The Mental Health System

I mentioned in my last post, a month ago, that I am doing a new area of criminal defense. I'm still a PD, but I now handle those defendants who have been found Not Guilty by Reason of Inasanity (NGI), and are being held within the web of the criminal mental health system. It is a frightening system, and that is being said by an attorney.

First, juries are notoriously skeptical of NGI defenses in the first place, so I don't get many "close" cases. I have two cases, out of around 90, where the defendant was found NGI after a jury trial. The rest pled (or did a "slow plea" court trial in front of a judge) into NGI land. The vast majority of defendants who went into NGI land by plea have done far more time than they would have had they simply worked out a deal in the first place. Let me be clear: I haven't seen one case where the defendant isn't at a minimum, mentally ill. I have a tiny number of cases where the mental illness is in remission, but they were clearly mentally ill at one time, and were almost certainly mentally ill at the time of the crime. Whether they were actually NGI at the time of the crime we will likely never know, but a fair number would not have passed muster in front of a jury. The irony is that the vast majority of my clientele would have done far LESS time in prison than they end up doing in the mental institution.

But that is only where the fun begins. Under the NGI system, defendants can be extended past their maximum commitment date (based on their plea) every two years. They get a jury trial in extension cases, court trial when it is a life case. But some of these guys are so institutionalized that they don't want a trial. They hate being in a mental institution, but they have no idea where else they would go. So they end up begging to admit the extension and stay in. And the social workers and mental health workers constantly prey on their insecurities and try to get them to admit petition xtensions, "for their own good." Those with a life sentence never reach their maximum time, so the trial they would get is very weird (PC 1026.2 - Burden of proof on defendant, and trial is by court, not jury) and difficult to win. Lifers do a lot of time, but then again, lifers in prison do a lot of time as well.

The cost to house defendants at one of the mental institutions in this state is $130,000+. Many of my defendants are nowhere near violent enough to justify being in a mental institution (some are, of course), but the state hasn't made anywhere else available to put them. We have something called the Conrep program, but its capacity is staggeringly, woefully inadequate for the demand. Plus, Conrep picks and chooses who they want, such that the people they take are really not worthy of such close scrutiny, but ought to be released outright. And the mental hospitals (like Patton State Hospital or Metropolitan State Hospital) simply never want to let to let NGI defendants back into the community outright - they steer their huge patient loads toward Conrep, even when Conrep has no place to put them (and no incentive to take them).

Even though I'd rather not simply release these guys to the community without some sort of outpatient treatment, there really isn't any. The choice is keep them in an institution that costs $130,000 per year, or nothing. The LPS system isn't any better, because many of those guys are also housed at Metropolitan State Hospital, but on a different wing.

I have people that I am trying to get out (and some that I have successfully gotten out) who really only need minimal help. But the mental institutions (and the DA, who fights with me on just about everything) won't let anyone go without a fight, and when they do let someone go they boot them in the ass on the way out. And there is a viciousness in this system that is frightening. I had a guy who had been in a mental institution for 13+ years and we did his trial. He was adamantly opposed to the idea that he was mentally ill (his attorney (me) respectfully disagreed), his case was nonetheless a decent case. His actions had been relatively benign on the unit, and he pretty much refrained from fighting and the like. But when we went to trial to fight his extension, at trial the state's doctors diagnosed him with an Axis II Anti-Social Personality Disorder, an affliction I like to call the "asshole diagnosis." After treating this guy for 13+ years, no one EVER realized he had an Anti-Social Personality Disorder until he decided to go to trial for the first time. THEN they stick him with that bogus diagnosis. Mean, very mean.

As I said, a broken system. I will post more later within a week.

Dennis Wilkins
The Guest PD Blogger

Has it Really Been THAT Long?

Awesome election results. The senate races in Alaska, Minnesota, and Georgia are all still pending. I hope that Lieberman loses his chairmanship of the Homeland Security Panel, but I won't hold my breath.

I haven't posted in months because I have been killing myself with work. It seems that I have been under fire from the moment I went into my new position, and I don't like being where I am at in my life professionally. Suffice it to say that if I didn't have a wife and children to support that I would have left the public defender long ago.

Or would I? You know, most of the private defense attorneys I have met are motivated primarily by money. Not that I wouldn't be as well if I were a private attorney. It is critical to get paid for what you do, and legal clients, ESPECIALLY in the criminal justice realm, aren't know for being thankful. I have had many a client promise to write a nice thank-you note after a not guilty disappear, only to reappear again with a new charge with no letter of thanks to be found. Only requests for more and better work.

Years ago I wrote a motion to suppress for this guy on a drug charge. I got the motion granted - the DA essentially conceded without filing a response. About two years later the same guy comes back with a new drug charge, but this time with a legal search. He starts lambasting me about how I'm not working for him, and how he was able to get a similar charge kicked out two years ago because "everyone knew he was falsely accused." Seriously - he didn't even remember that I was the guy who got his case kicked two years earlier. And he went on and on about how innocent he was. I asked him whether he was as innocent now as he had been then, and he said yes. That was the only really honest answer I got from him.

But the pressures and the options with being with the PD are sometimes very different than private work. A few years ago a private attorney I know admitted that he loved the way I could talk to my clients. I basically don't take any crap from my clients. I fight like hell for them, but I don't pull any punches with them either. People, especially criminal defendants, are basically terrified of going to jail/prison (who wouldn't be?) and they constantly want you to tell them whatever it is they want to hear. "Yes, I know that you're not guilty and we are going to win at trial, despite all that pesky evidence against you." I tend to be brually honest with my defendants, believing that it's beeter they know more than less about their defense. But he couldn't do that, because if he did, his clients would up and leave him and go to someone who says what they want to hear.

The private attorneys I talk to make it clear that they must engage in a PR offensive with their clients most of the time. So many attorneys can spin a line of BS about how good they are that what client can actually tell how good or bad the attorney is until the results (i.e. NG? Evidence suppressed? DA won't file? Etc.) are in? And even then, the worst case a defense attorney can get is a "sure winner" because those are the ones that hurt the worst to lose and make us all doubt that we know what we are doing.

I watched a 1538.5 five years ago where a private attorney argued with a straight face that the cop cannot follow a guy around for a few miles JUST BECAUSE HE LEFT A BAR AT 2:00 A.M. I mean, really, police can't just follow some guy around for a few miles because they leave the bar at closing time. "Was the car weaving, officer?" "Why, yes it was. And your client rolled the stop sign as well. That's why I wrote all that stuff in my report." "Your Honor, this just isn't fair, following my client home from a bar and waiting for him to mess up. It's a predatory practice, your Honor." Yes, the attorney really did argue that. Note that he never actually disagreed with the officer, he just got offended that the cop would wait at the bar until closing time and follow drivers home.

It just seems like, for the private attorney, the issue isn't whether the isues are good, but whether the client can pay.

That being said, having a boss and a massive caseload sucks. I want to help people, bt I also don't want to go to an early grave because I wanted to help. I don't want my epitaph to be: "Here lies a Deputy Public defender who could defend, he won his fair share of cases but in the end, he worked too hard for his pay, he was emotionally distant from his family at the end of the day, so to his widow the life insurance please send."

Great election. Let's see if Obama will close Guantanamo now. Let's see if I can post a bit more frequently now.

Dennis Wilkins
The Guest PD Blogger

Deeper Musings About Sara Palin

The polls are shifting not so well for Obama (Tremors!) and there are lots and lots of theories. I am swayed by the idea that Sara Palin is having an impact on the race. Conservatives love her, and they are rallying around McCain in response. I will give an additional critique of Palin to add to what PD Dude has said.

I am bothered that many people seem to treat Palin without ANY scrutiny. She is a fresh face in politics, she's pretty, and she has very little political history from which to judge her. She also has a multi-multi-million dollar attack machine behind her known as the GOP to get her message shaped. It is in this context that we should look at Palin.

First, how did we get here? McCain was probably desperate after looking at the polls and seeing Obama's convention speech, and he wanted a "game changer." You don't need to believe me. The reports are there that McCain was going to pick Lieberman or Romney, but he realized he wasn't going to win that way. He wanted someone who would energize the Republican base and who wouldn't detract. He went deep, deep into the bench (more precisely, he picked from the grandstands) to find Palin. She is a perfect example of the politics of today and how some people win who otherwise wouldn't.

Those of you who remember what happened to Governor Gray Davis in California will understand this. In 2003 Governor Gray Davis was deeply unpopular. California has been truly mismanaged for years, thanks to an uninformed electorate scolded by lots and lots of "special interests." Davis won re-election in 2002 through a deeply cynical maneuver: He should have faced Richard Riordan, a very popular Republican mayor of Los Angeles. But the problem with Republicans is that they won't elect those who fall a little outside orthodoxy. Riordan was pro-gay rights and pro-abortion, two really big no-no's for a Republican. But he was highly popular, and very likely could have beaten Davis. So Davis intervened in the Republican primary and spent millions of dollars trashing Riordan by saying those two things: he was pro-gay and pro-abortion. These two issues would have HELPED him in the general election, and they were pretty much the same positions held by Davis. But this was toxic to the Republicans. Bill Simon, a very conservative Republican, beat Riordan and then went on to lose. It was inevitable. Simon was great for the Republicans, but no one else liked him. Davis was tolerable by comparison and he cake walked to victory. The Republicans were pissed.

They got even when Davis kept stumbling. Davis got gamed by Enron and others, and he just couldn't bring himself to raise electricity rates (or undo the whole "open market" electricity thing that was being gamed by private electricity companies). People in California are, were, and have been pissed for a long time about how their government is so dysfunctional. Davis was a great example of what people hate in politicians. Although he is a Democrat, he mercilessly shook down the teachers union for campaign contributions, and even changed some of his core positions when the CCPOA (California Correctional Peace Officers Association) cut him some checks. He just didn't seem to have any moral center, and he didn't have many supporters when he needed it. He even took some money from energy companies like Enron, and this made it look like he was dragging his feet and costing California billions. Voters were mad.

The recall election in 2003 was the first time ever that a state public official was removed from office in California, although 17 other recall efforts had been done before. It was ugly. Davis was removed by a margin of 55.4% to 44.6%. Schwarzenegger was then elected governor (by the same ballot) with 48.6 percent of the vote. Schwarzenegger would NEVER, EVER have made it through the Republican primary process. Just ask some Republicans now how much they like Schwarzenegger and they will likely say that he is a "Socialist," or a "Democrat," or some other epithet that they hate. Point is, only through this extraordinary process did Schwarzenegger come to office.

One to Palin. Palin supports abstinence-only education, and that means what it says: no sex ed in the schools. This isn't just her opinion, but the opinion of someone a heartbeat away from the presidency. She has a 17 year old daughter who is now pregnant. Palin denied funds recently (she used her line-item veto and zeroed the funds out) to a home for underage, unwed mothers, particularly those suffering from domestic violence. Message: I don't want your kids taught about sex education on the government's dime, and I don't want poor unwed mothers cared for on the government's dime, but I, myself, have a 17 year old who didn't get the message and is having a child early. Palin's own pregnancy is the subject of some really questionable judgment about why she flew 8+ hours from Texas (after waiting hours to give a speech), then drove to a little hospital, all after she was leaking amniotic fluid (technically she was in labor) one month early with a special needs child (i.e. Down syndrome).

Palin lied about the bridge to nowhere (she advocated for it, then claimed in her first national address that she said "no thanks") and lied when claims to be against earmarks, yet eagerly sought them both as mayor of a small town and as governor of Alaska.

As governor, Palin sought to fire her sister's ex-husband from the state police (and if what he did was true, he no doubt is a jerk), then instead fired the head of the state police (also a jerk who probably deserved to be fired) when he refused to fire the guy she wanted to be fired. But then she lied about the whole thing and has repeatedly sought to have the whole investigation placed under the control of a three person panel that she controls.

Palin tried to get the librarian to ban certain books from the library because she thought they were offensive, and when the librarian refused to do so, Palin started the process to fire her.

Palin did a nasty speech at the Republican convention where she mocked Obama's time as a "community organizer" and essentially labeled him as a guy with no real experience. What chutzpah. But now she hides from the press, afraid of what questions they might ask HER about HER experience, and the issues above. Her surrogates in the media, meanwhile, blow smoke about legitimate questions about her, claiming that such questions are really about the fact that she has 5 kids (So what?), or that she is a woman and Democrats are being sexist (Wow!). Never mind the fact that she is simply a political unknown,and she hasn't been through the process to find out who she is and what she stands for.

And that is actually the point I was getting at regarding Schwarzenegger. He was a political nobody, with no previous office experience. He would have been eaten alive in the Republican primary because he is a "creature of Hollywood" and he is, in fact, a closet moderate. Republicans would have avoided him if they had the chance. Palin, on the other hand, would have been a darling of the Republicans. Until, of course, someone like Huckabee, or Romney, tore her apart for her clear lack of experience. Now she is the #2 girl to the oldest man to seek the presidency ever. McCain is 72. He's got a great chance of dying in office, and Palin will then take his place.

Hats off to Republicans for getting their "stealth candidate" into the ring. I have no doubt that, between her and McCain that Roe v. Wade will be overturned. I have no doubt that people will grow more and more pissed at their dysfunctional government. I sure hate to lose this round (and I hated losing when Bush took it in 2000 and 2004), but I know that, if McCain wins, the American people will be getting exactly what we deserve. Maybe not what we want, but definitely what we deserve.

Dennis Wilkins
The Guest PD Blogger

About the Aquittal of Former marine Nazario

Just before the weekend started, the federal jury in the trial of former Luis Nazario found the former marine not guilty. Good for him, I suppose. As a public defender, I enjoy hearing when the DA loses a case. I like it when someone is found not guilty, and a jury stands up for the rule of law. Whenever I hear a jury say (to me or to anyone else) "there just wasn't enough evidence to justify a guilty verdict," my heart skips a beat. That means that the jury was actually listening to the instructions about reasonable doubt.

Of course, the Nazario verdict cuts another way, a way that I am not fond of. He's a cop (temporarily former, but he'll probably get his job back) and he was a marine at the time. A jury will typically bend over backwards to help this kind of defendant. The minority defendant who claims that the rock of crack was planted on him by a bad cop will lose every time, but the former war-hero-turned-cop will win every time.

In fairness, the case against Nazario was actullay pretty tough to prove. Two witnesses, Sgt. Ryan Wheemer (whose confession during a background check started the whole thing) and Sgt. Jermaine Nelson, both refused to testify against Nazario and were found in contempt of court. Both still face murder charges in their upcoming courts-martial trials (although I seriously question whether there will be a different result). Both Wheemer and Nelson had been granted immunity, but neither was willing to rat on Nazario.

The witnesses called by the prosecution said that they did not see Nazario kill anyone, but heard the gunshots. There apparently were no forensics and no identities to back up the prosecution case.

There has been some discussion about whether civilian juries are "prepared to judge in cases of soldiers in combat" and I suppose that that is a fair question. But I have a different one: what on earth was the US Attorney thinking when he prepared and tried this case? I mean, really, how did he expect to get a conviction without eyewitnesses? Without forensic evidence? He knew these two witnesses would not testify. Why didn't he stop there? Without some serious proof that Nazario either killed people after they had surrendered, or that he had ordered their killing, why did he/she proceed?

The killing of people after they have surrenedered is, and always has been, a bad thing. I was and am against all the torture stuff that happened at Guantanamo and Abu Ghraib (and the whole Iraq War, for that matter), primarily because of the human costs and atrocities. But I also don't like the idea of doing those things because later, when our people are captured, I want to be able to raise some righteous indignation to possibly prevent torture of our people if and when they are captured. That's the whole point of the Geneva Conventions - our people have some hope that their captors will treat them better if they are afraid that the whole world will vilify them if they mistreat captured soldiers.

Long ago I was in the National Guard (and the Army before that) and there was talk of us being activated to go to the first Iraq War. It never happened (thankfully), and that war turned out to be very brief. But during that time my fellow soldiers and I had a great discussion about the Geneva Conventions. I remember one guy in particular saying he simply wouldn't abide by "any of that stuff" and that he would kill everyone, even those who surrendered to him. To him the Geneva Conventions was "for pussies." I think he was joking (he sure sounded serious), and I remember that some were swayed by his nonsense talk. I even quizzed what he would do if, like 20 or 30 Iraqis surrendered to him all at once. He said that he would kill all "those ragheads" (his words, definitely not mine). Again, some others were swayed by his nonsense talk.

Later, when Desert Storm turned into such a huge cakewalk (thankfully) and the Iraqis were surrendering in droves, I saw a tape where 1000+ Iraqis tried to surrender to a predator drone. I'm really glad that neither I, nor my fellow Guardsmen went to that war. Or any war, for that matter. Learning how to kill is important in the military. But learning when NOT to kill is also important. I think that this kind of testing, moral and otherwise, happens all the time in Iraq today. And it is also frequently present on our city streets, tested by police officers frequently.

Dennis Wilkins
The Guest PD Blogger

Musings about the Sarah Palin thing

It feels a little like shooting fish in a barrel, or piling on, or something of the sort, but there is just so many places to go with this Sarah Palin pick as McCain's VP pick, that I just don't know where to begin. And I just can't leave it alone, because some of it is too glaring. A few random thoughts:

1) Alright, I understand it, she's your precious little daughter, and we want to protect her privacy. So the question is, when she's 5 months pregnant and due in, when is that, oh, election time, WHY THE HELL ARE YOU ACCEPTING A BID TO BECOME VP KNOWING IT WILL BECOME A PUBLIC SPECTACLE????? Maybe you don't support your daughter that much after all.

2) Why are we hearing this stuff from Palin and McCain that her daughter has "chosen" to have the baby and will marry the father (at some undetermined time - 10 years from now?)? In their view, having a child is not a choice, it's a crime to abort! Why use the language of her having a choice when they feel that this choice is akin to taking your live child and drowning it in a bathtub. They don't lionize their children by saying "she's chosen not to kill her 3 year old child after losing her job and going on welfare." By suggesting that a choice exists, they totally contradict their language on abortion equalling murder.

3) So both McCain and Palin are running on this whole family values thing, like liberals are anti-American because they suggest that women can do equal work to men, and that they can choose to do so even after having children and starting families, or waiting to have families if that's what they want. And yet, we have this mother giving birth to a special needs child 5 months ago, her 17 year old daughter has clearly not absorbed much of what her mother has imparted to her on the "family values" front, and yet, Mom is going to decamp 8,000 miles to Washington DC for the next 8 years and leave her 5 month old to the care of who - her 17 year old pregnant and unmarried mother while she goes off to help a 72 year old man with cancer run the free world? Am I missing something here? What family are they valuing if not their own?

4) Finally, this one's too good. The Eagle Forum in Alaska, a right wing organization dedicated to ensuring traditional American values in our politicians, sent a questionnaire to Alaskan Gubernatorial candidates back in 2006. Gov. Palin was kind enough to respond. You can read her responses here on the Eagle Forum's website, but here's some goodies.

Regarding a woman's right to choose, Palin responded: "I am pro-life. With the exception of a doctor’s determination that the mother’s life would end if the pregnancy continued. I believe that no matter what mistakes we make as a society, we cannot condone ending an innocent’s life." good thing her daughter has "chosen" to have the child.

Regarding support for "abstinence-only" education instead of explicit sexual education, talk of contraceptive and things of the like: "Yes, the explicit sex-ed programs will not find my support." Obviously her daughter heard nothing of them either.

Regarding allowing parents to opt out of school curriculum's that they morally disagree with, such as, well, Sex-ed: "Yes. Parents should have the ultimate control over what their children are taught." I'm telling you, it's getting harder and harder not to think that this came from a Saturday Night Live skit or an Onion article at this point. I mean, obviously, she opted her daughter out, to these results.

There is so much more to talk about, it's almost not fair. The funniest thing is, most people won't care. They'll support her for whatever idiotic reason that they do, despite the fact that had she been a Democrat, they'd vilify her as a closet lesbian spear chucker who doesn't shave and wants to burn society's bras, imprison it's men, and establish worldwide female hegemony.

Don't worry, there will be more, I mean, she's only been the candidate for 3 days. But like I said, it won't matter, most Republicans would rather vote for a 3rd term for George Bush than vote for any Democrat (and this is essentially what they'll be doing when they vote for McCain).

A Not-So-Quick Rant on the Drug War in America

I watched Obama's acceptance speech last night and I thought it was wonderful. The best I have ever seen. Just now, I started thinking about a few things. How about a brief, and I do mean brief, moral discussion? About the drug war? Please, please, let there be some law and order types to sign on and discuss this.

I am opposed to the drug war. I believe that it has been a waste and that we are, essentially, punishing a vice crime that hurts very few. Obama, possibly the next President of the United States, has used cocaine. (Had he been caught in the wrong place doing exactly what he has admitted doing, we wouldn't be talking about him being the President of the U.S., we'd be talking about him being a resident of a penal institution.) He admitted that he had a problem with it. So has Rush Limbaugh, icon of the right. Oxycontin was Rush's drug of choice, but that's just a different version of a similar drug. Oxycontin is called "hillbilly heroin" because it is a cheap, pharma version of heroin. Similar effects and all that. Bill Clinton used marijuana, but he stuck to the lie that he never inhaled. Billionaire Henry Nicholas III, the promoter of the evil tough-on-crime Prop. 6 and 9 on the ballot in November has a video that was pulled from YouTube where he is using cocaine - he even admitted that it was him in the video.

There are people in prison doing larger and larger amounts of time, sometimes even 25-life or more, for possessing tiny amounts of these drugs. The punishments for meth and ectasy are set to increase more and more, primarily because "bad things happen when people do drugs" and "people should control their bad habits." Okay, then why did Rush Limbaugh beat his rap? Why is he still on the air espousing his "personal responsibility" crap? Who listens to him? What IDIOT thinks that he has ANY moral authority to talk about ANYTHING crime-related when he "beat the system," when he constantly claimed that drug users should be "just shot?" (He said it - if not that exactly, pretty close.) I want Obama to win, but how does he have the moral authority to talk about drug sentencing, when he was once a drug user himself. Note: I have ZERO faith that if McCain were elected he would do ANYTHING to change federal (or influence State) drug laws for the good (e.g.more compassion, less prison) - Republicans have run on tough on crime for a long time now.

How do people constantly justify not even talking about the drug war and its failure? How can we keep people in prison for decades, and keep imprisoning them, when people we know are addicted to drugs? Where is the disconnect here? Perhaps it is time to treat this as a war. In the Civil War, Sherman's strategy was to tear the heart from the Confederacy - burn everything on the way to Atlanta, burn the fields, and there will be no more resistance. When Germany invaded the USSR in WWII, Stalin's strategy was to burn everything when retreating, leaving nothing behind. Brutal strategies, but they worked. In war, you can afford to use scorched earth as a viable strategy, because everything is called for in war.

Well how about it, conservatives? Let's just make it automatic prison for all drug offenses, regardless of what they are, no treatment, no nothing. And let's start with YOUR CHILDREN if they get addicted to drugs. Your friends. Your precious Limbaugh. Henry Nicholas III. That conservative preacher that "went astray" with a male hooker and meth in his hotel room. How about house-to-house searches to get every last speck of drugs from our communities? How do you think it will it feel when your communities are devastated, like those of the poor have become? When your kids cannot get student loans or jobs because they had a drug conviction? Perhaps that is the only answer to these "tough on crime" types who refuse to admit that drug abuse is an addiction.

By the way, I am not of the opinion that someone who commits crimes while high should be "forgiven" or get a pass somehow. Commit a crime, whether high or not, and you face punishment. But I don't see prison, or jail for that matter, as an answer. Drugs are an escape and so many people use them. And when safe drugs aren't present, they MAKE UNSAFE ONES. People who cannot get a job, who do not see their future abuse drugs. People who have nothing to care about abuse drugs. Jail and prison don't change this.

But I suppose the real point is, WHY AREN'T WE HAVING THIS DEBATE? Why do the "tough on crime" types always win and prevent even the mere discussion of substance abuse laws reform? Why do we keep pouring billions and billions and billions of our hard-earned tax money into a failed prison system without even debating whether we should be punishing this conduct in the first place.

The exact same argument goes for prostitution, by the way. I am a liberal and damned proud of it, but there are far too many liberals in this state who constantly join with conservatives and everyone else to pass dumber and crueler laws, imprisoning more and more people. I have a pretty strong libertarian streak in me. I have children I love very much, and I don't want them to become junkies or prostitutes, but the best way to ensure they become good citizens is not to pass more stupid, cruel and expensive laws, but to make sure they have a better education, and the people around them have a reason to get up in the morning (like for, you know, a job). It is hard to respect a criminal justice system that we have built to breed disrespect.

I had to get that off my chest. The hypocrisy of our criminal justice system, and how it treats the poor and the despised, has been killing me lately. Whew - I feel better now.

Dennis Wilkins
The Guest PD Blogger

Only in California - Pregnancy is Great Bodily Injury

So California has a rule which says that if you commit a crime against someone and cause them great bodily injury, then you get an enhancement. The law says that it has to be a significant injury, and has to be intentionally caused. Here's the rub, while it only adds 3 years to a sentence in most circumstances, in the last 14 years, it has also made any crime a "strike" (you all have heard of 3 strikes, right?). It also forces people to serve 85% of their time if the allegation is found true.

So, as you can probably guess, prosecutors love this enhancement. And when they love something, they misuse it. Now, let's think of the way in which they can misuse this one: it requires GREAT bodily injury, so perhaps they could stretch the meaning of great so that every minor injury now constitutes great bodily injury; and it requires that the injury be caused intentionally, so perhaps they could try to extend accidents to "intentionally.

If that sounds absurd, or insidious, or something else, you are right, it is. It's also what's happened.

Just about every injury, no matter how minor, when blood is drawn, is now charged as great bodily injury. Get into a fight with someone and give them a bloody nose? Great bodily injury. Scratch someone and cut them? Great bodily injury. It used to be that the injury had to be significant. Now, no matter how minor it is, it is charged. And, since it is almost always a factual determination, no judge will ever dismiss a great bodily injury allegation based on insufficient evidence, so everyone charged with this must go to trial for it, no matter how minor a case it really is. Or, the prosecution can squeeze a plea out of someone in a bullshit case out of fear of going to trial. Very effective.

The other aspect, that it must be willfully and intentionally caused, has also been under assault. The best example of that is in the area of DUI accidents. Now, I'm no big fan of drunk drivers, but if you get into an accident, someone is likely to get injured. Can anyone say that this is an intentional causing of great bodily injury like stabbing someone? Do we really call these people violent offenders and give them strikes? And think about it, more than one person is likely to be injured in this situation, so while someone who shoots at a person may come out with only one strike, a person who gets into a car accident while drunk and where no one is significantly hurt can walk out with multiple strikes (meaning he gets a life sentence if he picks up a forgery or drug possession in the future) and a very long prison sentence. Again, I'm not saying I have some great love for drunk drivers, but let's call a spade a spade - unless there's some evidence they do it serially in some manner, it's hardly violent (potentially dangerous, sure, but violent?).

Now the California Supreme Court has just validated the latest absurdity - pregnancy is great bodily injury. I did realize that I caused great bodily injury to my wife when I got her pregnant for our two kids, but evidently I'm a violent felon worth of 25 to life. In the case at bar, some dude raped his step-daughter (not an action I advocate, by the way, I'm even willing to go out on a limb and call it evil), and got her pregnant. Now, if he is convicted of this, he faces 16 years in prison (and he has to do 85%), but if he causes great bodily injury (of course, this was originally intended to mean something like pistol whipping the person, or stabbing them, or beating them to a pulp) in a case like this, it turns into a life case. Now, again, I have no sympathy for those who bang their 13 year old stepdaughters, and if he really did cause her great bodily injury, and this is the law, the fine, give him life.

But, let's face it, these prosecutors basically said "I want to give this guy life even though the law doesn't call for it, so I'm going to make up some bullshit to get him a life sentence." And the Cal Supreme Court went along with it - absolutely incredible. Once again, it just blows me away the extent to which California Courts will go along with whatever absurdity some idiotic prosecutor comes up with.

The funny thing is if this was a civil lawsuit, where someone was claiming great bodily injury for becoming pregnant, the lawsuit would be thrown out as frivolous (especially if it was against some big business or corporate interest). But, if the only sanction is not money, but someone merely spending the rest of their life in prison, then whatever, let's suspend critical thinking.

I certainly like Biden more than Palin

Give me a break, does McCain think that Hillary supporters were so desperate for a woman that they'd vote for him if he chose one as VP? Even if she's anti-abortion? Even if, prior to her unimpressive 2 years as governor of Alaska she was a mayor of a town of 8,000? At least we don't have to hear McCain talk about how experienced he is for the job anymore.

Although, to the extent he didn't take a Dick Cheney type as his #2, that's always good.

I do like Joe Biden

I guess it's just the contrarian in me, even to a fellow PD. Sorry Dennis, I know he can be ponderous, and this really has nothing to do with strong policy or principle issues, but I do like him. Was he Obama's best choice? Who knows, there's others I might've chosen, but he certainly could've chosen much worse, and some of the names out there didn't thrill me. I'm happy, though.

All that matters is that Obama beats McCain. His VP doesn't matter much to me.

I don't like Joe Biden

There - I said it. I'm still going to vote for Obama, but I will do so less enthusiastically.

Biden, also known as the "Senator from MBNA" because of his overwhelming support for the credit card industry (and banks and insurance companies, etc.), is a rotten choice for a "change candidate" like Obama says he is. But especially as it relates to public defenders, Biden is an example of the consummate "tough on crime politician," at least when it comes to the poor, that Democrats have overwhelmingly embraced over the last three decades. There aren't too many dumb, cruel, tough-on-crime initiatives that Biden hasn't endorsed in his long career in Washington. Increased penalties for crack: check. Truth in sentencing: check. Increased penalties for meth: check. Increased penalties for ecstasy: check.

I suppose that I was hoping for more because Obama had a drug addiction in his younger years and the fact that he was a civil rights attorney at one time.

Still, beats anything McSame will ever do.

Dennis Wilkins
The Guest PD Blogger

Whoa - There is a GOOD Initiative on the Ballot

My last post was about Proposition 6, on the 11-4-08 ballot. It is called the "Son of Three Strikes," and it is bad, bad, bad. Well, there is another bad initiative on the ballot, and it is likewise bad. Proposition 9, also known as "Marsey's Law," was created and supported initially by Henry Nicholas, who gave more than $4 million to get the ball rolling. This is the same Henry Nicholas who bankrolled the super-bad Proposition 6, the "Son of Three Strikes." And this is also the same Henry Nicholas who is the Orange County billionaire former CEO of BroadCom who has been indicted in federal court for various things like providing drugs and hookers to his guests at various parties, and backdating stock options. Criminal justice issues must have weighed heavily on his heart when he was using cocaine in his home, caught on a withdrawn YouTube clip (which is concededly real, as Nicholas threatened to sue because it 'violated his privacy). http://articles.latimes.com/2008/jun/07/business/fi-nicholas7

But there is a GOOD initiative on the ballot as well. Proposition 5, bankrolled initially by George Soros (he was one of the funders of the 2000 Proposition 36 Drug Treatment Proposition that passed at the same time as Proposition 21, the Proposition that greatly increased Three Strikes) (but for only $1 - he's cheaper on these things than Nicholas, it seems), is a decent change in the law. Here is a description for it. My last link to Ballotpedia.wiki didn't seem to stick, so try this: I have linked to the main website. All you have to do is go to the encyclopedia on the left, go to California , then California 2008 ballot measures, and you can see Proposition 5, 6 and 9 there. Here is the general link to ballotpedia.org: http://ballotpedia.org/wiki/index.php/Main_Page Here is the link directly to Proposition 5:http://ballotpedia.org/wiki/index.php/California_Proposition_5_%282008%29 I hope that it works.

Here is their summary of what Prop. 5 does:

"Requires California to expand and increase funding and oversight for individualized treatment and rehabilitation programs for nonviolent drug offenders and parolees.

Reduces criminal consequences of nonviolent drug offenses by mandating three-tiered probation with treatment and by providing for case dismissal and/or sealing of records after probation.

Limits court’s authority to incarcerate offenders who violate probation or parole.

Shortens parole for most drug offenses, including sales, and for nonviolent property crimes.

Creates numerous divisions, boards, commissions, and reporting requirements regarding drug treatment and rehabilitation.

Changes certain marijuana misdemeanors to infractions."

My personal opinion is that the drug war is and has been an abysmal failure. I will write on this subject at a later time. But this initiative is an excellent start. The problem is that this initiative is in direct conflict with Propositions 6 and 9. I have serious doubts about how they can work together. If Prop. 5 and Prop. 6 pass at the same time, we will have the remarkable sight of seeing marijuana possession reduced to an infraction, at the same time that meth possession is increased to a straight felony. Bizarre.

And the idea that all 3 of these propositions will pass at the same time is not really unlikely. On March 7, 2000 the California electorate passed Proposition21 by 62.1% to 37.9%, which vastly increased the Three Strikes law and greatly increased penalties for youth offenders, especially so-called gang-related offenders. Later in the same year, on November 7, 2000, Proposition 36 passed by 60.8% to 39.2%. Now, in fairness, there wasn't as much legal interaction between Propositions 21 and 36 (and Proposition 21 won every close call in the courts), but the message from the electorate was clear: punish real criminals severely, but give drug simple offenders somewhere else to go besides prison. This sort of message could easily resonate with the electorate in November, but Proposition 5 is STARKLY different from Propositions 6 and 9. If all three pass (my prediction = they will), the chaos will be extreme and the result will be an even more screwed up criminal justice system in California than we already have.

There is also currently a technical challenge to Proposition 5 pending in court. We'll see how this works out. This is going to be a challenging election in California for criminal law issues.

Dennis Wilkins
The Guest PD Blogger

Here it Comes Again - the "Son of Three Strikes" - Prop. 6, is on the November Ballot

They are calling it the "Stealth Initiative" because no one, not even me, saw it coming. Here's an article on Prop. 6, on November's ballot: http://news.newamericamedia.org/news/view_article.html?article_id=d01148783101be65ceadfc3d57ee9944

Proposition 6 is called the "Safe Neighborhood Act" and it is a doozey. It is actually worse than Proposition 21, which expanded Three Strikes in 2001 and forever worsened an already horrible juvenile justice system in California. From a group called Ballotpedia.org: http://ballotpedia.org/wiki/index.php?title=California_Proposition_6_(2008), Prop 6 would do the following:

"Require new state spending on various criminal justice programs, as well as for increased costs for prison and parole operations. This funding would come from California's General Fund, reallocating funds currently spent on K-12 Education, Higher Education, Health and Human Services, Business, Transportation and Housing, and Environmental Protection

Deems any youth 14 years or older who is convicted of a "gang-related" felony as unfit for trial in a juvenile court, thus, prosecuting these youth as adults.

Necessitate that all occupants who are recipients of public housing subsidies submit to annual criminal background checks. If any occupant did not pass this criminal background check, the entire family would be removed from their housing.

Increase penalties for several crimes, including violating gang injunctions, using or possessing to sell methamphetamine, or carrying loaded or concealed firearms by certain felons.

Eliminate bail for undocumented individuals charged with violent or gang-related felonies.

Establish as a crime the act of removing or disabling a monitoring device affixed as part of a criminal sentence.

Change evidence rules to allow use of certain hearsay statements as evidence when witnesses are unavailable.

Require a 3/4 vote to amend.

Requires only a majority vote to add."

This is actually a HUGE change for California law. For starters, possession of meth now becomes a straight felony - no more misdemeanor meth cases. This, in itself, is huge. The flow of cases will now be very, very great. The description given above for 14+15 year-olds is incorrect, in my opinion. They only need to be charged with a gang crime to get booted from juvenile court. Imagine that - almost all "gang-crimes" allegedly committed by a 14-15 year-old will now go to adult court. And adult prison if convicted. You know, gang crimes like vandalism, car theft, or even misdemeanors committed by a gang member for the "benefit of the criminal street gang," which is pretty much the entirety of the Penal Code.

Here is the website against Prop. 6: http://www.defeatrunner.org/?p=home

Here is the website in favor of Prop. 6: http://www.safeneighborhoodsact.com/

This is bad, bad, BAD for PDs around the state. How come nobody knows about it?

Prediction: It's going to pass overwhelmingly, and then people are going to bitch more and more "why can't California pass a budget?"

Dennis Wilkins
The Guest PD Blogger

A Shout Out to DalyKos

This is my favorite website. http://www.dailykos.com/

I go there whenever I have a chance. DailyKos will keep you informed about all things political, and there is a fresh, progressive spin on what is said. There are multiple writers, not just the Markos Moulitsas the site is named after. And he has a truly progressive vision: Make government work for the ordinary citizen.

I thought I would pass this on. As my little girl (20 months) says to me each morning when I leave to work: "Day!"

Dennis Wilkins
The Guest PD Blogger

More Speculating about Phil Spector

Iona Trailer responded to my last post, and I was writing a response to her. But it got too long, so I decided to make it into a new post altogether.

I am not privy to any particular information about the Spector case - I only know what I read in the news. I agree that the only assertion about Lana Clarkson being depressed came from the defense. If she did commit suicide, it was a bizarre place and time to do so. But let's look honestly at some facts:

1) Her DNA is on Spector's, um, private parts. Only two ways it got there - one by force or threat, and the other willingly.

2) His DNA is on her breast (saliva). How did that get there? Again, either by force or threat, or willingly.

3) Her blood on the gun, but no blood or DNA of Spector's on the gun.

4) Gunshot residue on her hands, none on Spector. No blood on Spector (he could have washed his hands, so that can explain no GSR and/or blood on his hands - what about his face?), but two tiny particles of GSR on his clothes (which he didn't/couldn't wash), on his clothes 40 minutes after the shooting. Tiny amount of her blood on his clothes. Spector claims that he got her blood on his clothes when he was tasered by the police and fell into a little bit of her blood on the floor. The two tiny particles of GSR on Spector contrast with the abundance of GSR on Clarkson. BTW - blood spatter was hotly contested at the trial. The DA experts claimed that Spector had to be within 3 feet of the gunshot, and the defense experts claimed that Spector was up to 6 feet away. There were 18 itty, bitty drops of her blood Spector's clothes (some less than 1 millimeter in diameter). The distance is crucial: If the defense is correct, the Spector COULD NOT HAVE BEEN THE SHOOTER. If the DA is correct, then he could have been the shooter, but what about the lack of GSR on his clothes?

5) Gun was fired from inside her mouth. If Spector had fired that gun, where is GSR and blood on his clothes? It would be a LARGE amount of blood. There would be SOME GSR. Why GSR on her hands? She had to be holding the gun.

6) No Spector DNA under her fingernails. No other signs of struggle. Her tongue was bruised, but that likely came from the gunshot itself (gun kicks when it fires).

7) She accompanied him home from the club. Absolutely no force involved. He basically tipped her a LOT, and she came along. No one has contradicted that she was drinking heavily that night.

8) Spector looked then much like he looks now - a sad, old, wrinkled dude. What in the world would she be doing with him? That's enough to depress ANYONE.

9) There were a substantial number of emails where she outlines her depression and her alcohol and drug abuse.

I didn't know Lana Clarkson. I don't know Phil Spector. But I can say this: the physical evidence that he shot her after forcing her to perform oral sex on him (which is, essentially, what the DA is saying happened) just isn't there. In fact, the physical evidence contradicts that theory. Why wouldn't she scratch him? Resist? A tiny amount of her blood was on him, but if he shot her he would have been covered in blood. GSR (gunshot residue) is on both her hands, and heavily on her body, only two tiny particles on him. If he shot her, he, and his clothes, would have GSR. Why is there no GSR on his clothes? On his person?

I am not saying that what you say could not have happened. Phil Spector COULD have shot her. His MO and his statements certainly do support the theory that he shot her. But the science here just doesn't add up to it. There are simply too many problems. Spector did not wash his clothes - they should have been covered in blood and layered with GSR - only minute amounts of blood were found - no GSR.

There is simply too much reasonable doubt in this case, regardless of how odious a person Spector is. Nonetheless, I believe that the next jury will dutifully ignore these issues and find him guilty because he LOOKS guilty. And there just isn't any good explanation for how she got the gun from Spector's house without Spector knowing it and then shot herself. No wait, I know: She was depressed, so depressed that she became curious, searched the various drawers and cabinets in Spector's home, presumably while Spector was looking for his "wall of sound," and when she found Spector's gun she shot herself. Wow. I just solved the crime. :-)

Nontheless, it seems clear to me that, at the very least, Spector gave her the gun, or he threatened her with it and she took it. Then, it honestly appears, she shot herself. Manslaughter probably. Negligent homicide very likely (I'd convict on that, maybe). But 2nd degree murder? I don't see it. The next jury, I believe, will see it. But I don't.

Dennis Wilkins
The Guest PD Blogger

Speculating about Phil Spector

It's that time again. We have another celebrity trial coming up in southern California, and it's time to focus all our attention on this trial. Phil Spector will be on trial again in October, after an appellate court turned down his bid for a continuance. It looks like he is going to have a really tough time this go-around.

Some people think that attorneys, particularly prosecutors and defense attorneys, are have some sort of crystal ball and know what is going to happen in these cases. That's usually not the case. I personally have only a fair bit of knowledge from the case that I got from the last trial. But I have to wonder why it hung last time, and I have to admit that it seems like the case for murder is a LOT tougher for the DA on a closer look than it appears on the surface.

First, it is absolutely clear that Spector is a TERRIBLE defendant. He LOOKS guilty. Every picture of him has him scowling and looking weird. His haircuts deviate so far from what one could expect at Supercuts, and he always looks like he just ate a handful of pills followed by a fifth of Vodka. The 'scary-defendant-look' almost did in Michael Jackson, but Jackson had a great jury and a terrible victim and horrible victim's mother (for the prosecution, anyway). Robert Blake also had a great criminal jury and a horrible victim. Blake's civil jury was another matter (10 to 2 for the plaintiff), but Blake's testimony wasn't very good. I mean, when you explain that you couldn't have shot your ex-wife because, at the moment she was being shot, you were in the restaurant picking up the gun you left behind, there's a good chance no one will believe you. I was convinced in all 3 cases that the juries would find them guilty despite the evidence, ESPECIALLY Michale Jackson, all because of how the media portrayed them, and how their individual pasts looked.

In an older time in California, the Spector trial would be a slam-dunk NG. His past problems with women would have been excluded just about everywhere in California. But now, with Evidence Code 1109 (One of the "OJ Exception" amendments to the Evidence Code), virtually all 'domestic violence' testimony comes in in trials involving violence to women. Plus, judges are really, really conservative everywhere, and they look for reasons to let in stuff prejudicial to defendants. Add to that the fact that California appellate courts routinely rubber-stamp judges who let in such evidence, and you get the clear impression that the burden is on the defense to keep such stuff out, and it is a heavy burden indeed.

There are now six women who will testify, to various degrees, that Spector has a habit of inviting women into his home, presumably to get kinky with him, and then putting a gun in their mouths to prevent them from leaving. I have to admit that this is kind of troubling, from a defense perspective. I mean, really? Six women who will testify that Spector put a gun in their mouth and threatened them to prevent them from leaving? And the woman in this case died, unsurprisingly, from a gunshot in her mouth. What are the odds? It sounds almost picture-perfect - Spector plays the same trick and, oops, this time the gun goes off. 2nd degree murder, here we come. Add to this the fact that Spector clearly tried to clean up the murder scene. There is no good explanation for the fact that he showered.

Of course, the prosecution has serious problems with the idea that there had been a struggle - no Spector DNA under the victim, Lana Clarkson's, nails, and no Spector DNA on the gun, only the victim's. Likewise, there is a gunshot residue (GSR) problem in that Spector's clothing should have had more GSR on it had he been the one holding the gun when it was fired - he was simply too far away.

So why did the first jury hang? Possibly because two of the members insisted on following the law. Judge Fidler will be on the retrial, and he almost persuaded the jury to convict Spector the first time - multiple attempts to remove Fidler have proven unsuccessful, and if the DA can't get a conviction this time, then it was simply not meant to be. It couldn't get any easier for them.

Why did this case hang 10 to 2 the first time? First, no voluntary manslaughter instruction. That likely would have tipped the balance. This is a strongly possible, I would even say say the likely scenario: Spector goes through his threat-with-a-gun routine, something he is famous for (see the 6 women who will testify to this conduct). Clarkson takes gun from the weak, old, pill-and-alcohol-obsessed geezer and they talk. She is REALLY depressed, especially at the fact that she let this sad dude take her home, ostensibly for sex. At some point, she shoots herself, with Spector about 10 feet away or so. Spector panics, then does everything in his feeble power to clean up, and slips up a lot along the way. He feels guilty about what happened, and he says that he "might have killed her" to the limo driver, and gives something of a confession to the police. What we would have is a clear case of voluntary manslaughter, or at least negligent homicide. At a minimum, Spector gave a gun to a depressed woman, and that is the essence of negligent homicide.

But here is the twist, and here is where our justice system fails us. The DA COULD HAVE charged this likely scenario (in my mind, anyway), but they didn't. Oh, no. They had to have 2nd degree murder, regardless of whether it fit the facts. And on retrial they could just as easily add a charge (with a new preliminary hearing) of voluntary manslaughter. But they won't, because they don't want Spector to get such a "light" sentence. Even though it is much more likely what happened than what they contend.

Prediction: Spector will lose on 2nd degree murder this time, with a big assist from Fidler. However, there is a possibility that the defense will agree (or Fidler will order over objection) to a voluntary manslaughter potential verdict. I seriously doubt Spector will agree, because he'll get 21 years out of it (11 for the manslaughter + 10 for the use of the gun), and at his age it is a death sentence (he would have to serve 17.8 years before he is eligible for parole). But a fair jury, if Spector gets one, will have a difficult time imposing 2nd degree murder. Because that just isn't what happened.

Either way, justice will be ill-served for poor Lana Clarkson. And before anyone says how callous I am about poor, depressed Lana, just ask yourself these questions: Where were those who cared so much for Lana Clarkson when she was struggling with depression in cold, cold Hollywood? Where were they when she was out of money and working as a hostess at the House of Blues, struggling to make her car payment? Where were they then?

Dennis Wilkins
The Guest PD Blogger

The Politics of Judging

First, great posts by PD Dude. I slacked off a bit and he came roaring back. His DNA posts were awesome. In keeping with what I wanted to do with re-vitalizing this web, I will now do a short post about something, with the emphasis on short. I want to get SOMETHING down before other stuff in life takes me away. I think that blogs are awesome, but it takes effort to write them. What I want most are the good discussions that follow. But it simply doesn't happen with every, or even most, posts. That being said, I still want to talk about what I want to talk about. This time, it is the judiciary.

There is an article in the August California Bar Journal entitled "Protections Urged for Judges." The article is named totally deceptively, but the article does point to one truth in the America justice system: the politicization of judges. It is something that often gets decried and there is a LOT of hand-wringing over, but it is easily solved. My solution will come at the end - I promise you that any conservative and/or Republican and/or tough-on-crime person will hate it.

The article in the Journal makes it sound as if everyone is all of a sudden realizing that, WOW, judges have to run for office! And a LOT of money goes into those races! And more and more money is being spent! Others are shocked - I say, why has it taken so long? California had, prior to 1986, one the most liberal judiciaries in the country. Rose Bird was the first (and so far, only) woman appointed as the chief justice of the Cal. Supreme Court, and the first (and again, so far only) former public defender to hold this position. Her decisions were far-sighted, and the Court was in the forefront of providing more protections to criminal defendants, as well as more protections for civil plaintiffs. In other words, the Court was actively looking out for the little guy.

There was this famous case, written by Mosk (but in the Bird Court) called Royal Globe Insurance Company v. Superior Court (1979) 23 Cal.3d 880. Royal Globe effectively created a new tort in California whereby you could sue an insurance company for failing to negotiate in good faith. Hypothetical: You get hit in an auto accident. The other guy is at fault, and you are legitimately hurt. His insurance company refuses to deal fairly with you, believing that by dragging the matter out and making you go to court you will either tire out and go away, or that you somehow miss a timeline or something and get procedurally defaulted. Their liability is capped at the max of the insurance payout, so why should they negotiate with you? They're only on the hook for $50k (as an example), so why not make you fight for it and make you settle for less? If you go to trial and win, you don't get attorney's fees, so the cost of your attorney will come out of your settlement. The insurance companies really have no incentive to be "fair" or to consider settling. And if they fight everyone and get a reputation for doing so, then everyone will loathe suing them, and will be more likely to try to settle for less with them. You don't have a contract with the other guy's insurance, so they can do this.

Well, the Bird Court didn't like this situation, so they came up with the bad faith failure to negotiate tort, which was an outgrowth of an Insurance Code. All insurance companies HATED Royal Globe. Consumers loved it. This tort allowed the plaintiff to sue the insurance company for failure to negotiate in good faith, and, where appropriate, to get additional damages and attorneys fees from the insurer for failing to negotiate when liability was essentially clear. Now there was a penalty for insurers dragging cases out - they could lose a lot of money if they got caught using this obvious tactic.

The insurance companies wanted to get rid of a Cal. Supreme Court that was reducing their profits and making it hard to screw so many people. So they funded the attack on Rose Bird and three other Cal. Supreme justices in 1986, turning the most liberal court in the U.S. into one of the most conservative overnight. The weakness Bird and her colleagues had was the death penalty: she hated it and thwarted it at every turn. Voters were outraged. The insurance companies funded the effort to oust Bird, the first time Supreme Court judges EVER got thrown out of office in California en-masse.

The irony is that these same voters got outraged over the newly composed Cal. supreme (I refuse to capitalize it now) court's overturning of Royal Globe and other consumer protections. Remember Proposition 103 and the "voter revolt" over insurance rates? The Court largely gutted that initiative in a 100+ page opinion that few have ever had the stomach to read. Funny how so many "tough on crime" initiatives and propositions get passed with little comment, but an anti-insurance initiative? That gets gutted. The California supreme court is now very pro-business. Ditto for most appellate and superior court judges.

It shouldn't come as a surprise that judges are political in nature. One often need look only to political registration to see how a judge will rule. Most Republicans are pro-business, which means that unions, consumers, and plaintiffs are likely to lose in front of them. Most Democrats are pro-union, some are consumer-friendly, some aren't so tough-on-crime, and the like. I could go on all day, but the political makeup of a judge isn't too hard to gauge when you know something about the judge. And tough-on-crime is usually the theme for most judges, because voters do NOT like soft-on-crime judges. Judges are political by nature, and it is a fool who believes otherwise.

Back to the article: Pete Wilson, the granddaddy of politicization of criminal justice issues (he sired Prop. 21, the expansion of Three Strikes, and before that he got re-elected on the back of the original Three Strikes initiative, as well as the anti-affirmative action and anti-illegal-immigrant initiatives) wrings his hands and moans in the article about the fact that these poor judges have to answer questionnaires! From outside groups!! And if they don't answer them, well, people will say bad things about them!!! And if they do answer them, litigants will use those (presumably) honest answers to recuse those judges in later cases!!!! Petey wants an initiative to say that judges needn't answer such questionnaires. In other words, it is okay for a judge to have strongly held beliefs on hot-button issues (like, say, abortion, or government regulation of business, or separation of church and state, or whatever), and for that same judge to rule in YOUR case without ever mentioning that he/she is the WORST possible arbiter of YOUR client's fate - that is okay by Petey. But to allow questionnaires from various organizations, political and otherwise, to mail stuff to this judge when he/she is running for office, and then for the group to essentially lambaste said judge for refusing to answer those questions, well, that's wrong - it politicizes the judiciary. Not true, I say. The judges have already been politicized. They are there because they are appointed by someone in office (in out state, the governor) or they have defeated an opponent in a political process. They got there by soliciting campaign money from those interested in judicial decisions. Police PACs want to see judges who won't throw out evidence in criminal cases. Businesses hate lawsuits against businesses. Plaintiff's attorneys like lawsuits and like torts - they want friendly decisions on such issues. Some religious groups want to end abortions and to allow church and state to mix more. Some groups oppose these same issues. But at the heart of it all is the money, the lifeblood of politics, as well as how the issues and the candidates resonate with the public (tough on crime sells well, penny for penny, dollar for dollar, because NO ONE LIKE CRIME, not me, not anyone, except criminals. And criminals generally don't vote, don't have money, and, hey, even criminals aren't too fond of criminals.). Like it or hate it, this is the system as we have it.

Pete Wilson's fake fix is an obvious attempt to inoculate his breed of judges: conservative, Republican, pro-business, with a heavy dose of tough on crime, from having to answer those questionnaires that expose their biases. He'd rather have the illusion of fairness that is belied by what actually happens in the courtroom. He wants to call his judges fair, and everyone else's type of judge "reactionary," or "liberal," or "activist." The way he wants to do it is make it so that you don't get to hear the biases (whatever they are) of the judges until they pronounce their opinion. As a totally unfair and mean example, if a judge tends to like little children without clothes and thinks that having pictures of children without clothes is okay, and believes that any such laws against such conduct violates the First Amendment, that judge needn't answer any questionnaires on the subject. You'll find out about this AFTER the judge has been elected.

But the real problem, in my eyes, is the money required to get elected and re-elected, and the fear of the electorate that judges have. A judge faces immense pressure that the crime du-jour will somehow be stapled to his/her head if he rules the wrong way. For example, say that there is a bad crime committed that everyone hates, but that the police did some very bad things that people really should hate more (but they don't at least they don't say it). Should the judge throw out a confession because the defendant was beaten by the police in obtaining it? It's an easy issue, because we are supposed to hate the idea of cops beating and torturing suspects to get them to confess, a practice common in the US 3/4 of a century ago and more. But what judge would throw out this confession in this day and age? I would hope that all would, but some won't. They won't because they are terrified that the voters will boot him/her from office for standing up for "criminals." I wish it weren't so, but it is.

Do you want a fair judiciary? Careful what you ask for - a fair judiciary means one that will impartially adjudicate the law. One that will unflinchingly stand up for those rights that the Federal and State Constitutions provide. While the California Constitution is easily modified (notice the new attempt to disenfranchise gays by amending the California Constitution and how easily that goal is obtained - a majority vote. The right to marry is so important that it shouldn't be so easily dispensed with - such an action will make that right seem petty and trivial), this is not the case with the U.S. Constitution. And judges will be compelled to obey it, unafraid to make rulings that piss citizens off. That's what I mean by a fair judiciary.

Easy solution: No more judicial elections, all judges are appointed, and judges have lifetime tenure. The only reason to remove a judge is for bad conduct/malfeasance/misfeasance. The only way to remove a judge is by impeachment. Now, if you hate a judge, blame the governor. Be careful who you select as governor. Oh, and the governor will go to great pains to make sure that his/her appointees do what he/she wants. Of course, once a judge has lifetime tenure, that judge will be pretty hard for anyone, even the governor who appointed him/her, to control. The problem with this, of course, is that the race for governor in California now becomes huge. We don't have an "advise and consent" rule for judicial appointees where the legislature gets a say (perhaps we should?), so the governor can appoint whomever he/she wants. But I can see that the legislature would go out of its way to not create new judge ships, especially when the governor and the legislature are of the opposite party. So that means that courtrooms would be packed. Maybe. But isn't this what we have already? The legislature doesn't want to give Schwarzenegger the chance to appoint more Republican judges, so they have dragged their feet on court expansion.

The truth be told, our judges ARE political. Only a fool denies this. With lifetime tenure, even the most political judges will eventually have the freedom to rule based on their beliefs and their sense of what is right, which is pretty much the best you can hope for. I have never, ever been a fan of Justice Scalia and his conservative ideology. But the truth is that he has done more for criminal defense and protecting the rights of the accused than most other "moderate" judges over the years. And he has stood up for the Constitution enough times to piss off even his own "base." He wouldn't have done those things without lifetime tenure.

Dennis Wilkins
The Guest PD Blogger

Hamdan Verdict

WOW!

Did I mention how startled I was by the verdict? Some have said that this is an indictment of the whole notion of holding some of the people that they have as enemy combatants. Others have said that this vindicates Bush's tribunal idea. Hmmmm.....

First of all, this jury was incredible. It was a jury of military officers, handpicked, presumably, to convict as completely as possible. Sure, the defense was able to kick some off for bias, but whatever, the whole venire was suspect, far as I could tell. And yet, they parsed through the evidence and came up with a very measured verdict and sentence. Let's face it, Hamdan was more than just a simple mechanic or driver, but he was clearly not completely in league with these guys. This jury hit that nail on the head.

Secondly, the Judge. Previous Judges have been removed for being too fair, and yet this guy seemed pretty fair. I don't know all of the details of the rulings, and there was clearly a lot of confidential evidence that we don't know about, but really, I could live with a judge like this once in a while. He actually kept out some of the government's evidence of statements that were coerced. Who would've thunk that after the last 6 years of what we've been hearing how coerced evidence would be allowed.

Now, this clearly does have some level of vindication for the tribunal system in there, but remember, this is only one case. Other cases will have different juries, different judges, and different amounts of evidence. I have to assume that the evidence against Hamdan is roughly par for the course on most of these guys, clearly excepting the high level people that they have in there. Consider the number who have been released already, and the number in which the government is now seeking to augment their record against now that they can file habeus corpus petitions (that means that the government is now scrambling to create a record with some legitimate evidence that a suspect has actually done something wrong, in marked contrast with what has passed for sufficient evidence now in front of these review panels that rubber stamp absolute bullshit). So, it would appear that many of these coming tribunals (if they involved lower level people like Hamdan, and not upper level people like Khalid Sheikh Mohammed - alleged 9/11 mastermind). But, they've mostly only set tribunals for the big fish now, the smaller (more populous) cases are going through the habeus process. If some of them went through tribunals (and there is talk that a filing of a case against one of these people ends their rights to a habeus petition, because they haven't exhausted their remedies yet), who knows what kind of a jury they could get that perhaps would convict - to state a variation of the old line - a ham sandwich if pressed by the government.

So, this does not prove that we have a good system. Rather, it proves that a really bad system appeared to have worked right in this instance.

Let's not forget, though, that hundreds have been released from Guantanamo, with the understanding by the US government in many of these cases that they should never have been detained. Many more were minor little players in a civil war in Afghanistan, with no ax to grind for or against the US (imagine if we were to start looking to other localized conflicts for foreign participants and arrested them - think of the Lincoln Brigade of American fighters in the Spanish Civil War, Jews who go to Israel and join the Israeli Army to help them against the Arabs, American Arabs who went to Afghanistan to fight against the Soviets, and the list goes on).

In other words, the Khalid Sheik Mohammeds appear to be the minority in Guantanamo, and for this, we need to ruin our reputation as a land of justice? Or, as Mitt Romeny said, open a few more Guantanamos?!

A great suggestion from a friend

I am at a baseball game with a friend and his wife tonight. The wife finds out I'm a public defender, and she actually has a great understanding of what we do, and a lot of respect for it as well (ie - no questions like: "how do you deal with those guilty scumbags?"). We're talking about crime, gangs, violence, drugs, and things of the like, when she asks me: "can't you go talk to the mayor and have him legalize drugs, so we can clean up real crime instead of dealing with stupid drug crimes?"

Now, aside from the fact that the mayor has little to do with our drug policies (alright, actually he has next to zero), and the fact that anyone who does certainly won't be listening to a Public Defender, damn, she really had it right.

If only more people had that attitude, we may not be in the mess that we are in this society.

Sigh, if only.

More things DNA

As evidenced by the scintillating discussion about my last post on DNA (none), one can surmise that perhaps DNA is not the most fascinating table conversation in the world. A pity, actually, because it really is so fascinating, and there is actually quite a bit of controversy about it. The controversy is not about it's existence (except among the anti-evolution crowd, but that's a different story), but rather about the manner that it's used.

Since my post on DNA, I've been mildly bombarded by people on a few sides of this issue.

The most gratifying are those who are actually experts in the field who complimented me about breaking the subject down somewhat well (or poorly, but at least not too badly, or, at the very least, for simply addressing the subject, but, whatever). I also got emails from people who recommended that I attend a certain conference on the subject (in Dayton, but more information on that later). Finally, and most importantly, I got a couple of emails from defense lawyers who have huge DNA cases who know nothing about DNA, and want to learn. Of course, my post is a bad place to learn, but it's a good place to start.

Now, for Dayton. On August 15-17, Forensic Bioinformatics is hosting their annual DNA conference in Dayton. I have never been to this one, but I've been to another in this series, and it is really good stuff. It is meant for lawyers to learn about what DNA is, how it is used in criminal cases, and how to handle these types of cases. If you are a defense lawyer with a DNA case, you would be remiss not to attend this, or another conference like it. This stuff does not just come to you, you have to go out and learn it. I can tell you from my own experience that you will come away from a conference like this with a vast amount of knowledge.

There are a couple of Public Defender's offices that are serious about teaching their people (or some of their people, so they can then teach others) about DNA, which is becoming a greater and greater part of the criminal practice. There are other PD offices with their heads in the sand, not willing to put out the resources or change things up enough in their offices to get off their duff and send their lawyers to conferences like this. I can tell you this, having gone through this before, and seeing the lawyers and scientists who run these seminars, you will be much more competent to handle a DNA case after going to this. I will also say this, those PD offices who are unwilling to devote the resources to have their lawyers learn this properly are courting ineffective assistance of counsel claims, lawsuits, and facing the reality that our client's criticisms that we are dump trucks is true. So, defense lawyers, sign up if you can, you owe it to your career and your clients.

Dan Krane, of Forensic Bioinformatics, wrote to me about an interesting issue that is so obvious, it should be basic. The problem of DNA labs knowing the profile of the suspect they're being asked if the evidence matches.

I will blog on this later, but consider this. DNA analysis requires opinions to be given. Analysts have to give opinions about what the readings of a sample are, and sometimes they have to make conclusions not based on hard science about whether something that shows up is DNA or just "stutter" (basically a false reading that looks like DNA). Now, this may seem obvious, because we're talking about science here (BTW - There's no such thing as obvious, science, and police labs - it always defies rational explanation the way real scientists will bend the rules at the behest of the police), but don't you think that these scientists, looking out for the truth, should not be influenced by the suspect's profile when making a conclusion about the profile on the sample from the crime scene?

That's right, it sounds obvious, don't have the (presumed) answer in your hands while you're doing scientific analysis that also requires a little bit of opinion in the analysis.

Now, as I said, I will blog on this more later, but this goes back to that expedience desired by law enforcement to bulldoze over standards and truth in the desire to get an easy conviction. You see it from the police when they refuse to video or audio record conversations - such as between decoy cops and potential drug buyers, or prostitution johns. You see it when they refuse to video tape the alleged drugs sales they set themselves up to watch, and bust people, and convict them just on the strength of their testimony. In other words, you see science subverted in the same manner you see justice subverted in so many other ways in the criminal justice system.

More on this later, but this is why you lawyers need to attend conferences like this Dayton one.

Go to it, and let me know how it was. Unfortunately, I cannot go this year.

Playing games with DNA

This is some complex stuff, DNA, and it gets even more complex when you try to bamboozle juries with what it means - actually, maybe it makes it less complex, but unraveling the bamboozlement gets complex. Here's what I'm talking about.

The Los Angeles Times has reported on a phenomena that those of us who have gone through more intensive DNA trainings know about, something called the Arizona Database situation. Typically, in a DNA case, the prosecution will contend that the chances of a random person having a profile that matches the suspect who left behind his DNA is one in something like 5 quadrillion (that's a one with 15 zeros after it). I've seen it get as high as quintillion (add another 3 zeros, but who's counting at this point, there's only 5 billion people on the plant, and something like 10 billion people who have ever even been in existence, now and all the way in the past). In other words, your client, the guy sitting next to you, must be the person who did it, because his DNA "matches," and the chances of that happening coincidentally are, well, impossible.

But, it turns out, it's not. This is where it gets complex, and deals with bizarre statistical things, which is why most lawyers don't really understand it, and try not to get DNA cases where there is no other evidence pointing to a suspect's guilt. You see, the DNA that the prosecution is matching is not your whole DNA profile, but just a small little part, up to 15 spots out of billions of spots, areas that are otherwise known as "junk DNA" (ie - it does not have anything to do with any traits such as blond hair, brown eyes, height, etc... It's all just random junk). It used to be that 9 matches was one in some huge number of billions, and that was enough, then it became 11, then 13, now 15. But, 9 is still enough, because it's still one in however many billion.

Until a government analyst in Arizona ran all the profiles in the 44,000 person Arizona database against each other, and found 122 people matched at 9 of those locations (or loci, as they're known in the field), something that was only supposed to happen one a billion times or so. And most of these people were completely unrelated.

Now, one would expect the FBI and other law enforcement organizations - who of course are in a search for the truth and justice - to find out why this has happened, to see if, in fact, there are cases where 2 people do have the same DNA and aren't related, to see how often this happens in other situations.

Done laughing yet? Have you read any of my previous posts about not trusting government and law enforcement? Here's another reason. The FBI did not do this. They stopped states from trying to do this. Not even through legal means, but through lies. They said things like: "tell the Court you'll lose your accreditation if forced to do this search," followed, sotto voce with "don't worry, you won't really lose it." Or how about: "tell the Court that it will tie up the system for days and can corrupt the whole system, rendering it useless." And guess what, these lies have worked most of the time. In California, the Courts have roundly refused to run the whole system against each other to see if anyone matches.

Except, in 2 states, they actually have done so. Don't worry, those of you sitting on the edge of your seats worried that they may have lost their accreditation or that the system shut down, corrupted - it all turned out fine. Oh, except they found a bunch of matches where they shouldn't have. One time they even had a match in 13 out of 13 loci, or more than a one in a quadrillion chance. The Maryland crime lab argued that those are probably, in fact, the same person, put in their twice under different names. Or maybe twins. They're so convinced it's something innocuous like that, they haven't bothered to even check.

Here's the thing: police science people (see, I can't even call them scientists they're such jokers) aren't willing to consider this possibility. Perhaps this "junk DNA" that people are comparing against aren't really junk at all. What if these code for character traits like, say, propensity for violence. While the statisticians are saying the chance of any two people having the same DNA at one of these spots is, say 1 in 10, maybe it's only one in 10 for non-violent people, but more violent people tend to have DNA that groups in the same area frequently. Then it wouldn't be so rare.

Now, I know that's a little complex, and I'm not a scientist (I sucked at math and science, that's why I became a lawyer), but it comes down to something like this. Say a Hispanic person does a murder, and leaves their DNA behind. The DNA gets compared to another Hispanic person, and they declare it's a match at 9 loci, and the chances of that are 1 in 5 billion (ie - there's no one else on the planet with the same DNA). They say this because each of those loci are completely random, there is no chance that one person has one profile over another at any of those loci.

However, what if it is found out that 1 of those loci really tends to show eye color (this is very basic, and it probably wouldn't show something that basic), another shows hair color, another shows skin tone, and another shows height. Now, the person who did the murder was 5'6", black hair, brown eyes, and slightly darker skin. If the suspect is about the same, you've described, in the Los Angeles area, probably about a million Hispanic men. Now if these loci were random, maybe it's one in a billion, but if they're not random, and you'd expect a bunch of Hispanic men to have this profile, then maybe the odds are only 1 in 30,000 Hispanic men may have this DNA profile (not all will have the same DNA, even if they have those traits, as there are a bunch of DNA spots that have to do with hair, eyes, skin and height, it just makes it more likely they'd have similar DNA). But, suddenly, you're looking at over 30 men in Los Angeles who may match that DNA.

This doesn't sound like a match to me (unless you're law enforcement, and it's close enough for government work - regardless, you're getting some Hispanic guy with a record off the street, if he didn't do this, he probably did something else anyways).

No wonder why the FBI is trying to bottle this stuff up, imagine DNA wasn't the picture perfect thing they've portrayed it to be.

Now, I know this is thick, and I probably described it poorly. If enough people write me and say "huh?" I'll try and re-do in a better way, maybe even consulting with someone who knows this better than me. If not, I'm interested in whether people understand my point here (besides the obvious, which is, another law enforcement cover-up).

Read the article for more info, they describe it better than I do.

Special thanks to reader MT, who pointed this article out to me this morning before I had a chance to look at the paper.