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.

Friday, August 29, 2008

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.

Thursday, August 28, 2008

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.

Saturday, August 23, 2008

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

Thursday, August 21, 2008

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

Wednesday, August 20, 2008

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

Tuesday, August 19, 2008

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

Tuesday, August 12, 2008

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

Saturday, August 09, 2008

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?!

Saturday, August 02, 2008

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.

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