The rantings of a Public Defender constantly fighting against society's pervasive Police Industrial Complex. Enjoy the unique perspective of one whose life's work is to fight the system through the system.

Thursday, May 26, 2005

PD Liable in Rampart Frame-ups

I'll post more on this tomorrow. This is outrageous, though. Jury found a PD 100% liable when the defendant was framed by LAPD. No liability apportioned to the cops or city. Of course, when she tried the case, the judge shut her down and prevented her from mounting a real defense, but of course, the court and DA are both immune, so take your best shots at us PDs.

UPDATE
Here's some background on this case, and why it's so outrageous.

This stems out of the Rampart scandal in Los Angeles. In that case, Rafael Perez was caught stealing cocaine from an evidence room to resell it. After his first trial hung, he offered up a bunch of information on his fellow officers in the anti-gang unit he served in (Rampart Crash) to get himself a deal (don't think his snitching did him all that well, his offer was 7 years, serve 3 1/2, snitching got him 5, serve 2 1/2, and ended up serving far more than that). He told stories about planting drugs and guns, making up cases against people, framing defendants, lying in court, even killing people. Most of what he said was corroborated. From the very start to the very end, though, the LAPD and DA's office sought to contain this as narrowly as possible, and they succeeded, so that it's basically been forgotten. When a few of the officers involved were brought up for trial, the DA's office did such an abysmal job of prosecuting (essentially trying the case with one hand behind their back and the other holding their nose). The Judge in the case, Jacqui Conners, had been publicly humiliated by Perez when he admitted lying on a trial in her court where she had recommended him for a citation for his great work. She bent over backwards to give the officers the fairest trial she's ever given a defendant, even granting them a new trial after 2 were convicted. The new DA buried the case for a few years before finally dismissing it instead of retrying it.

Despite all the claims that this scandal was limited to just Perez, or Perez his partner and a few bad cops, it's evident that it involved many more. One officer from the unit, while the scandal was erupting, began dealing drugs and formed his own little crime gang after he was transferred somewhere else. He was arrested trying to buy a bunch of kilos of coke near the Mexican border, was found to be involved in other robberies and a murder, and is now serving life. He was one the so-called "clean" officers, according to the police and DAs who buried this case.

The most sensational case involved Javier Ovando, who stumbled into an empty apartment Perez and his partner Nino Durden were using as an observation post. When he did, they both shot him, then planted a gun on him and claimed they shot him in self-defense. He's now partially paralyzed. They had him charged with assault on a cop with a gun, and he was eventually convicted and sentenced to 23 years in prison. Perez claims that it was his guilt over that case that led to him turning snitch, that he had vowed to himself that he wanted to get this guy out of prison at some point in his life.

The lawyer who represented Ovando was a PD named Tamar Toister. When faced with the lying Perez and Durden, her client was convicted at trial. She fought the good fight, but the judge screwed her left and right (he wouldn't even give her a continuance when she claimed she needed more time to investigate), and she lost the case. Hey, big surprise, lying cops got someone convicted.

As much an outrage this was, it is an even bigger outrage that she was found 100% liable for Mr. Ovando's predicament, as if the police who shot him, framed him, and lied at his trial had nothing to do with it. How, exactly, is someone supposed to represent someone when lying cops can expose you to unlimited liability? And, the fact is, as much as we bring this stuff up, the DAs still pooh pooh our claims of lying cops, Judges still refuse to call a cop on lies, and juries still find people guilty even though it's obvious cops were dishonest.

Man arrested for wearing mask in public

Incredible as it may seem, it is illegal to wear a mask in public in West Virginia. When I talk about the pervasiveness of the police industrial complex, this is exactly what I'm talking about. The police note that tinted windows are also illegal, as they hinder law enforcement.

This, of course, is the line given all of the time now - it's a different world since 9/11, or things are the same today as they were in past generations, or we're not as safe as we used to be, or people do worse things now....

No, the excuses are the same, the actions are the same, the firepower may have gotten worse, but the impulse for control over individual's actions, to prevent their freedom in the name of "safety," is as old as this country. Ben Franklin, in his famous comment, said it then, and it applies with full force today - those who would sacrifice liberty in the search for safety deserve neither (paraphrased, of course).

Well, let's go down this road, don't doors and walls also prevent law enforcement from doing their jobs? Purses? Backpacks? Cars? Why have a Constitution in the first place? Why not scrap it all, freedom is messy anyways. Look how much safer the Soviet Union was under a dictator like Stalin than under a "democrat" like Yeltsin or Putin. Maybe we should give up all of our freedoms. Conservatives have been saying for years that we have too much liberty in this country, especially when criticizing the Courts for "granting" rights to people. Well, here is the flip side. Exercize you freedom and you go to jail.

You better hope he has a good PD representing him.

Thursday, May 19, 2005

Great Public Defender Rant

I guess when you begin writing about a subject, you may begin to fancy yourself pretty good at some point, and get a little resentful that others are out there doing a better job than you. I can't say I'm totally resentful, and I try not to have any illusions of grandeur, but I just found a post that bursts any bubble I may have. This post on Craig's list is a rant from a Public Defender that is just golden. Lest any of you DA's out there like Patterico really think that we're all just true-believing bleeding hearts, here's one you can read to gain an insight into what really goes on in our heads. Make sure you read the last line, it's pretty germane to the point the person makes, and to our feelings in general.

Thursday, May 12, 2005

Something non-legal for a moment

Alright, I know it has absolutely nothing to do with criminal law, and little to do with law in general (except for that esoteric practice of law known as bankruptcy law), but I just have to mention it. Maybe it's my bleeding heart, Public Defender attitude of supporting the little guy against the big guys.

But....

Has anyone noticed the interesting juxtoposition between the latest headline about United discharging all of their pension obligations in bankruptcy court (and foisting them on the taxpayer), which will inevitably reduce benefits that they had promised to people who worked for them for lifetimes, in some cases, with the recent legislation to severely curtail the ability of working Americans to declare bankruptcy and ever claw their way out of it?

Imagine the scenario: The banks and credit card companies, which pushed so hard for this legislation screwing over ordinary Americans, have financial problems. They take advantage of the fact that bankruptcy laws are still highly favorable to corporations over individuals. They discharge all of their pension obligations through bankruptcy court, putting thousands of their retirees into financial turmoil, many of whom have to declare bankruptcy. Many go into debt to the same financial services companies that they once worked for, who also pushed for this new law. They are not able to discharge their debts in bankruptcy court due to the new law, so they have to work into their 80's and beyond, living destitute, to pay off the companies that screwed them over by discharging their pension obligations in bankruptcy court. At the same time, their Social Security has been cut because the huge costs of paying the deficits caused by the Pension Guarantee Corp, which went belly up due to the numerous companies discharging their debts in bankruptcy court, forced the government to lower benefits to social security, pushing these people even further into debt. I guess the only positive side is that it will inevitably boost the stock prices of these companies to do this, which will mean that when Social Security is privatised, people's benefits won't be cut too badly.

How in God's name is this moral? How can any legislator who supported this stuff look themselves in the mirror (I know, Democrats as well as Republicans supported it, and all who did share the blame. But, it took a newer and stronger Republican majority in Congress, as well as a re-elected Republican president, to push this law, which had languished for 8 years, through to passage).

Sunday, May 08, 2005

Zero Tolerance run amok

As the parent of a child about to go to kindergarten next year, and who intends to send his kids to public schools (no limousine liberal here), I have always hated the public school's fascination (and the public's at large, for that matter, since it spills over into my job, oh, just about every day) with Zero Tolerance.

This is the idiotic policy that says, for instance, we have zero tolerance for guns in school, so the fact that a 6 year old brought a toy plastic gun that's about one inch in size, and resembles a gun as much as a hot wheel resembles a car, we will expel that kid from school for the year, or kick them out of the district, or whatever other idiotic thing they'll do to the kid. All this does, of course, it ruin the kid's year, perhaps many years, and teaches them to become an idiotic automaton who can't think or act for himself or herself. I guess this is what conservatives generally want, since thinking people are questioning people, and we can't have that.

So we have seen the explosion of these "zero tolerance" rules with more and more absurd results. Kids expelled for having Midol, or aspirin, kindergarteners getting trouble for holding hands, or kissing someone on the cheek. High schoolers expelled or even arrested for writing fictional stories that involve violence. It's really crazy.

Comes now 11th grader Kevin Francois in Georgia who's (single) mother in Iraq got to make her monthly call to him while he was at lunch in high school on his cell phone (interestingly, they are allowed at school, you just can't use them). Sin of all sins, he answers, and even refuses a teacher's instruction to hang up (after all, his dad is dead, and his mom is away and he only talks to her once a month), resisting when the teacher grabs the phone and hangs up for him. They take him to the office for punishment, and now he's in even more trouble because he gets mad at them when they won't let him answer when she calls back (she left a voicemail message scolding him for hanging up on her when they so rarely get to speak). Now, he's been suspended for 10 days, the grades he's finally begun to bring up since his mom left are going to plummet again, who knows what irreparable damage has been caused to this person. All in the name of an idiotic, insipid, unthinking, unnuanced policy that allows people to feel good about getting tough on "evildoers."

I know, people will lambast me, saying that it's not Republicans that push this stuff, but I stick with my view, these are conservative values, as opposed to the tolerant, nuanced, thinking views of progressives or (don't say this word!) liberals.

Maybe the fact that they've gone and done something unpatriotic towards a family serving in Iraq will finally give some impetus to change this idiocy.

Wednesday, May 04, 2005

From Crim Law Blog - Injustice in Virginia (is that a redundancy?)

Ken Lammers at CrimLaw Blog has a chilling post about a person railroaded into a guilty finding in Virginia. He speaks of his disgust with what happened (essentially, someone was convicted of being an ex-con with a gun, when it wasn't clear he was an ex-con, that he had ever been convicted of a felony, when he had been a juvi in the original proceeding over a decade earlier, and where the judge and DA prevent letting the jury hear any of these facts). The defendant had actually had the store clerk where he was buying the gun call and get an assurance that the defendant was allowed to possess a firearm!

I read the story with a knowing horror. This is a prime example of the prison industrial asserting itself for the express purpose of getting convitions regardless of ethics or morality. How can they do something like this? Dunno, they do it all the time, though. The sad truth is that it is hit or miss for your typical defendant. A good prosecutor (and there are plenty) would dump this case, knowing that, even if true, it violates fundamental fairness to convict this person. A bad DA (of which there are plenty as well) would push to the hilt to give this guy 5 years in prison. Unfortunately, Ken Lammers was stuck with the latter not the former.

It's a good read, go check it out.

Where have all the good cases gone.....?

.....to private counsel!!!

Seems as if every time I get a good case, where the defendant has some really good issues and I think I can win at trial (or that he may be innocent, or at least not guilty of the charges), the conversation turns something like this:

Defendant: "Well, I really appreciate all the good work you're doing."

Me: "Hey, I'm doing my job, but it's the least I can do, and I'll keep doing everything I can for you."

Defendant: "So, my family and I were talking, and we thought we may go and hire a real lawyer to represent me on this case."

Me: (thinking - "You stupid piece of shit, all this work I've done and you're going go and hire a 'real' lawyer, as if I'm dogshit and haven't been doing anything all this time, and he's going to go and screw up your case since you're not going to be able to pay him much money anyways") speaking - "Do what you have to do, but I'm more than happy to represent you, and by the way, I am a real lawyer, and have probably done far more cases than any lawyer you're going to hire, but you go ahead and do what you think you need to do."

Defendant: "Uh, okay."

Next court date, some crappy lawyer substitutes in, looks at all of the work I've done and what I've accomplished, goes to the Defendant and tells him that he's going fight the case real hard, and look at all the stuff he's already done for him. Defendant, too stupid to know the difference, thanks God that he hired that private lawyer.

I, on the other hand, am still stuck with all of those piece of crap cases where the person is dead to rights on a life case, with a confession, videotaped murder, or some other appallingly bad set of facts that is going to leave me stuck in trial for 2 weeks sitting next to a guy that will make the jury so angry they'll come back with a verdict of guilty towards both him and me. The good case, however, along with all of the hard work I've done, will be in the hands of that private lawyer who's getting all of the credit for the work I did.

So I have one of those great cases, one where I've done a huge amount of work, where I know I can win the case, where the trial will be really fun - loads of strategizing and surprises, and sure enough, the sister calls me and starts talking about a real lawyer. Well, I'm crossing my fingers it doesn't happen. I just had a private lawyer substitute me out of one of those terrible cases the other day, maybe I have some kharma going. More later.

BTW - You may remember how much I hate that crooked "gang expert testimony" by cops just trying to say anything to get a conviction? Well, that will be a major issue in this case, and I'm just lying in wait ready to mess them up. Last time I was lying in wait, it worked on a special circumstance murder case. Maybe again?

Sunday, May 01, 2005

Sniff, sniff, Kafka would be so proud if he could see this....

I remember reading The Trial, by Kafka, and thinking (along with the other Kafka books I've read), man, this dude's bizarre. Mind you, the subject is easy enough, it's about a trial, and a suspect who is told he's suspected of a crime, but is never told what it is, never allowed to defend against it, never able to confont his accusers, and eventually, as the "trial" reaches its apex, is summarily executed.

When the story ended, I found myself thinking "huh?" That's sorta bizarre. Interesting fiction (having never grown up or lived in Eastern Europe in its heyday, and having never experienced a South American death squad firsthand, it was hard to visualize this stuff as being based at all in reality). But, the years passed, I finished law school, I became a public defender, and I began to understand a little about what Kafka was talking about. In some previous posts I've spoken about the corruptness of the system regarding law enforcement "opinion" testimony, and how absurd that notion is (it's basically, as a recap for those who haven't seen my rants on the subject, a statement that says "I believe the person is guilty, a gang member, a drug dealer, a whatever, based on my experience as a cop). But, I never could, even in my most refelctive periods, ever contend that the legal system was Kafkaesque, at least not in the sense that it was similar to "The Trial."

Well, Franz Kafka must be laughing out loud in his grave as he observes the United States, the beacon of freedom for the world, the light unto the nations, the center of liberty and justice, completely subverting all of those notions with the fight on terror. After all these years of us rejecting other nation's pleas that national security required them to crack down on their citizens, of saying that death squads were inappropriate (alright, maybe we weren't so emphatic about that if they were right wing death squads during the Reagan administration), we have been hit with one big attack on our people and thrown all that shit out the window like it just doesn't matter.

What am I talking about? Well, I've spoken about it before, the enemy combatant thing, the winking and nodding at abuses in Iraq, but it's just so much worse than we could've ever even though. Recent Freedom of Information document releases have shown that Kafka is alive, well, and enjoying a nice bottle of rum on the beaches of Guantanamo, Cuba (of course there is a reason conservatives have always opposed the FOIA). A simple reading of some of the transcripts compiled at this site shows how we are becoming much more evil in our fight against evil. It's like we're trying to pull all these nations closer to us and our ideal of freedom, and we finally decided, fuck it, let's just move closer to them, it's a lot easier than trying to make them crawl all this distance towards us. People not told what they're charged with. Being convicted of being a terrorist based on a similar name ending up in a computer of a terrorist. Being in Afghanistan without papers. Being released from the Bosnian prison after the Bosnian Supreme Court found the person innocent of terrorism, and abducted on the (Bosnian!) jailhouse steps by Americans and brought to Guantanamo (of course, when it came time for the tribunal for this person, the US had conveniently lost any evidence that these guys were acquitted, even though it's been in the International papers numerous times). This stuff is just absurd. It's not only un-American, it's Soviet, it facist, it's pure evil. And it's being done in our name, as we try to exalt our system over all others. Hello, Kafka, can you hear me?

The latest that got me going was the article in the NYTimes magazine this weekend that talks about the Iraqi anti-terrorism squad created by the US in Iraq. Apparently, they're using on of our former heros who trained the El Salvadorian military (they only massacred 70,000 out of a population of 6,000,000 in ten short years, but don't worry, these military leaders insist that there were no improprieties there, or in Iraq now). Read the article for a slightly different perspective, since this writer actually sees the Iraqi commandos beating and terrorizing (often innocent) arrestees under the watchful, and not terribly intervening, US eyes.

As I said, Kafka must be loving this, but I'm sure not. Is it too much to ask of our government that, in the pursuit of evil, we don't become that which we are trying to destroy. You know, it's not a great victory over evil if, at the end of the day, we have become more like them than we were at the start of the fight. I'm quite sure that the US wants to make the world more like us, I just wish that we weren't making it so easy for the world by becoming more like them in doing so.