sample ballot mailed out to voters. The true amount was about 4,000 (perhaps as much as 7,000) non-violent offenders would possibly be released under this law.

Ultimately, though, complex discussion has no place on 15 second ads (in a true testiment to the intelligence and honesty of our governor, he couldn't even come up with 30 seconds of lies, and had to restrict his ads to 15 seconds so as not to give too much information to the voters). I have TIVO, so I rarely watch commercials, but I was watching a rerun of Columbo (the greatest detective TV show ever) the night before the election and happened to stop and see an ad, so I looked out for them, and guess what, they were wall-to-wall anti-prop 66 ads. Sometimes I saw 2 or 3 ads per commercial cycle, they were so short they couldn't have cost that much to run. I'm sure that it was the same on other channels. I've always held that you could probably try to pass an initiative called "Tough on Crime, mandatory Dog-shit eating" proposition, and it would pass by virtue of the name. Hell, execute all murders, all felonies, all crimes, all traffic infractions, they'd all pass far as I can tell.

PD Dude No More?

Believe it or not, PD Dude may no longer be a PD before long. It's looking increasingly likely that PD Dude may be selling out to the highest bidder. At least the bid was high (it had to be in order to get me to reconsider what I had always considered the greatest job in the world). I'm still here, and will be for another 2 months, but it looks as if PD Dude will soon be Private Defender Dude pretty soon. I was considering keeping it a secret, and just keeping on as if I was still a PD, but hey, honesty is pretty important to me, so I'm coming clean. I guess that I'll always consider myself a PD at heart, but not in pocketbook or paycheck (or client base, I guess).

I think representing wealthier clients wil be a large change, for better and for worse. One of the things I've always loved about PD work is that I'm representing the underdog, I guess most of my clients won't be underdogs any more. On the other hand.... What other hand is there? Well, I'll probably still post as PD dude, if anything because I'll be doing the same type of work in the same locations, but it will just be for a different boss.

3 Strikes Thoughts - I'm Baaaaack!!!

Alright, I know it's been forever since I've posted, I'd like to claim that I've been exceedingly busy (I've been a little bit busy), or that I've had writer's block (I haven't), I've been mostly preoccupied - by the election, and by the possible ending of Public Defender Dude and the beginning of Private Defender Dude. I was thinking of not saying anything (and I've done a good job of that), but ultimately, this site is a catharsis at times as well, so I'll out myself in that respect.

Before I go into that (a post later this week), I want to talk about Proposition 66 in California, the proposition to amend 3 strikes. SoCalLawBlog is having an online symposium about Prop 66, and I think much of the press going out about it is distorted against it (especially by talk radio in California - no surprise there), so I figured I'd weigh in. This is going to be a thick one, so, here goes.....

California's 3 strikes law was passed first by the legislature in 1994, and then passed by the electorate as an initiative (making it almost impossible to amend later in the legislature) at the end of that same year. The 2 laws are 99% the same. The only amendment to the law came in the form of Proposition 21, the Juvenile Justice bill in 2000, which added numerous crimes to the list of violent or serious felonies.

As the law now stands, it works like this: If you have been convicted of one enumerated felony ("serious" or "violent") and you pick up any new felony, your sentence is doubled, and you are not eligible for parole until you have done 80% of your sentence (inmates generally are eligible for release after serving 50% of their sentence). If you pick up a new felony and have 2 or more prior "serious" or "violent" felonies, you sentence is tripled, or you get 25 years to life, whichever is greater. 25 years to life means you are not eligible for parole for 25 years, and only then after going through a lengthy and uncertain parole process (very few lifers are released each year, but for at least another 15 years, there will not be any lifers facing parole who committed non-serious non/violent offenses, so who knows what will happen in another 15 years).

By comparison, in California, 2nd Degree murder is punished by 15 years to life, 1st degree murder is punished by 25 to life, and special circumstance murders are punished by life without parole (LWOP) or death. Kidnapping for robbery, rape or ransom is "simple" life (generally, eligible for parole in 7 years), as is attempted 1st degree murder.

All "strike" sentences are meant to be fully consecutive, so if you write 2 bad checks with 2 strike priors, your presumed sentence is 2 consecutive 25 to life sentences (parole eligibility unknown - presumably you have to finish your first 25 to life sentence, which no one has done yet, and then do your second one).

Now, where the rubber meets the road - what are strikes? Ostensibly, just about every bad crime you can think of is a strike - rape, robbery, murder, kidnapping, assault, child molestation, and about 40 others. In 2000 several new charges were added - criminal threats (this includes things like saying "come here again and I'll kill you," it used to be just a misdemeanor, but was later made a felony, and then a strike), intimidating a witness, and any crime done for the benefit of a gang (from as serious as murder, to as mundane as graffiti).

While most of the crimes on the list are truly terrible crimes (within the pantheon of crimes, that is, obviously just about all crime is bad), the bulk of the cases I get involve strike priors that are not that bad. Prior to 2000, we used to frequently plead people to criminal threats under the theory that the case was very weak, the prosecution wanted to give the store away, but couldn't get rid of the felony, so they'd offer this, which was generally considered "felony disturbing the peace." Many people would plead to charges which later became strikes, often to extremely low deals, as they never anticipated that this could later result in their getting a life sentence. One client of mine had a prior attempted murder that was reduced to an assault and released frmo jail immediately because it was clear that he had defended himself against gang members. 12 years later when he picked up that dope case, though, the facts of his prior case didn't matter, he had a prior strike. Had he considered that this may come back to him as a strike, he would have gone to trial, or worked out a deal that was not a strike, as it was clear he would probably have won at trial and he only plead to get out of jail right then and there (this doesn't go into the obvious moral and ethical issues raised by DAs offering great deals when they have people that are likely innocent). Residential burglaries are strikes, but the victims need not be home, and if you enter an underground garage for an apartment complex, that is considered a residential burglary, and a strike.

The fact that people pled to something that later became a strike has no effect on whether it is a strike.

Prior to 1994, the number of convictions out of one prosecution did not really matter, so frequently people would "plead open to the Court," which meant pleading to all charges instead of just one of them, in return for the Court cutting a year off of the person's sentence. After 1994, many people who did that came to regret it, as it made the difference between a 4 year sentence and life in prison after 3 strikes was enacted.

Offenses committed as a juvenile are strikes (except residential burglary, in an oversight by the drafters), even though the juveniles never had a right to fight their case in a jury trial.

There is no statute of limitations on strikes, one of my clients had robberies in the 1950s and 1960s and faced life for drugs in 1998. Most people with strikes tend to be older, as those who are younger still tend to be in custody. The vast majority of cases in which someone faces life due to strikes involves petty offenses - possession or sales of tiny amounts of drugs, petty theft, forging a small check, resisting arrest, driving a stolen car. Most of my clients prior strikes tended to be relatively minor affairs - stealing something from a garage, purse snatching, criminal threats, breaking into a house when no one was home (it used to be that for a 1st degree burglary someone needed to be home or it had to be at night).

Many counties have enacted policies in which they only seek life sentences when the new case is violent or serious. Some have not. Until 2000, Los Angeles, under DA Gil Garcetti, aggressively sought life sentences in all cases. His successor, Steve Cooley, made a policy only to seek them in serious or violent cases, but to seek the enhanced "doubling" sentence for nearly all cases. Use of strikes as a coercive plea bargaining method (which was always done under Garcetti - "take this deal or get 25 to life if you lose) was supposed to end under Cooley, it has to a large extent, but not completely and not everywhere in the county.

Proposition 66 seeks to make 3 strikes somwhat like Cooley enforces it, but even less harsh. Prop 66 would only apply strike priors to a new offense that is either serious or violent. Also, you could only get 1 strike per case (unlike now, when some people get all of their strikes from one case decades ago). Also, a few of the more recently added "serious" or "violent" felonies would be removed. These include criminal threats, intimidating a witness, commission of ANY offense for a gang (in contrast to serious or violent offenses for a gang, which would still be a strike), and residential burglaries where no one was home.

Prop 66 would allow for resentencing (and likely release) for people serving life sentences for non-violent/non-serious offenses that would no longer be eligible for life sentences under the law. Opponents of Prop 66, like California's DA association, contend it would also allow the far more numerous people sentenced as "2nd strikers" (or those with only 1 strike prior serving just doubled, not life, sentences) to be released. However, the act does not say that, even though there is an argument that this should happen under equal protection. You can rest assured that the DAs arguing that all of these people WILL be released under Prop 66 will be arguing like crazy that, if the law passes, it says no such thing about "2nd strikers" in opposing their release. But hey, no one has ever said they weren't duplicitous in the past.

The last provision of Prop 66 was pure marketing genius, the proponants realized that as long as they could claim to be tough on crime, perhaps they could get this to pass, so they doubled the sentence for one child molestation section. Since that section rarely is charged alone, and most people charged with it also face life sentences on other counts, it really has little practical effect, but it allows them to call this a "Child Molestation Punishment" proposition as well. Absolutely genius (just like the Juvenile Justice bill that added all of these adult strikes that had nothing to do with Juvenile Justice).

My thoughts are as follows: I think that giving life sentences to people convicted of non-violent offenses is violent in and of itself. The message is spread far and wide - your life (as a criminal) is worth a slice of pizza, or a forged check, or a rock of cocaine. When you diminish the value of criminal's lives, they will surely respond by diminishing the lives of their victims. How do you turn more petty thefts into shooting matches with the police? Tell them that they face life in prison if they're caught. One may argue "not all of them have strikes." Guess what, most of these people have no clue what their records are, legally speaking. They don't know what strikes are, they find out when they get arrested. I've had dozens convinced that they had multiple strikes when they had nothing worse than suspended license convictions, and I've had plenty astounded to find out they had strikes from decades earlier. Many will be deterred from doing crime by fear of strikes, but we had better be very afraid of those who will not. As we ratchet up the potential punishments, we had best be prepared for ever more horrific actions from those prepared to continue their lives of crime. This doesn't mean we shouldn't punish, we should, but we need to practice proportionality. We expect it from our criminals, they should expect it from society.

I am ambivalent about the provision that multiple strikes cannot arise from the same case. In some cases that is correct. DAs have abused their ability to charge multiple strikes from one incident. Thus, someone robs someone with a knife, they have done a robbery (1 strike) and an assault (another strike). This is only one action, and it is only through creative charging that it becomes 2 strikes. That is wrong, the action was violent, it is a strike. If they do 2 separate violent actions, that should be 2 strikes. So, if they hold up 2 separate people on separate incidents, then that should be 2 strikes. I think it could've been worded differently, but if separate strikes are so important, then DAs can simply charge people for the separate actions on separate complaints. There is no problem doing this.

All in all, this is needed reform. It is absurd to fill our prisons with older, non-violent petty thieves who have violence in their (often) distant past. It is about time something like this passed, and it could only pass through an initiative (something I think are overused and poorly done) because it was originally passed by initiative, and thus nearly impossible to amend.

New Blog to Check Out

Check out the new blog Catastrophic Victory (named not only after Bush's phrase "catastrophic success" in the war in Iraq, but also after Bush's victory over Al Gore, and, for that matter, about the North's victory in the Civil War, which has given us our present political alignment).

There's a cool post on the state of the Axis of Evil, almost 3 years after Bush's speech. Here's an excerpt:

All in all, it's good to see that the axis of evil is alive and well, perhaps
even prospering. Sure, Hussein's gone now, but Bush actually called Iraq the
axis of evil, and by all signs, Iraq seems to be more evil than ever. Our troops
die there at rate of a couple per day, terrorists have begun using it as a new
Afghanistan, as if our failures there didn't make the new Afghanistan almost as
hospitable as the old one. I'm sure that the neo-cons who have run our foreign
policy by political theory rather than political reality are thrilled with the
rhetoric, unfortunately, the rest of this country will be struggling with the
reality long after the neo-cons are a bad memory.

Check out the site, it's worth a read.

MSNBC - Stewart to start jail term as soon as possible

MSNBC - Stewart to start jail term as soon as possible

I'm all about admitting errors when I'm wrong, and I was wrong on this one. I really thought she'd never see a day in the clink, but, as Reagan said about arms for hostages, the facts have proved me wrong (of course, Reagan wasn't making a prediction at the time). She is continuing with her appeal, and I actually think that she has good issues for her appeal.

I've often thought, if I could be safe and financially secure, that a few months in prison wouldn't be that bad - catch up on the reading, have some alone time, you know, some people, good and bad, have found it a cathartic experience. People like Malcolm X, Martin Luther King, Adolph Hitler and others had time in jail to develop their thoughts and think in prison in a way that they never would have if they were dealing with life's daily give and take. Of course, our world has been made better and worse by that time away, I'd like to think I'd make it better.

Maybe that's what Martha's thinking, it's time to have some alone time. Let's face it, in a woman's minimum security prison, she's not going to face much, if any, danger. She'll probably be able to pay off people to keep her safe as well. Maybe she'll end up all the better by this time away.

Los Angeles Times: L.A. Police Captain Gets Probation

This from Saturday's LA Times, how this stuff goes by without a peep from the public is beyond me: Los Angeles Times: L.A. Police Captain Gets Probation

I've said it before, and I'll probably say it to my grave. If you want to commit a crime and get away with it, put on a police uniform, because it gives you virtual immunity. I've handled a couple of these counterfeit cases before, and I remember how they worked. The industry would investigate the case, they'd tell the DA what to do, they'd tell the court what to do, and everyone would do exactly what they asked for. Most of the small-time people (like people who run clothes stalls at swap meets and things of the like) would not face much jail, but they certainly never got misdemeanors out of the cases.

Regardless, one of the essential calculations has been missed. Is the fact that a person is law enforcement a basis for a lower sentence or a greater one? I think that if they used their law enforcement position to further the crime, it should be a reason for more, not less, punishment. However, it appears as if it is routinely a basis to give people a pass. It just goes to show that there are two classes of citizen, most of us grunts, and those in blue who can do whatever they want. This is how a society slouches towards autocracy.

Idiotic Gang "Expert" Opinions

I know I've written on this borderline criminal notion of police gang "experts" who will say just about anything to make a defendant to look bad, making stuff up wholesale under the guise of "expertise." I've probably bored quite a few of you with this. Well, I have a case going now that is going to blow the top off of this at some point. A few months ago a DA elicited gang testimony in a shooting case I have, coming up with some absurd theory of retaliation against a snitch where 2 gang rivals collaborated to punish this snitch, who was from my client's gang (BTW - It is highly doubtful that my client is a gang member, but I'll just accept the cop's absurd premise for the sake of showing how absurd it is. However, no reasonable doubt can exist that the co-defendant is from a rival gang to my client and the victim's gang). I always thought the theory was idiotic, and I think I exposed much of the theory as bogus.

Well, fast forward a couple of months, and what do I get dumped on me? Multiple CDs of wiretaps, wiretap motions with affidavits by detectives and reports on the wiretap results. Furthermore, I got recordings of jail visits of people related to the case (none of them for my client). What do these show? They show pretty obviously that the "theory" and "expertise" testified about by the detectives was simply put - absurd. They show that a much more reasonable explanation shows what happened, one that no expertise was really needed for, about what rivals shot this victim. Unfortunately, they cannot fit that into some nice little package to also pin it on my client.

So what do I do now? I believe that there was outrageous government conduct - the DA elicited opinions that contradicted evidence that she had which would tend to exonerate my client. The DA did this with knowledge (constructive or actual - constructive knowledge means that the DA should've known, in this case the DA's boss actually filed the wiretap motions months before this DA elicited these opinions, and the investigator in this case worked on those wiretaps) that contrary information existed to show the information was false. Furthermore, the DA withheld exonerating information from me at the preliminary hearing, a violation of my client's constitutional rights (some people still think that stuff matters, although those people are becoming an ever smaller minority). Finally, it just violates honesty and fair play to present what the prosecutor knows to be a false theory. I guess in the DA's defense, perhaps the prosecutor could be so hard-headed, dishonest or mean spirited to still believe in the theory that harms my client but is unsupported by any actual evidence as opposed to the contrary theory which exonerates my client and is supported by mounds of evidence. But at least this should be turned over before they presented their contrary theory.

I'll keep people updated on this case. Could it be that I actually have 2 completely innocent people in just a year that I'm representing in gang shootings? These almost never happen, how could that be?

Oh, I forgot to mention, the DA is the same one I had on my other "innocent" client case.

More Kobe Thoughts

I think I've written about this before, but why was Kobe ever charged in a case like this in the first place? Let's face it, clearly the girl went to his room willingly, probably with the intent of doing something sexual (why else would she go up there, for an autograph?). She first told the police that she never told him no, only to later mention that she did say no. When the police first spoke with her they never noticed the tiny mark on her cheek that they noticed the next day. They had evidence that she had been with at least one other man in the time around the incident, perhaps afterwards (let's face it, someone is not going to have sex with someone shortly after being raped unless they're really twisted, at least that would be my impression being a guy). Finally, they knew about her history of mental problems, including attempted suicides.

Now, people contend that celebrities get favorable treatment at the hands of the criminal justice system, and frequently that's the case. However, I've also found that excessive publicity about a case harms a defendant, and that can be the case for celebrities as well. Sure, OJ capitalized on his celebrity to get an NG, but I would bet that Michael Jackson's celebrity is probably hurting him right now, as everyone knows about him, and it's far easier to slime someone in the press when they are already frequently in the news. Also, is there anyone who thinks that the DA would've sought death in the Scott Peterson case had his case not received so much publicity?

In the Kobe case, I think his celebrity harmed him. This was a weak case, no matter how you look at it, from the very start. Yet, the Sheriff took the exceptional step of arresting him so quickly when he didn't have to. He very possibly did that because Kobe was such a big named person. Then, while the DA thought about whether to file the case, I'm sure he had to consider what would happen to the county if they didn't file on Kobe. Kobe would probably have a great wrongful arrest case against the Sheriff. However, his wrongful arrest case would probably go away if the DA files a criminal case on him and a judge determines that there was probable cause to go to trial based on the preliminary hearing. Therefore, tiny Eagle County could face a ruinous lawsuit from Kobe that could be preveted just by filing on him. I think from that day forward, the DA was thinking about how he could get out of this case cleanly. Certainly the prelim showed how weak the case was, and it just never got any stronger from then on.

Contrary to the press reports, the rulings of the judge against the DA were no big surprise. Consider:
1) The DA had problems with the DNA that they originally sought and tested. They caused all of the problems with the DNA and chain of custody, almost looking like they were throwing the case right there. There's no chance a judge is going to keep out DNA at the behest of the DA when it was tested by the DA's crime lab at the DA's request. This is hardly a surprising blow.

2) Rape Shield - The judge never ruled that rape shield was unconstitutional, or that the defense was not restricted by rape shield. Rape shield has a specific exception to allow for evidence of other sexual partners to explain injuries. The DA sought to bring evidence that the girl had injuries, and that they were caused by Kobe. It's simply black letter law that Kobe's defense is allowed to rebut that evidence with proof of other sexual partners. How the press can call this some kind of a surprising victory for the defense is beyond me. That was clearly going to be admitted from day one.

3) Complaining wit's mental problems - The judge actually kept most of this out, which I think was an error. Let's face it, the fact that someone accusing you of misreading their response to your sexual advances has mental problems should obviously be admitted. This is a charge of interpretation of words, body language and things of the like. She claims she didn't want to have sex, he claims she did. If he had to understand what she was thinking, feeling and saying when this happens, shouldn't the fact that she expresses herself in such bizarre manners in other cases be admitted here? The judge indicated he would keep much of that out. This, I think, was a big victory for the prosecution.

In closing, I think that this case was never likely to go to trial, it was just not a strong case, and the fact that it was brought at all was in many respects likely a factor of Kobe's celebrity and money, at the very least, because the complaining witness may have seen dollar signs from the start. The fact that it didn't go to trial did not surprise me in the slightest.

CNN.com - Judge drops charge against Bryant� - Sep 1, 2004

CNN.com - Judge drops charge against Bryant - Sep 1, 2004

I hate to say "I told you so,", but, I told you so.

So much for my dream scenario...

The Rape Shield Law

This has been in the press quite a bit over the last year thanks to Kobe Bryant. It is something I've had to deal with on a few occasions in my practice, but not in the manner that one would think. In general, Rape Shield laws were created to prevent evil defense lawyers like me from asserting that a woman walking down the street, yanked in to an alley and raped asked for it due to the fact that she had sex with just about every guy who ever approached her.

Personally, I couldn't imagine many cases where involving stranger rape (as opposed to date rape) where I would begin to consider putting a woman's sexual history on trial. I'm not saying I can't think of a scenario, because I'm sure someone will tell me one, but in general, it is hard to imagine one where such a defense would go very far.

Now, in cases of date rape, I happen to think that a woman's sexual history is a little more relevant, if we are dealing with an issue of friends or acquaintances who have sex and trying to determine when and how the woman said "no." Don't get me wrong, I recognize that "no means no," and I certainly don't quarrel with that. On the other hand, it seems that there frequently exists quite a bit of ambiguity in these situations. One person says one thing ("I said no"), the other says something else ("she was into the whole time, but freaked out afterwards"). I'm not sure how relevant sexual history is in that situation, but imagine if the person claiming rape had a history of having sex and then feeling bad about it, or coming back to the other party angry about the encounter. In other words, it would possibly be illuminating to know a little about the background of the person making the complaint.

Certainly, that has been the situation in the Kobe case, where we clearly have a complainant with a plethora of issues: suicide attempts, numerous partners, celebrity, and undoubtedly other things that we don't know about (and may never know about). Let's just imagine that all of this information was kept out of the Kobe trial, and all we had was her simple assertion that she went into his room and he attacked her, without any context of her prior or subsequent actions, or of her mental state before, during and after the event. Certainly, it would be hard to believe that Kobe received a fair trial under these circumstances.

I have a theory, especially in these "consent" or "date rape" cases (as opposed to a case of identification, or where there is admittidly no relationship of any kind between the two parties), about the rape shield laws. I could easily see my next closing argument going something like this:

We have heard the complainant come in here and make her accusation, that the defendant had sex with her even though she said no. Let's be clear, the law exists that I am not allowed, pursuant to the rape shield law, to find out about her background and determine whether or not she has done anything like this before. I cannot discover anything about previous partners by her, I cannot present any evidence that would show what her personality is like, other than how she appears here in court. Now, it is clear that the manner in which someone presents themselves in court does not necessarily reflect the manner they are outside of court, the DA has noted this while talking about the fact that the defendant may look nice here, but out of court he was a predator. Well, even though the law is what the law is, you should not hold it against my client. The fact that my client is not allowed to find out about the person's background does not mean that you should assume only the best - that she is of unimpeachable character, because we haven't heard anything to the contrary. Rather, you could just as easily presume the opposite. The law gives you contradictory orders - don't look into the complainant's background, and presume the defendant innocent. Therefore, while we can't speculate about her background, we can presume that the defendant is innocent and give him the benefit of that doubt and find him not guilty, having no particular reason to trust this witnesses account due to a law that has been created to otherwise protect her.

Now, I've never tried this one before, and it clearly needs some refinement, but on the other hand, it seems something like this could work out.

Any thoughts?

Great post by Uncivil Litigator

The Uncivil Litigator

Uncivil Litigator wrote an absolutely heartwarming post about getting his wife permanent residency in the US. It is one of those cases where the resolution was quick, and it had a huge personal impact on an individual's life. As far as I can tell, this doesn't usually happen in the practice of civil law, which is one of the reasons I love criminal law so much, because nearly every case has that kind of an effect. His story is far more dramatic than just about any case I've handled, though, and it is so well written it could very well bring tears to your eyes.

Great post UCL, I'll be checking back on your site frequently.

All Peterson, All the Time

This weekend I was at a dinner party, and a news show producer from one of the big 4 networks was there. This person is inside the courtroom in the Peterson trial every day. Her take: Peterson may be guilty as sin, but the prosecution has done a piss-poor job, Geragos has done a great job, and if things keep going the way they are (including with Amber Frey), Peterson's going to walk.

I tried to explain to her that she doesn't understand the dynamic of being in a trial where the defendant has been found guilty by the press long before the case ever got to trial. In cases like this (the David Westerfield case in San Diego a couple of years ago included), you can have very weak facts, but if they have been convicted in the press already, weak facts don't matter. Juries will find someone guilty on a sniff of guilt, even without compelling reasons. So many of these cases that have been reversed for late findings of DNA exonerating the defendant have been cases where the facts were really weak, but the case was high profile (at least in the area where the trial took place) and a rabid press convicted the defendant long before trial. The result, juries figure where there's smoke there's fire, and there would never be a case pending unless the police and press were really sure. Also, jurors have heard so much one-sided evidence in cases like that that they have formed a predisposition against the defendant, no matter what comes out at trial (and this is subliminal, so they may not even recognize it in order that it can be rooted out during voir dire).

What do I think the result will be? I think Peterson's going down. The contrast with his case and someone like OJ's is important - he is not a celebrity. I don't think he has a prayer.

Anger

Boy, I was really pissed off during that last post, wasn't I? I could delete it, or amend it, but hey, that's how I was feeling when I read that article, so that's how I'll leave it. If I offend, oh well. It's not personal.

CNN.com - FDA fears drugs a terror target - Aug 12, 2004

CNN.com - FDA fears drugs a terror target - Aug 12, 2004

I found this one on Washington Monthly, formerly CalPundit.

This may be the key to the whole presidential election, right here in this article.
I sincerely believe that we have been lied to by the Bush administration about terrorism for political purposes. We know for a fact that Bush used Iraq and false issues of the Department of Homeland Security in the Congressional midterm elections in 2002. By linking Senators like Vietnam war-hero Max Cleland to Osama Bin Laden and Saddam Hussein for his opposition to stripping government workers in the new DHS of unionization rights, Bush signaled that he was ready to play politics with national security. He claimed that Democrats who opposed his vision of the DHS weren't interested in defending America. Never mind, of course, that he had opposed the creation of the DHS despite strong Democratic support for it in the wake of the 9/11 attacks, only to jump on the bandwagon when he realized political hay could be made of it by inserting the political poison pill of slashing worker's rights in the legislation.

This, however, is the worst. There is no doubt that the Bush administration opposes allowing people bringing prescription drugs into the country from Canada and Mexico for one reason and one reason only: it will diminish the profits of the pharmecutical companies that give so generously to the Republicans. But now, the head of the FDA, the people who are supposed to protect us from bad drugs and food, are trying to claim that this opposition is due to national security. Imagine that, they will lie about anything to make a political point. When people claim that Bush knew about 9/11 before it happened (something I don't believe), they need merely point to the truly venal manner in which Bush has used the threat of terrorism to ram through his political agenda - things he would have supported in the absence of 9/11, but that now justifies with 9/11. Why, if Bush will claim that something as morally indefensible as banning people from buying the same drugs in Canada that they can buy here at half the cost is due to terrorism, what won't he lie about and claim that he is doing it to deter terrorism.

Is there a person alive who really believes that Al Qaeda is sitting around planning major attacks on the US with Lipitor to attack the high cholestoral of Americans who try to buy their drugs in Canada? Oh, I'm sure, they are just chomping at the bit, perhaps they're setting up their own terrorist front organizations as cross border pharmacies, just to ensure that only Americans die. This has been such a threat over the years, I mean, we've done so much to try and warn Canada about the imminent danger they face.

The public needs to understand, Bush will do ANYTHING to win, he will lie, he will cheat, and most importantly, he will claim that everything he does is to prevent terrorism, no matter how unrelated. This is because, ultimately, the only reason he is still in the race today is because 19 evil people flew planes into 3 buildings and into the ground and he managed to use the subsequent fear of a nation as a whip to keep us in line. You want to see the real George Bush in the face of threats? Watch the 7 minutes of reading "My Pet Goat" when informed that the 2nd plane had smashed into the WTC and America was under attack, 7 minutes without Karl Rove to tell him how to use that to his advantage. Watch fratboy Bush land on the aircraft carrier with the large sign "Mission Accomplished" behind him as the ultimate photo op, 700 dead bodies ago. Watch high school Bush invite the terrorists to "bring it on" 600 dead bodies ago.

Please, please, please, whatever you do, let's save this country and get him out of office.

UPDATE - Holden of Public Opinion Blog is with me on this one. Thanks Holden!

MSNBC - Bryant prosecutors seek indefinite delay of trial

MSNBC - Bryant prosecutors seek indefinite delay of trial

I never thought that Kobe would be convicted, I just couldn't imagine that a star would get convicted on the weak facts this case presented, and I always wondered why the case was filed in the first place. My theory was that the DA was forced to file due to the Police's arresting Kobe. By filing the case and having it proceed at least past preliminary hearing (and a finding that there is probable cause), the county would be pretty much immune from a wrongful arrest charge which would be much more valid if they never filed a case. At the very least, I think that the DA had to file just to back up the Police and not leave him hanging after he arrested Kobe.

I always wondered how they would back out of the case, and this appears to be the way. It looks like they are going to announce that the victim doesn't want to proceed due to the publicity and anguish she's going through. Does she really think that what she's going through right now can even compare to what it will be like to be on trial? Does she really think that she will be able to keep her identity secret against one of the most well known stars in the world? And, if she's so interested in that anonymity and doesn't want to have this terrible publicity, coupled with the rulings that rape shield will not apply to her sexual conduct within 72 hours of her contact with Kobe, does she really think that filing a civil lawsuit will make it all go away?

Clearly, this civil lawsuit has given the defense more than it could ever ask for in their case, and I just can't imagine that the case will ever proceed at this point.

Of course, this blows my "dream" scenario. My scenario involves something akin to human sacrifice. I started practicing criminal law (and law in general) around the time of OJ Simpson trial, and for years, probably to this day and beyond, defending people accused of crimes has been made much more difficult as a result of that case. The perception of most people in society is that a guilty man went free on a misreading of reasonable doubt, bad rulings by the judge, poor prosecution, etc.... This is a perception I've been having to deal with for years, with jurors, the public, and equally important, with lawmakers and the electorate. The number of idiotic "tough on crime" laws that have passed due to OJ has skyrocketed. In California, they tried to get rid of the hearsay rule for domestic violence cases (this appears to have been overturned by the new Supreme Court case Crawford v. Washington), plea bargaining discretion, and other things. Judges are more afraid of crossing DAs than ever. In other words, the prospect of a man everyone knows is guilty sitting on the golf courses of America has screwed up my profession, and hurt other people who are not as guilty as OJ was.

Thus, I figured Kobe could be the anti-OJ. I thought that if the judge kept out all of the victim's clear mental problems (like her suicide attempts and other cries for attention) and her sexual activities around the time of the rape (how many guys did she have sex with in those days? Did she actually have sex with someone AFTER she was raped? Hardly the actions one would associate with a rape victim), and if Kobe was convicted as a result, then we would have a clear case where much of society figured there may be an innocent man sitting in prison for a rape he didn't do. If Kobe got life, and actually began serving it, imagine what I could argue in future cases. "Ladies and gentlemen of the jury, you don't think that an innocent man can be convicted of a crime he didn't commit? Just consider Kobe Bryant, who IS STILL IN PRISON FOR THAT RAPE WE ALL KNOW HE DIDN'T DO."

Well, it appears that, luckily for Kobe, this will not be happening.

Republicans helping Nader

Obviously, there is nothing "wrong" with Republicans helping to put Nader on the ballot in many of the key "swing" states. That being said, there is clearly something unseemly about Nader accepting that help, he has to recognize that he is being used as a pawn by the Republican party to help re-elect Bush.

Here's the question I'd like to know, though. If the Republicans think it's that important for our democracy to get Nader on the ballot, do they also support his right to participate in the presidential debates? I would assume they don't, after all, the last thing they want is 2 people bashing Bush at the debates. Imagine if Bush had to debate against Kerry and Nader, he wouldn't be happy (I suspect he would decline to debate instead).

Blogger Ross at Three Sheets to the Wind has a post about my comments about chickenhawks. Here is part of it, click here for the rest (he has a good blog, it's worth checking out).

• But my point is more about the stupidity of the "chickenhawk" label. A chickhawk is apparently someone who has not served in the military but advocates military action. Now on the face of it is an ad hominem attack and I'd think a lawyer like PD Dude wouldn't engage in fallacious arguing. The appropriateness of military action has nothing to do with the person recommending it. It either is warranted or it is not. Whether the person advocating for the war has been to war or not is irrelevant.And it was irrelevant to the left when Bill Clinton, who didn't even bother to serve in the guard or reserve, was President and bombed Iraq and sent troops to Kosovo (not to mention continuing in Somalia). That, for the current "chickenhawk" name-callers is called hypocrisy.

Here is my response.

I think that the whole notion of "chickenhawks" came about due to the right. Remember, it was Bush Sr. who made a point about Clinton dodging the draft. The right has consistently used the left's unwillingness to serve, or opposition to the war, as unAmerican.
Now the tables are turned. At least those liberals who failed to serve opposed the war. There is a difference when you support something, but only support other people having to do it.
People like Cheney and Bush, Quayle, Buchanan, Limbaugh, Wolfowitz, Perle, and plenty of other present day hawks, not to mention the hawkish parents of at least some of these people (Bush and Quayle to name just 2) hold hawkish views, support sending people in to die, but are not willing to do so themselves. At the same time, they use (maybe not personally, but their political cohorts) language that assails the patriotism of liberals who protest and do not serve in the war.

Limbaugh made great hay over the years pointing out that Clinton was protesting and trying to avoid the draft while others were dying. Well, at least Clinton was opposed to the war he dodged, rather than supporting it like Limbaugh and avoiding it. I think that there is a qualitative difference. Regardless, this is a shield that has been turned into a sword by the left after years of being battered by it. It is only through the cruelest of ironies that just about every hawk in the Bush administration managed to avoid serving in the military, or at least avoided combat through personal or family connections. The administration doves (namely Powell and Armitage) both served in combat.

I don't think that you have to have served in order to lead, or even to lead us into combat. However, I think it represents something about a person's character when you are especially willing and anxious to send out troops into combat (as the neo-cons have clearly been), while at the same time you are equally willing and anxious to avoid serving on your own. If something is so important to risk so many lives, then it is important for all American lives, not just poor minority ones, or the lives of people without the connections to avoid the draft, get into the national guard (which during Vietnam was a get out of combat free card) or get college deferments.

Now, if Clinton had previously annuonced that he was a conscientious objector (CO), said that all killing was wrong, and he would not serve for that reason, and then gone on to become a president who bombed Iraq and Serbia and used force in plenty of other situations, then clearly we would have a similar situation. For that reason, I would have to say that anyone who feels that force is never justified is probably not someone able to properly lead this country. I would probably say this regardless of wether or not they served, as we need to use force in many instances. However, if such a person did become president and then used force, after justifying their non-service with a CO type of a claim, that person would have equally suspect character.

I do not consider it an ad homenum attack to point out how a person's lack of service may affect their thinking, and, especially in this administration, where the hawks so overwhelmnigly did not serve while the doves did, a clear pattern appears that cannot escape attention.

The latest from the right wing media machine has a classic one.  Drudge Report has a report about Kerry keeping an 8mm video camera with him while he was in combat, sometimes going back to places where they had fought earlier and reenacting the confrontation for the camera.

I dunno, maybe there's a little "I want to be president someday so I'm going to get this on film now to help my future career" going on here, but here's my thought:  I'd prefer a president who reenacts war scenes they took part in on camera for political gain, rather than a president who creates bogus scenes (eg - landing a jet on an aircraft carrier) harking back to an era when he dodged military service in a war he and his ilk happily supported.

I just love chickenhawks going after Kerry on the theory that he really didn't serve honorably. 
At least they can find people who actually served with Kerry.  I remember probably every famous person I ever went to school with or handled any case with.  If they hit it big, I'm remembering every interaction I ever had with them.  Don't you think that anyone who actually served with the president 30 years ago would not only be able to remember it, but actually talk about it with everyone they know?

Hey everyone, I've found a few new law sites that are pretty cool. Go check them out and let me know what you think.

True Believer is a DUI blog out of Santa Barbara (my alma mater, I'm proud to say). It has some good information you should know about before having "one for the road," or at least how to deal with it if you're pulled over after doing so (I'd just advise you take a cab, but if everyone did that, I may not have my house).

Crime and Federalism is a great blog that is not restricted to those issues alone. Lots of interesting things ranging from federal indictments, a cool little quiz (I may have got a couple of the questions right, but mostly by luck - damn, I thought I would do well on Jeopardy! Check this site out.

Real Lawyers have Blogs has some good information about setting up blogs as a part of your practice (this is something I certainly don't have to worry about in my job - cases come rolling in whether I like them or not). This is more for you civil folk out there, but check it out as well.

Finally, I'm A PD has a good site. A newbie PD starting out in Los Angeles, writes about her fights and frustrations. Don't worry PD, you're doing just fine. It takes a while to get really comfortable in this field, I know you'll be fine.

Sorry I haven't posted more. I have a couple of thoughts percolating, though.

First of all, long time no post.  No big reason, I just haven't felt it of late.  
 
Martha Stewart
 
My prediction.  She could easily get her conviction reversed.  But, I have little sympathy for the big time white collar defendants.  The only reason I have any sympathy for her is that I think she was the victim of a Republican House of Rep inspired witch hunt done primarily to divert attention from Enron (remember, that's when they started going after her and Wachsel, another big-time Democrat, at the time when the heat was turning on to the folks at Enron, who are big-time Republicans).
 
To begin with, how can the prosecution come up with a case for perjury against the ink specialist (who testified that there was a different ink on the page that said "sell at 60" or something to that effect), requiring him to have told a lie that was MATERIAL at the same time as they say his lie did not affect the litigation enough to warrant a new trial?
 
Perhaps I'm missing something, but I just don't see it.  If his lie is material enough to the prosecution that they file on him, then it must have affected the litigation.  This smacks of working out of both sides of their mouth.
 
Next, it seems wrong that she and Bokanavic were tried together.  I didn't follow the trial all that much, but statements that one of them made to the investigators were used in the joint trial, even though neither took the stand and neither had the opportunity to cross-examine them while the statements were being used against them.  This is a classic example of Aranda/Bruton, where your co-defendant's statement is admitted even though it implicates you and you don't have a chance to cross-examine that person on the stand.  I don't remember the example exactly from the case, but there were a couple of examples of where one person's statement hurt the co-D.  Such situations require severance.
 
Lastly, anyone who wants to go and criticise public defenders remember this, her high priced lawyers let her speak with the investigators, and it was these lies that resulted in her conviction.  Not because she lied to them and it made her look dishonest over a larger issue, but the lies were the crime.  I know of very few public defenders who would let their clients speak to the government when there is a chance of being filed on.  To put it in the context we can relate to more, if the police want to come and talk to you about your claiming too high a deduction for donating your car on your taxes (you claimed retail and only should've, in light of your car's condition, claimed high wholesale, or $500 more), would you go and try and talk your way out of this one knowing that talking your way out could get you in prison for a few years?  Any lawyer who let you talk is crazy.
 
Who knows, perhaps she insisted, this is not unusual in cases where you have high profile defendants who are used to getting their way and wowing the public.  If that's the case, then she certainly got what she deserves just for defying her lawyers when they suggested she act otherwise.  It's about time our advice turns out to be correct.

Supreme Court Day

It seems like the end of June always produces some bombshell Supreme Court decisions. This year was no exception, with huge rulings on Miranda (alright, maybe not huge, but a strong reaffirmation), and perhaps the most important series of rulings on the scope of government power in history, with the Court taking up the unlawful combatants and Guantanamo detainee issues.

It is gratifying to me when I see that 8 justices support the notion of judicial review over the executive branch. The fact that Clarence Thomas doesn't support this review doesn't surprise me, I'm quite sure he's still steamed at Marbury v. Madison and the ability of the judiciary to overturn an act of government (he probably loves Andrew Jackson's view of the Court and the subsequent Trail of Tears though). I thought, interestingly enough, that Scalia got it pretty good when he commented that, absent some legislation from Congress, the president really has no choice but to try Yasser Hamdi for treason, or let him go.

Just the other day, another great opinion on the ability of judges to increase sentences without a specific finding by the jury. Another great opinion by Scalia! Who would've thought the Constitution would create such strange bedfellows. On the otherhand, Scalia has had it right several times before (Texas v. Johnson, the flag burning case?).

All in all, this is a week that will leave any constitutional scholar in a tizzy. Rather than listening to my blathers, I'd suggest going to sites such as Volokh Conspiracy or Legal Theory Blog, or others listed at the end of my list of links.

Police Brutality....

Rears its ugly head again. Check here for the LATimes article (with accompanying video so you can decide for yourself), or click here for the CNN version if you don't want to give up your information to get onto the LA Times site.

I am conflicted about police brutality. In some respects, I think that it probably happens far more than we are led to believe by police departments, I think it is probably a fairly natural outgrowth of an increasingly militaristic, don't question authority, police can do whatever they feel they want to in their war on (fill in the blank with your pet war, such as drugs, here). Police have been given fairly limitless authority to do what they want, they almost never get fired for their actions, or otherwise disciplined, and when they do get disciplined, it frequently gets reversed by the chief or some board after the police union causes a big fuss. The punishments meted out are almost always far less severe than those given to regular folk in a similar situation, and certainly far less than poor minority folk in such a situation (before you howl that "regular" folk can never be in the same situation as police, read on before you dash off that angry email or comment). Finally, when some local prosecutor gets the cajones to actually file on a cop, they usually stick worthless DA's on the case, or don't give them complete resources to do this right, or rely on the same police department to assist them in the prosecution, usually resulting in major sabotage. And, last but not least, you can always expect the most compliant of judiciaries when you are a police officer. All this stuff I've written over the last few months about judges being DAs in robes, or the prison industrial complex ensuring people get convicted - well, ignore it when police are the defendants. Actually, don't igore it, remember it well, then reverse it, because everything is about to change. Rulings are terrific, judges help out in any way (consider the Rampart case where the judge actually threw out the convictions that miraculously took place despite her best attempts to get acquittals), or reversals on appeal happen (the only case where the Supreme Court has held District Courts may ignore mandantory minimums that stick people in prison for 20 years for a couple of pot plants is the case of King beaters Koon and Powell).

On the other hand, I am conflicted a little bit. First of all, we live in a society that is increasingly under surveillance, be it with surveillance cameras, people carring cheap and small camcorders that can record what happens easily, ATM cameras.... (you get the point). I have to assume that quite a large amount of cases of brutality are probably caught on camera in some form or fashion. I have no idea of percentages, and it is certainly something that can be kept under wraps quite easily in many cases, but always? No chance (as seen in this video). Furthermore, police will say, and I actually agree, that we can never understand what it is like to walk in their shoes for a day. It's easy to walk in their shoes for a split second - that moment where they do the objectionable activity like whack someone a bunch of times in the head with a flashlight, but for the whole day, seeing all of the things that lead up to that, the numerous split decisions that they have to make on a daily basis, many of which could result in their death. This situation probably makes it hard for me to be a perfect judge. Furthermore, while regular citizens don't normally have to engage angry, hostile and well-armed people on a regular basis, resulting in serious confrontations, police officers do, and they must make those quick, instant decisions that can be the difference between life and death.

This is why I'm conflicted. I see very good arguments on both sides, and I recognize both have much truth to them. That being said, my belief that police officers have tough jobs that I can't fully appreciate does not mean that I don't believe I can make judgements about their job. Here's the rub - enough officers do a great job without using brutality, just like enough interrogations of terrorists take place where information is retrieved to convince me we should not torture, to suggest to me that police can avoid brutality, and that it is not that hard to spot in most situations. When police officers beat a handcuffed person, it's brutality. When someone is on the ground and no threat to those around him, he shouldn't be beaten. When a kid is handcuffed he should not be thrown facefirst onto the hood of a car. And, as in this video, when police have someone standing there compliant, raising his hands in surrender, going down on the ground in submission, they have no right to beat the crap out of him. I can't imagine a context in that situation which would call for whacking that person in the head with a flashlight, or kicking him in the head. Even if the context arose (out of his further resisting), this only arose because the police botched the situation.

Let's be serious here, in the incident that just took place, the guy raised his hands and began to get on his knees, how about waiting (one of the officers had his gun drawn, he could easily have used it the person made any quick, furtive movements)? There is no excuse to just go and take that person down, and the fact of the matter is, under any objective criteria, the officer went to a place of less safety by proceeding to tackle him when he was surrendering. There is no theory of safety that makes you more safe when you get closer to someone who could be dangerous, and you are armed, and his hands are in the air. It just doesn't make sense.

So, why did this happen? I can only guess one reason, that the officer knew that he would not suffer any punishment as a result. Consider this, the officer gets accepted to the academy, then goes through the academy, he gets hired on, probably passes his probation and gets promoted, probably also wants a career in the department, and he certainly has no desire to throw it all away. Thus, we have to look at the culture which suggests that this activity is acceptable, and that culture comes from the top down: an internal affairs unit that is guaranteed to whitewash any allegations of wrongdoing by "us" against "them," a court system which reflexively believes anything police say; a political system where the support of police uniforms guarantees victory, regardless of the idiocy of the position; local news shows which glorify everything about the police, in large part due to the fact that the police spoon feed them their bread and butter crime stories; and a population unwilling to ask questions.

Prediction: this too will pass. The involved officers will be defended immediately in the local press by the police brass, at the same time as they call out for everyone not to jump to conclusions, as a complete investigation will need to be conducted. The investigation will take a long time, but will be a whitewash, resulting in little or no action. Whatever action is taken against the officers involved will be minor, and they will get the benefit of every doubt that no other accused ever gets. On the other side will be the regular suspects calling for these officers' heads, holding protests, carrying signs, performing vigils. They will be painted as silly, and generally ignored.

Scott Peterson

I have no idea if this guy is guilty, although I have my suspicions. I have respect for Mark Geragos as a trial lawyer, first from the Susan McDougal cases, and through some cases in which I've watched him in trial. He strikes me as a terrific advocate, someone who works his butt off for a client and doesn't worry about the public fallout from representing someone who many think is a bad person. Of course, this is the way that defense attorneys should act - they shouldn't be thinking about what society feels about them, they should be focused on the representation of a client.

When I first began working as a public defender, someone put my priorities in order for me in a way I've never forgotten: #1, bar card, #2, client, #3, society.

Thus, you do nothing to jeopardize your bar card while representing a client, but you don't worry about what's in society's best interests when representing them either, as long as you are following the law and not putting your career in jeopardy (I'm sure that I will get plenty of questions throwing out hypotheticals of when I'd hurt society, maybe someone can come up with one that I'll recognize as an exception, you're certainly free to try).

This brings me back to Peterson. I respect Geragos and the work he is doing for Peterson, and maybe he really believes that Peterson is innocent, I've certainly come to that conclusion after meeting a client and working my way through a trial (I've been thoroughly convinced by my own closing at times, only to be crushed the jury was not equally convinced). That being said, there are a few things that look bad on their face for Peterson. I should say, I know little about the detailed facts, and I haven't followed the trial that closely, so there clearly could be good explanations for some of these problems facing Peterson.

1 - How is it that her body is found 80 miles from home, and 2 miles from where he was when she disappeared? This is obviously the linchpin of the prosecution's case (they waited until they found her there to charge him). The only explanation I can think of is that by widely publicizing his alibi to the rest of the world, rather than keeping something like this secret so as to prevent others from using the information in some manner, the police allowed the killer to move her body from the place they had hidden her and put her in the bay so that suspicion would invariably fall on Peterson if they found the body (in contrast to what would have happened if they found her in a shallow grave outside of Modesto).

2 - When they find the body, he hung out in San Diego as if nothing happened, and waited until the news of the DNA match was made public. This is an argument where I have to argue someone's emotions, which is harder to do, since everyone responds to tough situations differently (for instance, all these "shrink" cops who feel they "know" he was acting strange on the night of the disappearance - give me a break, I don't put much credence in that testimony). This seems different to me, though. Assume we know he didn't kill her, and that he's truly distraught over her disappearance and wants to find her more than anything. What would you expect him to do when they claim that they have a potential body? If it were me, or any other reasonable person, I would expect that you would immediately fly up to the bay area and go to where they have the body to try and assure yourself that your wife and child are not dead. By not appearing to show any concern about this, it looks as if he knew that the body was hers, or at least he knew that she was dead and that he didn't need to act immediately. Now, maybe he was in contact with the police, maybe they told him not to come, and that they would let him know the second they knew anything, but even still, I can't shake the feeling that this is something just about any worried husband would have done, regardless of any police admonition not to do anything.

I'm sure as the evidence comes out, more things will become apparent. Supposedly he claims she was wearing certain clothes the day she disapppeared, and they found her in clothes consistent with what she wore the day before, when others last saw her alive, supporting the theory that he killed her the night before and disposed of her body the next day. I don't know about that as very strong evidence, I just think of my wife and the way she changes clothes, or the lack of quality, comfortable clothing she had in the last months of her pregnancies, and I think anything's possible there.

Furthermore, Geragos may have a point about the baby being born alive, disproving the notion that he could've killed her. Then again, it's possible that he beat her to death, which caused the baby to be born, and he then killed the baby as well. This could easily be a double edge sword, because jurors would probably feel much better disposed to voting for death if it is shown that he first killed his wife, then killed his (living) child.

All I have to say is that Geragos has his work cut out for him here. This is why they pay him the big bucks, and I just sit here and blog for free.

Lying Gang Experts

As many of you know, gang "experts" (cops who make money by calling everyone they meet - except prosecution witnesses - gang members) piss me off more than just about any other type of cop witness.

Yesterday took the cake. My client has just about no record (certainly nothing gang related), has told the police on numerous occasions that he's not a gang member, but he grew up in the hood and hung out with plenty of them, and has gang member friends. His dad was once upon a time a gang member (but not since the my client was just a few years old).

Police expert: I believe he is a gang member because I saw him 4 years ago at a location frequented by gang members (1/2 a mile from my client's home) and he had a nickname (given to him by his dad when he was an infant). Therefore, in my opinion he is a gang member. My questions (in 3 weeks, when I get the transcript, I'll post the actual questions so you won't think I'm making this stuff up, you tell me who the criminals are here): did you ask him if he was a gang member? No, in my experience gang members lie about this. How do you know they lie about this if you don't ask them? They've lied to me about it, I have asked them. Why didn't you ask him if he was one? I already knew, I didn't need to ask. Did he have any gang tatoos? I didn't see any (he doesn't). Did he have any particular gang clothing on? I don't recall any.

The best part, the officer gave some vague time where this happened, implying it was in the last year or two. I happened to have all Field Interview (or FI) cards from everytime police had ever contacted my client, including this officer's FI from that time. What did the FI say? It took place 4 years ago, no mention of gang location, no mention of talking with gang members, NO MENTION OF GANG INVOLVEMENT OR TIES, nothing at all but a contact for no reason at all.

The final curtain was when the detective took the stand and spoke about the search warrant executed at my client's house. Detective, did you find any gang related items at my client's house? No. No gang writing? No. No gang attire? No. No guns? None. No gang pictures? Well, there were a few pictures I thought were gang related (these pictures were pictures of his father, his brother, and a family member of theirs in prison from prison). So there was actually nothing gang related about those pictures at all, was there? No.

These lies are the kind of lies that piss me off. When we talk about the threat of facism taking place in this country, and abuses from the Patriot Act, all you need to do is look at the moral and intellectual dishonesty that takes place every day in our courtrooms from these gang "experts" to see what kind of trouble we're in on a national level.

Well, right wingers would say, this would never happen to anyone but those scumbag gang members, so screw them. First of all, this client is not a gang member, he is being tarred as one due to his being a poor minority living in the hood.

Secondly, consider these cases: Richard Jewel (purported Olympic Bomber). How many people had spoken about how he perfectly fit the profile of a bomber after the FBI arrested and smeared him for life when charging him with the Olympic Bombings in 1996. Or, more recently, Brandon Mayfield, Portland, OR area lawyer arrested (on a material witness warrant!!!) for involvement in the Madrid bombings 2 months ago. The FBI refused to listen to Spanish police when they insisted that Mayfield's prints did not match those found near the scene on the bag containing explosive devices, and some dozen FBI experts swore the prints were the same. But here's the kicker, they searched his house and found, among other things suspicious items like Muslim writings and Spanish Documents. The FBI called the items Spanish Documents. What were they in reality? His kid's Spanish homework.

Why is it that some law enforcement officers get so excited about solving a case that they are willing to be so dishonest in their descriptions, to call spanish homework "Spanish Documents," or to call otherwise innocuous family photos "possible gang-related photos?" I don't know, but I know it proves you cannot give the government unfettered power, because they simply cannot be trusted.

People ask me how I do this stuff, all I have to say is that these seemingly absurd procedures protecting people, things that we take for granted like Miranda, search and seizure, rights to speedy trials, and everything else that the public bemoans, are the only thing that separates us from becoming Venezuela under Chavez, or Russia under Putin, or America under some tinpot dictator like I'd expect an unfettered John Ashcroft to be. God help us if we ever let these protections out the window, because they don't only protect "scumbag" gang members, they also protect do-gooder security guards working in the Olympic Village and small-time family lawyers who committed the unspeakable crime of converting to Islam. And they protect me and you.

Well, I got way off topic there, but I just had to vent a little.

Blogger Patterico (a DA in LA County and another conservative for those of you who think I only read liberal tomes) has an interesting discussion going on about a proposed amendment to California's Strike law. There is an initiative that will probably appear on California's November ballot to reform 3 strikes law to only apply to serious or violent felonies. Right now, if you have a conviction for one prior enumerated offense (I hesitate to say serious or violent offense, even though that is the title given to them, since so many of them were just incredibly minor bullshit cases that pled out for next to no time in an era before the ramifications for a conviction to these offenses became so severe), your sentence on the present felony (even if as minor as possession trace amounts of drugs or petty theft) is doubled and you have to serve 80% of your sentence before being eligible for parole. If you have 2 prior enumerated offenses, your sentence on the present case is life in prison, with no parole eligibility for 25 years.

I have long held that these laws, when broadly applied as in California, are absurd. My tongue in cheek response to this is to make everything a strike, including misdemeanors, and just stick 10 million people in prison instead. I posted a comment saying that, but some people weren't used to my sense of humor (not well conveyed in print, of course), and took humbrage to it.

My point is this: in older days (like 200 years ago), all felonies were punishable by death. At some point, society determined to make punishment a graduated affair (except in countries like Iran and Saudi Arabia, where petty thieves can have their hands chopped off, or homosexuals are beheaded). This continued for a couple of centuries, until people like Richard Nixon realized that you would not lose many elections by calling for longer punishments for crime. People don't realize this, but Martha Stewart, who people are talking about getting a year or two in prison, is actually looking at maximum of 20 or more years. Everyone says this will not happen, but this is how the crime is punished.

Now Martha Stewart is smart, and she figured early on that the penalty for her committing the crime she did was worth the risk of doing it. What if it was punished by death, or she knew she would get 25 years for doing it? There is a very good chance she wouldn't have done it. Do we assume that no one would ever do it again? Of course not, people motivated by greed or desperation (in her case, greed) will always resort to crimes of opportunity. The question is what would've happened if she did the crime and was looking at death instead? You can bet that in these run of the mill securities crimes cases, witnesses would suddenly start disappearing, murdered. When the police come in with search warrants to these cases, they may be met with guns.

This has certainly happened in California with 3 strikes. Despite a general, nationwide fall in crime (which has included California), police officers are facing even more danger all the time. Did you notice when high speed chases became so common in Los Angeles about 10 years ago, well that's when 3 strikes started. LAPD had gone many years without having an officer murdered in the line of duty. It has happened numerous times in the last decade, most recently with the killing of Officer Lizarraga in South Central last year. Why does this stuff happen so much here in California? I believe that part of it is related to 3 strikes. If people think that they are facing life in prison, they will either not commit any crimes, or make sure they get away with it if they do.

This means that perhaps you dissuade 80% of the population from committing crimes, but the 20% that commits crime will now commit ever more violent crimes. They will ensure a lack of witnesses, that they don't get caught, and things of the like. Ratchet it up even higher, and you'll stop even more people from committing crimes, but those who continue will become even more hardcore.

Imagine that speeding was punishable by life in prison. Just about everyone would stop speeding (a good thing), but those that continue speeding would be inclined to ensure they do not spend their life in prison, so they would make everything more dangerous for everyone else - witnesses, fellow drivers, police, pedestrians, etc.... Afterall, you give them no incentive not to react this way - what are going to do if they kill cops, sentence them to more life sentences? Kill them? They already accept death as a distinct possibility. Torture them? Pluck out their fingernails? Draw and quarter or impale them? Let's be reasonable, the way you discourage greater crimes is to graduate your punishment based on the crime, and not to respond with a blunt instrument like life in prison for ever more offenses.

I found a new blog that I feel is worth reading. It appears to have a right wing bent (at least, their links are mostly right wing links, and I got them from a right wing site, but I haven't seen any overtly right wing screeds in their like some of my left wing screeds). Politics aside, they have good information on different legal happenings down here in Southern California, and they are worth a look. The blog is called SoCalLawBlog, and they're a good resource.

One of the cases that they've talked about is the Haidl rape trial. For those of you who don't know about the Haidl case, go to their list of coverage, or read on for a very short synopsis. The details are not of as great an interest to me as some of the things that have gone on legally.

Essentially, 3 upscale suburban boys (they were all under 18 when this happened), including the son of one of the top people in the Orange County Sheriff's Department, videotaped themselves having sex with a girl (also under 18) who appeared to be asleep or unconscious. They had sex with her, and they also put objects into her body such as pool cues and things of the like. I don't intend to tittilate, so I'm not going into too many details. Read the articles for more information if you like.

The case is in trial right now, and the defense lawyers have been hammering away at the credibility of the girl, claiming that she had given consent for the boys to do this, that she faked unconsciousness, that she had had sex with them on numerous previous occasions, and that this type of activity was typical for them. Fair enough.

But, I have to say, I think that at times, the lawyers have gone too far.

Remember, we are advocates for our clients, but not necessarily for their actions, or against their accusers. There is a fine line that we have to walk in advocating for our clients, and I wince when I hear people go beyond the line. What is the line? Not totally clear, but I heard some of the press conference by the defense lawyer who has been all over the papers, and what I heard made me upset. He called the girl a manipulative little liar (perhaps fair enough, remember, you can comment on the evidence without becoming a party to this whole thing), and said that it was clear she had poor morals. There were comments about her sexual activity, and how that reflected poorly on her.

Let's be clear, this case is not about sex, it is about forcing yourself on an unwilling participant. To the extent that sex is what you are forcing, clearly the prior sexual relations between the victim and defendants are relevant. Perhaps even her prior sexual relations between her and others are relevant as well (although not legally relevant, thanks to the rape shield laws, more on that stuff in another post). But to call into question her morals? This lawyer is representing people who video'd themselves having sex with someone who, at the very least, pretended to be uncounscious. They put objects into her body, they had group sex with her, they are in no position to preach morality. Their lawyer should know better and not do that either.

What he did, in effect, was to take a position in contradiction to his client's position. His client could never get up and scream "she's an immoral liar!" Not because it's illegal, or impossible, but because he would be rightfully villified for doing so. I don't believe a lawyer should become a mouthpiece for someone to say what that person would never have the guts to say. This is what happens in politics, where politicians don't want to be seen as negative, so they have their attack dogs go out and make the negative, venal comments, while they remain "above the fray." The day that lawyers, in zealously representing their clients, go about doing the same thing is the day we cease to be a representative of the party, but a party to the action as well.

Go ahead and say she's lying, point out her inconsistencies, show bad things she may have done, but don't become a sermonizer on the virtues of the people you are in litigation against.