Monday, June 28, 2004

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.

Wednesday, June 23, 2004

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.

Tuesday, June 15, 2004

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.

Sunday, June 06, 2004

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.

Thursday, June 03, 2004

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.