I haven't posted in a long time, so let me make a short post to observe a few "connect the dots" observations - I want to connect two pieces of news and sort of juxtapose them, so that people can draw their own conclusions.
First, there have been numerous articles about Chief Justice George retiring from the California Supreme Court. There is a long list of his "accomplishments." Here is an example: http://www.mercurynews.com/politics-government/ci_15514924?nclick_check=1 I am sure he is proud of himself. And it is true that he tried hard to modernize California's huge judicial system and make it more uniform. But along with his kudos, he should get knocks for some of the many, many crappy decisions that his court has made that defy logic, most especially in the realm of criminal justice. The most recent example: People v. Low - link here: http://www.courtinfo.ca.gov/opinions/documents/S151961.PDF , and People v. Gastello - link here: http://www.courtinfo.ca.gov/opinions/documents/S153170.PDF. Both were handed down on June 24, 2010. Both are listed in PDF format because everyone has Adobe Acrobat.
In both Gastello and Low the defendants were charged with a statute that California has called Penal Code section 4573. In essence, it is illegal to bring drugs into a jail. But what if a person is arrested, and has drugs on them, and THEY are brought to a jail? Well, in the intake area of pretty much all jail facilities in Californi, there is a sign that advises the defendant of PC 4573, and essentially tells the defendant that he has to fess up that he has drugs, or else he faces a straight felony when the deputies find them.
In California, possession of marijuana is a misdemeanor, unless it's for sale. Possession of methamphetamine can be a misdemeanor, at the DA's discretion. Possession of cacaine is a stright felony. But a defendant facing a charge of simple possession of any drug, even cocaine, can often get into PC 1000 diversion, or Prop. 36, or even drug court, depending on his/her record. Most simple possession cases do not result in prison time, not even for 3rd strikers. Remember, I said most simple possession cases - some still get prison based on their prior strikes, their records, other charges, etc. It all depends on the facts, the DDA, the court, the temperature outside, the relative humidity, the defendant correctly guessing the number of angels that can dance on the head of a pin, etc. But not so with a PC 4573 charge. That is a straight felony for which there is no diversion, or Prop. 36. Maybe drug court. But certainly a felony that cannot be reduced to a misdemeanor at some point. Thus, having a simple possession charge amped up to a stright felony PC 4573 charge can be a serious issue. In Low, the defendant lied to the cop, claiming that he had no drugs on him. A search found the drugs. In Gastello the defendant said nothing, after having been Mirandized at some point, and the drugs were found in a search. In both cases the defendants were convicted on straight felonies. Low was the longer opinion, dealing with the various Constitutional and statutory issues. Gastello is much shorter and pretty applies Low.
In both the Low and Gastello cases the California Supreme Court, the George court, discussed the Fifth Amendment right to remain silent, and the idea that neither of the defendants "voluntarily" went to jail. Both defendants would much rather have been somewhere else. Thus, they didn't "bring drugs into a jail" - they were brought to jail while possessing drugs. The George court ruled against both Gastello and Low, and pretty much gave short shrift to the Fifth Amendment argument. In Gastello, in fact, the better of the two cases (he remained silent, after all), the George court simply could not understand how the Fifth Amendment was implicated at all. They acted as if they had never heard of the "cruel trilemma" - the basis of Miranda. The "cruel trilemma" is as follows: A defendant has three choices when questioned by the police. 1) He can remain silent, and be thought guilty, because if he wasn't guilty he would have said something, 2) He can confess, thereby proving his guilt, or 3) He can lie, which will likely convict him as well, because his lies will be found out. This is one of the bases for the 5th Amendment and for Miranda. Like it or hate it, it is blackletter law. Instead, the Goerge court said that the defendant was correctly prosecuted for PC 4573 BECAUSE he remained silent - a "nontestimonial act." Beg pardon? His REFUSAL to confess his guilt was a "nontestimonial act" for which he could be prosecuted? Wow - that really turns the law on its head, huh?
The George court simply couldn't understand how the Fifth Amendment was implicated at all. I mean, if the defendant has drugs on him, and reads that sign, all he has to do at that point, to prevent a charge of PC 4573, is to confess to the cops that he has drugs. And, wallah, there can be no PC 4573 charge. Wow, I never thought of that. What a great idea. Next time, I will advise my client who faces a potential crime and who is afraid of the police charging him with a more serious crime to confess his crime to the police and waive his Miranda rights. That way, he won't have to worry about new charges. And I guess then I can wait to be disbarred or something.
Is the George court really this dumb? The only way to prevent a PC 4573 charge is to confess, and that doesn't implicate the Fifth Amendment? At least one unanimous appellate court thought it did. Oh, and of seven members on the Goerge court, guess how many dissented. None. Yeah, I guess that happens when everyone uses the same law clerks. Note that both Gastello and Low were written by the court's most conservative member, J. Baxter. But George gets to assign the opinion to whomever he wants, since the opinion was unanimous. And I am sure that George also had some influence on the opinion, again because it was unanimous.
Chief Justice George announced his retirement now so that Governor Arnold Schwarzenegger, a guy with the lowest approval ratings ever (even lower than Gray Davis before his recall), can name his replacement. I suppose that this is just in case Jerry Brown, the Democrat who put Rose Bird onto the court, wins over Meg Whitman in November (that race is a tossup at this point). It is no wonder that California's judiciary, especially it Supreme Court, has become the laughingstock of the free world. The trial judges in California hand out horribly punitive sentences, then the appellate court and the California Supreme Court simply affirms them, all the while the prison system is in tatters due to massive growth. Meanwhile, the Legislature dithers and passes tougher and tougher laws with longer and longer sentences, with the electorate every once in awhile one-upping them. It is no wonder that our criminal justice system has become the shame of the free world.
So, connect the dots. Chief Justice George is retiring, and the newspapers say he is a really great guy because he helped convict the Hillside Strangler. But many of his court's opinions, especially many of his court's recent opinions, really suck and are pretty much devoid of honest reasoning. Yeah, I suppose that many in California will really miss Chief Justice George. I won't.
Dennis Wilkins
Deputy Public Defender
The Guest PD Blogger
Saturday, July 17, 2010
Wednesday, May 26, 2010
Further Reflections on the Marijuana Legalization Initiative in California
I posted in the wee hours (I couldn't sleep) about my beliefs about the coming marijuana legalization initiative on the November 2010 ballot. I haven't found the actual text of the initiative, or even the number just yet, but here is a link to a site called Ballotpedia, a website that seems to have a fair description of the initiative: http://ballotpedia.org/wiki/index.php/California_Marijuana_Legalization_Initiative_(2010)
My post this morning generated a pretty cool response from a site called Legal Blog Watch. Here is the post: http://legalblogwatch.typepad.com/legal_blog_watch/2010/05/public-defender-laments-inevitable-failure-of-pot-legalization-referendum.html I am treated pretty faily by the writer of the piece, an attorney named Eric Lipman. His discussion of what I said is on his blog, at the site listed above. He takes me to task a bit for what I said, but he reminded me of something improtant: Don't make a comment on the web unless you are prepared to support it. And even if you can support it, prepare to take some heat anyway. Read his post - it's pretty good.
Well, then I started looking and I found the Marijuana Policy Project at: http://www.mppcalifornia.org/home/ I must admit that the articles seem pretty well-reasoned on that site. And there is a neat little video by a guy named Mike Meno at http://www.mpp.org/ This young guy is VERY well spoken. In fact, he should be the spokesperson for at least some of the legalization effort.
My opinion on whether the initiative will pass hasn't changed - the recent drop of support for the legalization initiative indicates to me that Californians are still pretty skeptical. A comment to my last post at Public Defender Dude illustrates this. I believe that many people will let fear guide their decision-making. After al, we don't know how bad things will get when we open this box, right? And when the vast overwhelming majority of police agencies say that marijuana legalization is bad, well, who wants to disagree with the police, right?
But if spokespeople like Mike Meno are able to get their voices out there, and if prominent people actually actually start to take note of some of the silly things that those on the prohibition side are saying, then maybe things will change. For example, the U.S. Drug Czar Gil Kerklikowske just said within the last few days that, as to marijuana, the Obama administration is "not exploring prohibition." Well, that's just plain stupid. What we currently have, like it or hate it, IS prohibition. The issue is whether the marijuana prohibition should continue. Because I don't believe that the U.S. Drug Czar is an idiot (No one appoints a complete idiot for such a high profile office in this day and age), I have to believe that he is a liar. How could he not know what prohibition means? If more high-profile discussions start about the rhetoric on the other side, maybe, just maybe, legalization will stand a chance.
We can only hope, right?
Dennis R. Wilkins
The Guest PD Blogger
My post this morning generated a pretty cool response from a site called Legal Blog Watch. Here is the post: http://legalblogwatch.typepad.com/legal_blog_watch/2010/05/public-defender-laments-inevitable-failure-of-pot-legalization-referendum.html I am treated pretty faily by the writer of the piece, an attorney named Eric Lipman. His discussion of what I said is on his blog, at the site listed above. He takes me to task a bit for what I said, but he reminded me of something improtant: Don't make a comment on the web unless you are prepared to support it. And even if you can support it, prepare to take some heat anyway. Read his post - it's pretty good.
Well, then I started looking and I found the Marijuana Policy Project at: http://www.mppcalifornia.org/home/ I must admit that the articles seem pretty well-reasoned on that site. And there is a neat little video by a guy named Mike Meno at http://www.mpp.org/ This young guy is VERY well spoken. In fact, he should be the spokesperson for at least some of the legalization effort.
My opinion on whether the initiative will pass hasn't changed - the recent drop of support for the legalization initiative indicates to me that Californians are still pretty skeptical. A comment to my last post at Public Defender Dude illustrates this. I believe that many people will let fear guide their decision-making. After al, we don't know how bad things will get when we open this box, right? And when the vast overwhelming majority of police agencies say that marijuana legalization is bad, well, who wants to disagree with the police, right?
But if spokespeople like Mike Meno are able to get their voices out there, and if prominent people actually actually start to take note of some of the silly things that those on the prohibition side are saying, then maybe things will change. For example, the U.S. Drug Czar Gil Kerklikowske just said within the last few days that, as to marijuana, the Obama administration is "not exploring prohibition." Well, that's just plain stupid. What we currently have, like it or hate it, IS prohibition. The issue is whether the marijuana prohibition should continue. Because I don't believe that the U.S. Drug Czar is an idiot (No one appoints a complete idiot for such a high profile office in this day and age), I have to believe that he is a liar. How could he not know what prohibition means? If more high-profile discussions start about the rhetoric on the other side, maybe, just maybe, legalization will stand a chance.
We can only hope, right?
Dennis R. Wilkins
The Guest PD Blogger
The Marijuana Legalization Initiative on the November Ballot
It's on the ballot for November 2010. It is a great idea, and it is a well-written initiative. The drug war has failed, [Here is the May 11, 2010 AP article: http://www.google.com/hostednews/ap/article/ALeqM5iLZNYd6C9SGpa2oeiZIqT-HKVrCQD9FMCM103 - and here's what Grits for Breakfast, an excellent PD Blog had to say: http://gritsforbreakfast.blogspot.com/2010/05/news-flash-drug-war-colossal-failure.html ]and the marijuana front has been an even bigger failure. Marijuana is not even as dangerous as alcohol, which has been legal since Prohibition.
And it will fail at the ballot box. Here's why:
1) Marijuana legalization is soundly opposed by most old people. Old people vote religiously. California politics has been skewed by the opinions of older voters for decades. There is no reason for older people to want to legalize marijuana - they can get vicodin easily with their prescrption drug benefits. And alcohol is even more easily available at the corner store/local liquor barn. Oh, and one last thing - all old people know very well that only DFH's use marijuana. And anything that DFH's want, old people are opposed to.
2) There are no good spokespersons for legalizing marijuana. Take a look on the web and you will find that of the many, MANY opinions that are written in response to articles about marijuana legalization, the ones in favor are usually riddled with spelling and grammatical errors. What does this mean? They are "normal people." Not NORMAL, as in the National Organization for the Reform of Marijuana Laws, but just ordinary, non-college-educated folk. Who want to smoke pot. Most rational people who have a degree of some kind won't say ANYTHING about marijuana legalization because they fear being branded as "one of them." You know - druggies. DFH's. Pot smokers. And as just about ANYONE will tell you, that is the kiss of death for just about any professional. Oh, an occasional professional person can admit that he/she smokes pot, and might even be caught with/smoking pot. But to advocate for legalization publicly? No, that professional will suffer. I won't suffer in my profession because I already defend murderers, rapists and child molesters - supporting legalization is the least of my professional "sins."
Full disclosure: I don't smoke pot. I would smoke pot occasionally, if it were legal. But it isn't, so I don't and I won't. Why? Because I am a Deputy Public Defender, an officer of the court, and I don't want to get my house searched. I don't need the headlines. And I genuinely do my best to obey the law, however stupid it may be at times.
But I despise the ruins my country has made of itself over the ever-escalating drug war. I despise the corruption in the various police departments that the new prohibition has brought us. I despise the fact that the public schools, public schools that my children go to and will continue to go to, lack funds because my government has to feed the criminal justice beast, of which the drug war plays no small part. I got a letter a week ago that said that the school district can no longer afford to bus one of my children because of budget cuts. If given the choice, I would much rather not have ANYONE do time for marijuana-related "crimes," so that our state can afford to bus children who should be bused to school.
3) Police agencies and prison guards are, or soon will be, all over this one. They NEED marijuana offenses to be a crime. If decriminalization were to happen, within 2 years we would see the effects: nothing. That's right - nothing adverse will happen. People will smoke pot like they currently do, and the only guys who will see business cuts are the marijuana dealers, the various growers (the profit incentive will be greatly reduced, so it won't be as lucrative), the middle men, the police agencies who used to enforce the drug war laws, the prison guards who will have less peope to guard, etc. The various police, sheriffs, and the California Correctional Peace Officer's Association, will end up contributing heavily against this initiative.
Another reason they will attack it? God forbid it works, because then it will become a gateway of a different kind. A gateway to legalization of almost all drugs. Remember when the speed limit was 55 MPH throughout the country? That took forever to change, with several states essentially stating that they would abandon a portion of their highway funds by allowing cars within their state to speed. When the federal government considered changing the speed limit, police and highway patrol agencies from across the nation objected loudly, predicting that the sky would fall, and that there would be an avalanche of speed related deaths. When the law was finally changed, within two years the numbers were in: deaths didn't go up appreciably. People had been speeding already - now they were just doing so legally.
The same thing will happen with drug legalization. All that we have now is a new Prohibition, one where the drug companies, the police, and criminal dealers and producers (organized or otherwise) benefit. And taxpayers pay the tab.
But the initiative, unfortunately, will fail. Because no one who sounds coherent will stick their neck out to defend it. And that is sad.
Dennis R. Wilkins
The Guest PD Blogger
And it will fail at the ballot box. Here's why:
1) Marijuana legalization is soundly opposed by most old people. Old people vote religiously. California politics has been skewed by the opinions of older voters for decades. There is no reason for older people to want to legalize marijuana - they can get vicodin easily with their prescrption drug benefits. And alcohol is even more easily available at the corner store/local liquor barn. Oh, and one last thing - all old people know very well that only DFH's use marijuana. And anything that DFH's want, old people are opposed to.
2) There are no good spokespersons for legalizing marijuana. Take a look on the web and you will find that of the many, MANY opinions that are written in response to articles about marijuana legalization, the ones in favor are usually riddled with spelling and grammatical errors. What does this mean? They are "normal people." Not NORMAL, as in the National Organization for the Reform of Marijuana Laws, but just ordinary, non-college-educated folk. Who want to smoke pot. Most rational people who have a degree of some kind won't say ANYTHING about marijuana legalization because they fear being branded as "one of them." You know - druggies. DFH's. Pot smokers. And as just about ANYONE will tell you, that is the kiss of death for just about any professional. Oh, an occasional professional person can admit that he/she smokes pot, and might even be caught with/smoking pot. But to advocate for legalization publicly? No, that professional will suffer. I won't suffer in my profession because I already defend murderers, rapists and child molesters - supporting legalization is the least of my professional "sins."
Full disclosure: I don't smoke pot. I would smoke pot occasionally, if it were legal. But it isn't, so I don't and I won't. Why? Because I am a Deputy Public Defender, an officer of the court, and I don't want to get my house searched. I don't need the headlines. And I genuinely do my best to obey the law, however stupid it may be at times.
But I despise the ruins my country has made of itself over the ever-escalating drug war. I despise the corruption in the various police departments that the new prohibition has brought us. I despise the fact that the public schools, public schools that my children go to and will continue to go to, lack funds because my government has to feed the criminal justice beast, of which the drug war plays no small part. I got a letter a week ago that said that the school district can no longer afford to bus one of my children because of budget cuts. If given the choice, I would much rather not have ANYONE do time for marijuana-related "crimes," so that our state can afford to bus children who should be bused to school.
3) Police agencies and prison guards are, or soon will be, all over this one. They NEED marijuana offenses to be a crime. If decriminalization were to happen, within 2 years we would see the effects: nothing. That's right - nothing adverse will happen. People will smoke pot like they currently do, and the only guys who will see business cuts are the marijuana dealers, the various growers (the profit incentive will be greatly reduced, so it won't be as lucrative), the middle men, the police agencies who used to enforce the drug war laws, the prison guards who will have less peope to guard, etc. The various police, sheriffs, and the California Correctional Peace Officer's Association, will end up contributing heavily against this initiative.
Another reason they will attack it? God forbid it works, because then it will become a gateway of a different kind. A gateway to legalization of almost all drugs. Remember when the speed limit was 55 MPH throughout the country? That took forever to change, with several states essentially stating that they would abandon a portion of their highway funds by allowing cars within their state to speed. When the federal government considered changing the speed limit, police and highway patrol agencies from across the nation objected loudly, predicting that the sky would fall, and that there would be an avalanche of speed related deaths. When the law was finally changed, within two years the numbers were in: deaths didn't go up appreciably. People had been speeding already - now they were just doing so legally.
The same thing will happen with drug legalization. All that we have now is a new Prohibition, one where the drug companies, the police, and criminal dealers and producers (organized or otherwise) benefit. And taxpayers pay the tab.
But the initiative, unfortunately, will fail. Because no one who sounds coherent will stick their neck out to defend it. And that is sad.
Dennis R. Wilkins
The Guest PD Blogger
Monday, May 24, 2010
Update on William Richards
I posted last year in "DNA Exoneration Close to Home." The defendant's name is William Richards. His case number is FVI00826. I have not been following the case closely. But after reading some of my posts, I realized that I wanted to know what had happened with this case. Well, I found out.
According to a news artical, and then confirmed by reading the court minutes, William Richards remains in jail. The San Bernardino DA is appealing Judge McCarville's decision, I gather on the grounds that he did not have jurisdiction. In other words, even if William Richards WAS wrongly convicted (the DA does NOT concede that he was), their claim is that a California Superior Court judge lacks the power under California law to grant him a new trial. I hope that they are wrong.
But in the meantime, William Richards remains in county jail. He was transported from prison and is now in county jail. He apparently has cancer, and he is receiving treatment for cancer while in jail. This is his second bout with cancer. It would be very sad indeed if he died either while awaiting a decision from the appellate court about whether Judge McCarville's actions were correct, or pending a retrial if it comes to that.
It is unfortunate that our system comes to this: If a man is convicted, he is forever presumed guilty, and he must move heaven and earth to get someone, anyone, to hear his plea that he has been wrongly convicted. But if a man is acquitted, he will forever be suspect as having committed the crime. The search for the truth that our system is often boasted as being all about, especially those in law enforcement and prosecution circles, is far more than not a search for punishment of those of whom are convicted.
But hey, we really are getting the kind of justice that we, as a society, have publicly demanded. Laws are rarely, if ever, seen as too punitive. Rarely, if ever, is there a cry from the citizens that laws have become too harsh (and they have, in my opinion, become far too harsh). There is far more often a cry that the laws are too soft; that judges are too "soft on crime"; that legislators are "coddling criminals." We have come to a time where we have just about bankrupted our state.
What have we spent this largesse on, you might ask? Was it that we built too many schools? Staffed too many libraries? Maintain too many parks? Run too many hospitals? No, not even close. I can't wait for all of the illegal alien haters to join in and tell me how "soft" and "stupid" I am (Some are such nice folk in person, but with the anonymity of the web, their words can become like acid), and claim that it's the illegal aliens who are bankrupting us. No. It's the prisons and jails that's doing us in.
Don't worry, though. This debate will keep on going. The new discussions of "outsourcing" our prisoners to other states, or even Mexico (I'm sure that will fly with the California taxpayers - we pay to build and staff prisons in Mexico while we go bankrupt here - sure thing, Arnie!) to come in line with the 9th Circuit's ruling on overcroding and medical care is actually good for our system. I mean, why should we pay for schools? Why should we pay for universities? After all, we have all those prisons to fill.
Just a few more years of this, and the electorate of California is gonna get mighty tired of paying a fortune to house and feed "criminals." We'll see if that becomes a clarion call for getting people the hell out of prison. We'll see.
Dennis Wilkins
The Guest PD Blogger
According to a news artical, and then confirmed by reading the court minutes, William Richards remains in jail. The San Bernardino DA is appealing Judge McCarville's decision, I gather on the grounds that he did not have jurisdiction. In other words, even if William Richards WAS wrongly convicted (the DA does NOT concede that he was), their claim is that a California Superior Court judge lacks the power under California law to grant him a new trial. I hope that they are wrong.
But in the meantime, William Richards remains in county jail. He was transported from prison and is now in county jail. He apparently has cancer, and he is receiving treatment for cancer while in jail. This is his second bout with cancer. It would be very sad indeed if he died either while awaiting a decision from the appellate court about whether Judge McCarville's actions were correct, or pending a retrial if it comes to that.
It is unfortunate that our system comes to this: If a man is convicted, he is forever presumed guilty, and he must move heaven and earth to get someone, anyone, to hear his plea that he has been wrongly convicted. But if a man is acquitted, he will forever be suspect as having committed the crime. The search for the truth that our system is often boasted as being all about, especially those in law enforcement and prosecution circles, is far more than not a search for punishment of those of whom are convicted.
But hey, we really are getting the kind of justice that we, as a society, have publicly demanded. Laws are rarely, if ever, seen as too punitive. Rarely, if ever, is there a cry from the citizens that laws have become too harsh (and they have, in my opinion, become far too harsh). There is far more often a cry that the laws are too soft; that judges are too "soft on crime"; that legislators are "coddling criminals." We have come to a time where we have just about bankrupted our state.
What have we spent this largesse on, you might ask? Was it that we built too many schools? Staffed too many libraries? Maintain too many parks? Run too many hospitals? No, not even close. I can't wait for all of the illegal alien haters to join in and tell me how "soft" and "stupid" I am (Some are such nice folk in person, but with the anonymity of the web, their words can become like acid), and claim that it's the illegal aliens who are bankrupting us. No. It's the prisons and jails that's doing us in.
Don't worry, though. This debate will keep on going. The new discussions of "outsourcing" our prisoners to other states, or even Mexico (I'm sure that will fly with the California taxpayers - we pay to build and staff prisons in Mexico while we go bankrupt here - sure thing, Arnie!) to come in line with the 9th Circuit's ruling on overcroding and medical care is actually good for our system. I mean, why should we pay for schools? Why should we pay for universities? After all, we have all those prisons to fill.
Just a few more years of this, and the electorate of California is gonna get mighty tired of paying a fortune to house and feed "criminals." We'll see if that becomes a clarion call for getting people the hell out of prison. We'll see.
Dennis Wilkins
The Guest PD Blogger
Wednesday, May 19, 2010
Thinking about Kyles v. Whitley
I went to a California Public Defenders Association conference this weekend. It was the first one I had been to in a long, LONG time. It was in Palm Springs, and I had a really good time. It was their 41st annual convention. The speakers were good the first day, but the next day they were AWESOME. I was really impressed with Brian Waite, a deputy PD from Orange County. His presentation on opening statements and closing arguments was simply magical. This man had a gift.
But the first day's presentation by DPD Charles Denton, of Alameda County, I think, was an excellent hands-on presentation. It was great because he talked discovery, which is something that defense attorneys like myself never get enough good insight on. The more discovery we get, the more triable a case can become. The less discovery, the worse.
Charles Denton did something that there never seems to be enough of - he talked extensively about a particular case: Kyles v. Whitley, 514 U.S. 419 (1995). If you haven't read Kyles v. Whitley, read it. You should also read In re Brown (1998) 17 Cal.4th 873, where Justice Janice Rogers Brown, now on a federal appellate court somewhere, really applied the holding of Kyles v. Whitley. The key holding of Kyles v. Whitley is the fact that the DA heads something called the "prosecution team" which includes the police and other entities that, while the prosecution may not control, the prosecution is certainly responsible for. Per Kyles v. Whitley, the prosecutor must seek out exculpatory evidence that the "prosecution team" holds.
The backstory to Kyles v. Whitley is simply amazing. Long story short (if that is even possible now), Curtis Lee Kyles is charged with murdering a woman, and the key witness is a guy called "Beanie." The problem is that "Beanie" also has a motive for the murder, and his whereabouts and actions are very questionable. It is also kind of apparent that he very well could have planted every bit of evidence used against Kyles, with the exception of some lineups by witnesses that end up being coaxed by the cops to testify falsely.
The first trial, in 1984, hangs. In the 2nd trial, Kyles is convicted and gets death. It takes 11 years to get the U.S. Supreme Court, where a bare 5-4 majority reverses his conviction. Lots and lots of evidence was hidden by the police, and it trickles out over the decade since Kyles was convicted. The majority concludes, in a lengthy opinion, that the suppressed evidence, as a whole, would have made too much of a difference in the trial. A great case, everyone should read it.
After the presentation I talked to Charles Denton and shared some of the backstory about Curtis Lee Kyles, that I mangled a bit at the time. I will share it with you now. After the 1995 U.S. Supreme Court opinion, Louisiana tried Kyles again, and there was a hung jury. They tried him again, and again there was a hung jury. One last trial, and it was again a hung jury. Thus, 5 trials in all, 3 of them after the death sentence was reversed. Louisiana finally tired of this, and dismissed the murder case against Kyles. He walked out of prison in 1998. He was on death row for 18 years. He was within 18 hours of being executed at one point. At every single trial, NEW discovery came out that the police had not disclosed. In other words, the police and DA hid evidence before every single one of 5 trials. The final analysis of the case is that it is pretty likely that Beanie was the actual killer, although law enforcement in Louisiana still think otherwise.
One final note. The dissent in Kyles v. Whitley was written by Justice Scalia, joined by (now deceased) Chief Justice Rehnquist, and Justices Kennedy and Thomas. Here is a tiny snippet of what Justice Scalia wrote, which I find fascinating in how wrong he and his fellow dissenters got the case:
"In any analysis of this case, the desperate implausibility of the theory that petitioner put before the jury must be firmly kept in mind. . . . The Court concludes that it is reasonably probable the undisclosed witness interviews would have persuaded the jury of petitioner's implausible theory regarding the incriminating physical evidence. I think neither of those conclusions is remotely true, but even if they were the Court would still be guilty of a fallacy in declaring victory on each implausibility in turn, and thus victory on the whole, without considering the infinitesmal probability of the jury's swallowing the entire concoction of implausibility squared."
Hmmm. In other words, there is NO WAY that this guy culd ever win, so why are we reversing his conviction? Oops.
Dennis R. Wilkins
Guest PD Blogger
But the first day's presentation by DPD Charles Denton, of Alameda County, I think, was an excellent hands-on presentation. It was great because he talked discovery, which is something that defense attorneys like myself never get enough good insight on. The more discovery we get, the more triable a case can become. The less discovery, the worse.
Charles Denton did something that there never seems to be enough of - he talked extensively about a particular case: Kyles v. Whitley, 514 U.S. 419 (1995). If you haven't read Kyles v. Whitley, read it. You should also read In re Brown (1998) 17 Cal.4th 873, where Justice Janice Rogers Brown, now on a federal appellate court somewhere, really applied the holding of Kyles v. Whitley. The key holding of Kyles v. Whitley is the fact that the DA heads something called the "prosecution team" which includes the police and other entities that, while the prosecution may not control, the prosecution is certainly responsible for. Per Kyles v. Whitley, the prosecutor must seek out exculpatory evidence that the "prosecution team" holds.
The backstory to Kyles v. Whitley is simply amazing. Long story short (if that is even possible now), Curtis Lee Kyles is charged with murdering a woman, and the key witness is a guy called "Beanie." The problem is that "Beanie" also has a motive for the murder, and his whereabouts and actions are very questionable. It is also kind of apparent that he very well could have planted every bit of evidence used against Kyles, with the exception of some lineups by witnesses that end up being coaxed by the cops to testify falsely.
The first trial, in 1984, hangs. In the 2nd trial, Kyles is convicted and gets death. It takes 11 years to get the U.S. Supreme Court, where a bare 5-4 majority reverses his conviction. Lots and lots of evidence was hidden by the police, and it trickles out over the decade since Kyles was convicted. The majority concludes, in a lengthy opinion, that the suppressed evidence, as a whole, would have made too much of a difference in the trial. A great case, everyone should read it.
After the presentation I talked to Charles Denton and shared some of the backstory about Curtis Lee Kyles, that I mangled a bit at the time. I will share it with you now. After the 1995 U.S. Supreme Court opinion, Louisiana tried Kyles again, and there was a hung jury. They tried him again, and again there was a hung jury. One last trial, and it was again a hung jury. Thus, 5 trials in all, 3 of them after the death sentence was reversed. Louisiana finally tired of this, and dismissed the murder case against Kyles. He walked out of prison in 1998. He was on death row for 18 years. He was within 18 hours of being executed at one point. At every single trial, NEW discovery came out that the police had not disclosed. In other words, the police and DA hid evidence before every single one of 5 trials. The final analysis of the case is that it is pretty likely that Beanie was the actual killer, although law enforcement in Louisiana still think otherwise.
One final note. The dissent in Kyles v. Whitley was written by Justice Scalia, joined by (now deceased) Chief Justice Rehnquist, and Justices Kennedy and Thomas. Here is a tiny snippet of what Justice Scalia wrote, which I find fascinating in how wrong he and his fellow dissenters got the case:
"In any analysis of this case, the desperate implausibility of the theory that petitioner put before the jury must be firmly kept in mind. . . . The Court concludes that it is reasonably probable the undisclosed witness interviews would have persuaded the jury of petitioner's implausible theory regarding the incriminating physical evidence. I think neither of those conclusions is remotely true, but even if they were the Court would still be guilty of a fallacy in declaring victory on each implausibility in turn, and thus victory on the whole, without considering the infinitesmal probability of the jury's swallowing the entire concoction of implausibility squared."
Hmmm. In other words, there is NO WAY that this guy culd ever win, so why are we reversing his conviction? Oops.
Dennis R. Wilkins
Guest PD Blogger
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