How Easy it is to be a murderer in California

There is this case that has been mildly captivating Southern California lately of a 13 year old boy who hit his good friend's older brother with a baseball bat after the older boy either teased him or bullied him. He hit the boy once in leg and once in the head, and the older boy died. The 13 year old was just sentenced yesterday to the maximum he could get in California - serving in the California Youth Authority (CYA) until he is 25 years old.

There are 2 things of interest to me here: One is the fact that he will get the maximum penalty and serve for 12 years with the very worst youth in California (and when I say the worst, I mean it, CYA is notorious for being a vicious place to stay, a veritable incubator of later crime. I can't tell you the number of clients I've met who managed to turn from generally benign unpleasant folk, to truly terrible after a nice stint in CYA). By all accounts, this was an isolated incident in which the boy lashed out at an older and much larger kid who had been something of a bully. The defendant was otherwise a good student, teammate, and person who screwed up (royally) one time only. I think that it's clear he will never be a good person again, and that likely would not have been the case if he didn't go to CYA. The thirst for revenge, for even one isolated incident, was too great to look past what was in society's best interest. Contrast this with a case where someone takes a gun and sprays it at someone, or has a long history of gang involvement and generally anti-social behavior. This person is not like that.

What is more interesting to me, though, is the long transformation of California law to ensure that more and more people are held responsible for their actions in criminal court, and as murderers, rather than as committing lesser crimes such as voluntary or involuntary manslaughter.

By all accounts, this kid did not try to kill his friend's brother. By all accounts he was either trying to hurt him in revenge for teasing (before you yell at me, I agree, that's not allowed and should be punished), or using the bat against a larger bully in an inappropriate manner (since he first retreated and then returned with the bat). Either way, it is not like he walked up with a gun wanting to plug a few shots into him and kill him. However, in California, you don't need to intend to kill someone in order to be guilty of murder. In fact, you don't even need to have the thought anywhere in your mind that someone may die from your actions.

In California, there is a principle called "implied malice," which says that if you do an act that is inherently dangerous to human life, and someone dies as a result, then you are guilty of murder. The best example of how this should be applied is if you decide you want to go driving on the sidewalk to avoid traffic, so you do, and kill a few people. Clearly, driving your car into pedestrians will kill them, you and anyone else would have to be aware of that, so even if you didn't want to kill those people, you are still guilty of murder under the "implied malice" theory.

Of course, like all good theories that California prosecutors, judges and politicians have gotten their hands on in their zest to make as many people murderers as possible, the theory has mutated into absurdity. Just think about how far that can be taken. First, they started prosecuting multiple DUI offenders who finally killed someone with murder rather than gross vehicular manslaughter (a Watson murder). The theory, you clearly knew that driving under the influence was dangerous to human life, since you previously went to that alcohol class where they told you so. Thus, you were under notice, and now you're guilty of murder under implied malice.

Some prosecutors got upset when a drunk killed a particularly pretty or popular person, and expanded the law so that you didn't have to have gone to the class before. Watson murders have even been extended to where other traffic violations happened.

In a another famous case, 2 San Francisco lawyers were convicted of murder when their dog killed a neighbor (the judge reduced the case to a manslaughter, the Court of Appeals overturned the trial judge, expanding implied malice along the way, the Supreme Court is now going to rule on the subject). Obviously, they didn't want to kill anyone, but they were guilty of murder under the theory that they knew their dogs were dangerous, and anything that flowed from that they were liable for.

Now the Knollers (the dog bite defendants) were distasteful people, they adopted a white supremacist prison inmate and took in his dogs. But the way the law is going, prosecutors will have no problem bringing murder charges against any distasteful person for any death, because just about every death is foreseeable in some crazy way - in hindsight. Anyone can look back on a death and say "damn, I shoulda figured that was coming!" Drive 10 miles over the limit and someone dies - murder, why not? Cars sure are inherently dangerous. Throw your kid up in the air while playing with him and accidentally drop him? I know everyone does it, but hey, it's still dangerous, you're a murderer if they die. Play a prank on someone and pull a chair out from them when they sit? Alright, it's silly, and you probably shouldn't do it, but why not charge murder, after all, they could hit their head....

Think I'm being crazy? Here's a real one (again, distasteful defendants). 2 guys with a meth lab try to burn it down to avoid detection (see, I wasn't lying about distasteful), the fire spreads, the fire department comes along to put it out, they even bring along planes to drop retardant on the fire. Would you believe it, 2 planes collide, and someone dies in the crash. So these otherwise pillars of the community are now charged with murder. You see, when you start a fire, it's foreseeable that firemen will come to put it out, and it's also foreseeable that they'll send a plane, and if they'll send one, it's foreseeable that they'll send 2, and when 2 planes are in the sky, it's foreseeable that they will collide and kill someone. Therefore, these guys are guilty of murdering the pilots. I have to think that is among the more absurd cases filed. But, like I said, when you have distasteful people, the sky's the limit. The only problem, when their appeal is (invariably) denied, through some tortured reasoning like above, it affects everyone, since the next DA may decide to charge this against a real pillar of the community, or you.

The true face of the war on drugs

I know that this case is not typical, in that it involves prescription drugs rather than "illegal street" drugs, but far as I'm concerned, the issues are the exact same.

John Tierney writes today in the NYTimes about Richard Paey, a man who became disabled after getting into a traffic accident and who has been in severe pain ever since. As a result, he's become addicted to the pain killers that allow him to do things such as, say eat dinner with his family or go to his kid's school play. It also resulted in his arrest and conviction for, get this, drug trafficking (it is considered automatically drug trafficking since it was over one ounce, which was about one prescription, not because he ever sold, which the Florida prosecutors concede he never did). This evil, dangerous criminal is now serving a 25 year sentence, the mandatory minimum under Florida law (according to the DA, the sentence is probably not appropriate for his situation, but he deserves it since he turned down first a no jail offer, then a 5 year offer, so it's all his fault he's serving 25 years).

Of course, prior to these evil actions by this despicable person, he was a University of Pennsylvania law school grad (unable to take the bar due to his accident), and his wife is an opthamologist, so you can understand that it's important to make sure that someone like this stays behind bars as long as possible to keep our society safe (at least I guess that the prosecutor would say something like this).

Think about it, this case is the symbol of evil, not by the defendant, but by government. When this happens, it is not a free society, it is a barbaric society. Sure, the government didn't try to chop off his limbs for stealing bread, or behead him for blasphemy, but the difference is fairly minor.

Do you want to know the cruelest irony? Apparently he now gets all of the medication that he needs while in prison. They have him hooked up to a morphine pump so he's better medicated than he was on the outside. Our society imprisons people for relieving their pain in order to relieve their pain.

Absolutely sick and evil, I'm disgusted, but of course, it's not so atypical. The only difference is that here they nailed a white, upper middle class educated person rather than the boatload of poor minorities that they usually warehouse for the rest of their lives for doing little wrong.

Read more about the case here and here.

Anyone want to try and defend this idiocy. I'm sure there will be some hyper-conservative who will try to do so, but before you do so, don't forget about that conservative icon, Rush Limbaugh, who will certainly never receive a sentence of 25 years (conservatives don't do prison), but who probably committed far more insidious wrongdoing than this person did.

Is Life without parole the same as death?

Here's a hint, most defense lawyers would say that having a client executed is about the worse thing that can happen to you as a lawyer. But, I'm wondering. Do you think that most defendants would prefer the death penalty to life without parole?

I just had my first in depth conversation with my latest special circumstance client today. He is clearly a good candidate for the death penalty. Both the type of case and his history make him the class of defendant that the prosecution could decide to seek death on. Furthermore, with his history and his type of case, I really think that a jury could sentence him to death, no matter what I try to do on the case. My goal here (he appears to be dead to rights in the guilt phase due to DNA, but we'll see about that as the case progresses, but as it stands, he has a very difficult guilt phase, to put it lightly) is to save his life and prevent him from getting the death penalty, even if it results in a sentence of life without parole.

What does he say? He doesn't really care. His attitude is that he's spent much of his life in prison already, will probably spend the rest in one form or another, and why not spend it on death row. He's in his late 30s, and it takes 20 years to get people from court to the chamber in California, so what the hell, get death, what does it functionally matter? He's probably going to die a natural death in prison anyways. And life on the row is better than life in the highest security modules he would otherwise be housed in if he's given life without parole.

Of course, this is a nightmare for me, I don't want to have someone on the row. Logistically, even if he never goes to the chamber, I will have my life turned upside down trying to fight the case, and dealing with all of the obvious complaints of ineffective assistance of counsel, having to recreate the case dozens of times for the state and federal appeals, and the habeaus corpus proceedings. All in all, a death verdict would be terrible. And that doesn't even deal with the feelings it would cause in me of "what if," and "why not this," and guilt over my performance. No, I don't need this to happen to me.

But, is it better for him? How do I convince him to try for life over death? Is it in his best interest? Is this being selfish, all about me, screw what he feels?

Dunno.

Supreme Court Speculation

The news I've just heard is that after Bush touches down from his Scotland trip, William Rhenquist is going to announce his retirement, giving Bush, in effect, 3 appointments to the Supreme Court (Rhenquist is Chief Justice, so there would could conceivably be a situation where Bush has to appoint 2 new associate justices, and elevate one of the present associates to chief justice, which would require Senate confirmation).

If he has 3 appointments, then he has the opportunity to play to each of his "constituents," the nutty right wing part of the party, and the people who would've been considered nutty right wingers 20 years ago, but are now considered moderates (they may actually believe in evolution, for instance). The extreme right wing has launched a scorched earth strategy against an Alberto Gonzales appointment (he of the tortured torture memos), worried that he may oppose having churches write the laws of the nation. Ever since his opinion from the Texas Supreme Court in favor of striking down a law requiring parental notification for abortions, they have viewed him with suspicion. While I don't think he is such a great pick for the court, he would clearly be presented as a compromise candidate by Bush. It would also free him up to put a total right wing cultural warrior to the bench in the other open seat, and appoint Scalia or Thomas as chief justice.

However, I have another possibility.

I think that, while Gonzales is clearly a possibility, I wonder why I've never heard of this person mentioned as a possible appointee: Orin Hatch. Think about it, he would fulfill all of the requirements for Bush and all of his constituents: He's very conservative, he has tried to put through every Republican nominee for 2 decades, while surrepticiously trying to bring down Democratic ones (remember back in the 90s when Republicans would deny Democratic nominees that now-sacrosanct up or down vote? Hatch, as chairman of the judiciary committee, was a prime perpetrator). But, he is a Senator and, by all accounts, a well-liked member of that body (unlike, say, John Ashcroft, who was disliked by enough people on the other side that they voted en mass against him as Attorney General).

I think that Hatch would be a cinch, and he would be conservative enough for the right while being acceptable enough to Democrats in the Senate who would undoubtedly confirm him. Then, after that, Bush could appoint the right wing nut job and watch the Democrats attempt - and probably fail - to filibuster that nominee. They'd have their right winger in there, though, and that would be enough to push through the other one.

So, you read it here first, I think Orin Hatch is my sleeper pick for one of the Supreme Court openings, and he could even be the pick for chief justice, which would mean that Bush wouldn't have to fight to get Scalia or Thomas appointed as chief justice and put them through another confirmation hearing (remember, Scalia sailed through confirmation in large part because there was a long, acrimonious confirmation process in 1986 while elevating Rhenquist to the chief justice job, much of the 1950s, 60s and 70s (including Watergate) was rehashed while Scalia, one of the most reactionary justices in judicial history, was given a lifetime appointment. It's a good strategy.

Great book referral (I haven't read the book yet, though)

This book, Courtroom 302, comes highly recommended by Los Angeles County Public Defender Al Menaster, as a very true to life tale of what goes on in a courtroom over the period of a year in the criminal justice system (or industry, as Al Menaster calls it).

I have not read the book, yet, but if Menaster's review of it is any indication of how good the book is, then I am sure I am going to find it fascinating. Here's some of what Menaster writes about this book, and how it relates to our jobs as public defenders:

Reading Bogira's discussion of suppression motions made me think about police perjury. We know that the police routinely perjure themselves when testifying in motions to suppress evidence and confessions. Yet how often do we win suppression motions, not based on some defect in the police version, but because the judge rules that the police officer lied? I have never won such a motion, and even if you have, have you won more than five? Ten? So what percentage of police perjury is being called for what it is? One one-hundredth of one percent? Yet you almost never hear about this topic, and judges simply won't find that the police are committing perjury, even though they know perfectly well that perjury is routine. Take the Rampart scandal. We now know for a fact that the police lied about hundreds of cases. How many of those cases, when they were going through the system, were dismissed by judges who found that the police were lying? Exactly none. What better proof could there be that the justice system is simply not about justice and has little or no chance of actually achieving anything resembling a just result in any case?

Bogira's book is well written. He tells the stories of the many cases going through this one courtroom, cases typical of cases all of us are handling. This is an important book for all of us to read and reflect on.

Here's my final insight. I humbly submit that there is only one person in the courtroom actually trying to make justice happen. You know that's not the judge, the prosecutor, the police officer, the victim, the court reporter, the bailiff, or the interpreter. If you are not trying to make justice happen, no one is. Our challenge is to be the only voice for justice in an industry gone mad, an industry trying to push through cases at top speed and secure high conviction and incarceration rates, and which can't be bothered with trivial stuff like actual justice. We must fill that role, because no one else will.

Since this review has not been released to the general public, I am not at liberty to reprint more of it right now (this is reprinted with Menaster's permission), but the review has left me very eager to read the book, and for insight into the industry that is really the blunt object of what democracy is all about (the right of government to make people disappear, either temporarily or permenantly), this seems like it should be required reading of all who care about what kind of a country we want to live in.

Public Defender (and Private lawyer) dilemma

People often ask me the toughest part of being a public defender, or a defense lawyer in general. Surprisingly, the toughest part of doing this is the realization that you don't represent one person, but you represent thousands of people, not just now, but in the future.

When I speak to a DA or a judge about a case, I cannot do so with an eye only to that one case. If I were to present myself with the attitude that everyone is innocent, that every cop is lying, that every prosecution is tainted, etc, then I will quickly wear out my believability.

But, that is a tough thing to give up when you consider that every client is entitled to all of my best efforts, including a presentation on their case that presents them in the best possible light. How do you reconcile these two often very adverse duties? If I go into court and suggest that the clearly guilty person is innocent, a victim, or whatever, what will this do to all of my future cases when it becomes clear that he is not? If no DA can believe me, and no judge can believe me, then my ability to do my work well is severely curtailed. You can be a good lawyer and be trusted and respected by your opponents (I'll generally lump the DA and Judges into my "opponent's" corner).

Does this mean I have to kiss their collective asses so as to curry favor with them? I don't think so. I believe that they can see me doing my work hard, doing all of the things that need be done, without grandstanding on any particular case. They can realize that I have things issues that need presenting, and they will see me do it without a lot of yelling or shouting or personal emotional involvement. I believe that getting personally and emotionally involved is a bad way to represent your client.

But, in the end, there is that serious question, are you representing this client? Or your future ones? Or all of them? How do you decide which client deserves the ranting, yelling screaming and declarations of innocence on his behalf and misconduct on everyone else's? Is it fair that the lawyer decides this? Is it ethical?

One last thing, and I have brought this up before. Did Mark Geragos ultimately hurt himself for the future with his representation of Scott Peterson, as well as his appearances on CNN? I don't know, and I'm not pointing to anything in specific that I disapproved of, but this is an example. When you go so far in declaring the innocence of your client that just about everyone believed to be guilty, have you hurt your credibility for the future? However, was there a different way that he could've represented Peterson to the hilt without doing that?

Food for thought. I'm curious especially about the thoughts of other defense lawyer's, as well as prosecutors or any judges who may be lurking here. Also, any legal ethicists have any thoughts on the subject. As always, anyone else is free to comment as well. Please post a comment and let me know what you think.

Sandra Day O'Conner to retire

I can't think of any bigger event in the legal world that's going to happen than the retirement of Sandra Day O'Conner. This will have lasting reprucussions and will affect just about every aspect of current American life. Do we become a more theocratic state? Do the police have more and more unfettered rights to violate the privacy and homes of citizens in this country? Does more and more power get consolidated into the hands of fewer and fewer? Do the historic acheivements of minorities over the last half century get reversed? In short, her replacement is a referendum on everything our country stands for. Do we want to look back on the 1950s, or the 1920s, as some kind of a utopia that we have to try to recreate? Or do we recognize that the society we became after the New Deal has lead to our country being the strongest, most vibrant, and good countries in the world. Progressives point to the progressive era started by Teddy Roosevelt, and then the New Deal, started by Franklin Roosevelt, and finally the 60's and the 90's as the eras that have made us the greatest country in the world. President Bush will seek to appoint someone who believes the opposite, that those failed our country, and that we became the great society we are in spite of those eras.

The choice could not be ever clearer. Thank God that the fillibuster is still intact.