Public Defender Dude

And You Thought You Had a Difficult Case.

2011-09-03T07:43:00.000-07:00

In New Orleans, they do things FAST. And some of the details tend to get blurred. Read this newspaper article from New Orleans:

The gist of it is that Luhron Gorman was in New Orleans with a friend, and they were running from the police. At one point Mr. Gorman and friend went into someone else's house to hide, wherein the friend robbed that family at gunpoint. The friend got away with $60. Mr. Gorman was arrested 2 weeks after the crime from a crimestoppers tip, and he starts confessing. He says he had no part in THIS robbery. He merely went in to make sure his friend did not hurt the 97 year old resident, and he never displayed HIS gun. But he also confessed that he had stolen the gun that he had on him from somewhere else.

Mr. Gorman was tried for 4 crimes within 24 hours, among which is the home invasion robbery and the possession of a stolen firearm. Although it is not evident from the article how it happened, his attorney, Public Defender Jessica LaCambre, "tried unsuccessfully to stop the testimony" of Mr. Gorman. I assume that that means that she told him not to testify, and objected when he insisted on taking the stand, etc. It appears that Mr. Gorman felt it necessary to testify, against the advice of his attorney, and that he didn't do well enough in testifying to save himself from being convicted. The jury convicted him of everything. Mr. Gorman now faces 99 years for the robbery, and 10 to 20 for the gun. At some point Mr. Gorman accused his Public defender, Jessica LaCambre, of having an inappropriate relationship with the prosecutor (I don't know what that means, but it always sounds bad), and of failing, I guess, to negotiate him a better plea deal. The article speculates that Mr.Gorman did this to either get a mistrial or lay the groundwork for an appeal.

Look, Mr. Gorman sounds pretty guilty of SOMETHING, because he confessed to numerous things. And he likely slit his own throat when he confessed to the police. Who knows how much he hurt himself by testifying, often a difficult proposition. I don't know anything about Public Defender Jessica LaCambre, but I will assume that, as a PD, she was doing what she thought was right for Mr. Gorman, trying to dodge one or two icebergs on what was obviously the Titanic. I've been accused of having an inappropriate relationship with DDA's before by clients because, God forbid, I was talking to the DDA about their case when they couldn't hear (or someone else's case, for that matter). Clients facing years in prison may be a bit paranoid, or even a lot paranoid, but, WOULDN'T YOU BE? I mean, if someone you don't know, who you don't trust, who you don't pay, is defending you it is reasonable to distrust that person. And with the horror stories defendants tell each other (too many of them true) about overworked PDs with no time, no experience, no compassion, no competence, it is all understandable. I don't know if Public Defender Jessica LaCambre, Mr. Gorman's PD, did anything wrong here. But I can say, WITH CERTAINTY, that this was a difficult case, a difficult client, difficult facts, and no client control. Bad day for the attorney, worse day for the client. I think we've all been there.

But.

Here's the things that interested and bothered me about the article. 1) The article states that the (bad) verdict capped off a contentious "Daylong trial." Really? All this was in a single day, so large a day that it had to be "capped off?". I don't know how things work in New Orleans, but wasn't there other things she could have done? If Mr. Gorman was going to testify, was there some mental defense that might have been pursued? Were there perhaps some legal flaws with the confession? Wasn't there SOMETHING that would have militated more than one day of trial? If 1 day is all that it takes in New Orleans to get, in essence a death sentence (by incarceration), then this is a bad jurisdiction indeed. That is a freight train that moves WAY TOO FAST. I my guy's getting that much time, I will make the DDA will earn it, thank you very much. And earning it means taking more than one day.

2) The jury convicted Mr. Gorman of the home invasion robbery by a vote of 10 to 2. The robbery that's going to get him 99 years. 10 to 2. 99 years. DO YOU HEAR WHAT I AM SAYING?!? A non-unanimous jury gets him 99 years? That's outrageous!!! What the fuck?!? And maybe Mr. Gorman had something going here, because two jurors surely DID buy what he was saying. I am being a little petty here, but maybe Public Defender Jessica LaCambre might have devoted a wee bit of time challenging this rigged procedure. It boggles my mind that a guy can get 99 years from a non unanimous jury. Oh, and since this was a grueling daylong trial, perhaps more time might have been spent picking the jury. Pure speculation here, but since Mr. Gorman is Black (his photo is in the article), and since New Orleans went through massive racial changes in its jury pool after Katrina (lots of African Americans left New Orleans after Katrina), maybe, just maybe, there were some Batson v. Kentucky issues here worth exploring? It's speculation, but I'm willing to bet 10 to 2 that I am right.

3) At one point Mr. Gorman was removed from the court because he was "disruptive," probably because of all those accusations he made against his Public Defender. According to the newspaper article, no explanation was given to the jury for his absence from the courtroom. Later, during that same (grueling) daylong trial, he was brought back into court so that he could be ID'd by the victim, after which Mr. Gorman testified. That sure doesn't sound right to me. Seems like there should have been a mistrial here, or at least a really strong admonishment by the judge.

Dennis R. Wilkins
The New PD Dude

Connick v. Thompson (2011) and Arizona v. Youngblood (1988) - Linked in Outrage

2011-09-01T15:27:00.000-07:00

I wanted to add an issue that I did not address in my last post about Connick v. Thompson (2011). To clarify, the facts of Connick v. Thompson are that D was convicted of an armed robbery. Later, D was prosecuted for murder, and D elected not to testify at his murder trial because of the prior robbery, and the fact that it could be used to impeach him. The robbery was used to elevate the murder to a death penalty case. It turns out that D didn't do the original robbery, and the DA knew it - they had overwhelming evidence that the robbery was committed by someone else, but they did not turn that evidence over to the defense. Blood from the perpetrator had been found, and the crime lab tested it, and found that the blood type was B. D's blood type was type O. The DDA never told the defense attorney about the blood of the perpetrator that was found and even tested, and the defense never knew to ask. The DDA had the completed test in his trial folder, showing that the perpetrator had type B blood, when the robbery trial began. No evidence was ever shown that the DDA knew what D's actual blood type was.

D was sentenced to death. After serving 18 years behind bars (He was very close to being executed at one point), D found out about the withheld evidence. With it, he was able to get both his murder and robbery convictions reversed. Because the evidence was so weak on his murder case, he was acquitted when the DA retried him. The robbery case was dismissed outright.

Thompson sued the DA's office, claiming that the DA deprived him of his civil rights by falsely prosecuting him, specifically, that the prosecuting DDA, as well as 3 other DDA's, knew about the withheld evidence, knew that it was exculpatory, knew that it proved another person committed the robbery, knew that that greatly impacted his murder case, but they deliberately withheld the evidence. The lawsuit was very successful. The jury sided with Thompson, and awarded him $14 million, one million for each year he was on death row.

The Supreme Court, in a 5-4 opinion written by Justice Thomas, reversed the lawsuit, and basically said that Thompson could NEVER succeed based on the facts of the case. Thompson had never shown that the DA ever knew about the withholding of evidence. The defense had never shown a "pattern of Brady v. Maryland (withholding exculpatory evidence) violations," required by the court to establish liability for the DA's office. In other words, the Court required Thompson to show that the DA had known about a pattern and practice of disregarding Brady duties and then failed to train the DDA's to properly comply with Brady duties. The fact that the New Orleans DA had had 4 other cases reversed for Brady violations was insufficient to show a failure to train the DDA's. Fun fact: Thompson never sued the DDA's who committed these egregious acts because, as the US Supreme Court has ruled before, individual DDA's working for the DA's office cannot be held personally liable for their acts. Final result for Thompson - he was framed by 4 different DDA's, spent 18 years in prison, 14 of them on death row, and he got ZILCH, even when a jury of New Orleans awarded him $14 million.

Here's why I write this post. In Justice Scalia's concurring opinion, joined by Justice Alito, Scalia wrote that, essentially, Brady material is purely that which is known by the prosecutor to be "favorable to the accused." In particular, because the DA had a blood test in this case that fixed the blood type of the perpetrator as type B, because the DDA did not know that D's blood type was type O, the DDA did not need to disclose it. In other words, when the prosecutor knows that there was blood taken at a crime scene that is likely from the perpetrator, and the police have had the crime scene test it, the DDA has no duty to turn it over UNLESS the DDA knows that D has a different blood type.

But here's the kicker - Scalia then quotes Arizona v. Youngblood (1988) 488 U.S. 51, 58, for the proposition that the prosecution team need not do ANY testing or preserving of evidence, and can only be dinged when the withholding is done in bad faith. Youngblood was a terrible decision, 6-3, that Scalia had joined. It turns out that it was a really, REALLY bad decision. You see, Larry Youngblood, the man with one eye who was convicted of kidnapping and raping a young boy for 3 days, and then convicted despite the fact that police failed to even TRY to get the semen evidence examined and instead had it "spoil" because they failed to refrigerate it, thus preventing Larry Youngblood's attorneys from having it analyzed themselves, yeah, THAT Larry Youngblood.

You see, after Larry Youngblood was convicted, the Arizona Supreme Court realized this was wrong and reversed his conviction, and let him go. Well, the U.S. Supremes stepped in, reversed the Arizona Supreme Court, and had Larry Youngblood sent back to jail. Although the majority opnion was not as obvious as Justice Stevens in its dislike for Larry Youngblood and the obviousness of his guilt (read Justice Stevens' opinion - it really is that bad. He basically says that, although he has misgivings with the majority opinion and the rule it was laying down, Larry Youngblood got a really fair trial and he was certainly guilty.), it is still pretty bad. The gist is: Hey, police are busy, they have no duty to help defendants and acquire evidence at the scene, or test it, or do much of anything to help the defendant because, well, we have a pretty busy system here. We can't go around questioning everything, especially convictions like these. So long as the police didn't CLEARLY have it in for Larry Youngblood, and they were just doing business like they always do, then Larry Youngblood is out of luck.

In 1998, Larry Youngblood got out of prison. Poor guy, while he was out of prison after the Arizona Supreme Court had temporarily freed him, he robbed someone of some stuff. With the extra time from the rape that he was convicted of, he didn't get out of prison until 1998. When he got out, he was sort of busy (and a little pissed off), and he failed to register as a sex offender. He was prosecuted for that, and his original attorney from his rape case, convinced of his innocence, handled the case again. This time, with new DNA techniques not available in the 1980's, Larry Youngblood was excluded as the rapist. Got that? It WASN'T him. It was another guy, someone who was in prison in Texas and who later pled guilty to the rape. Larry Youngblood dies in 2007, a broken man. From the state of Arizona he ZERO in compensation for his years behind bars. Here's the story: http://articles.latimes.com/2011/apr/03/nation/la-na-court-innocence-20110403

Let me clarify my outrage. Justice Thomas and 4 other justices shit on Thompson and kick out his lawsuit. They tell him that, despite the fact that he was pretty much framed (I don't know what else you call it) on a robbery, which directly resulted in him getting the death penalty and sitting 18 years in prison, 14 of them on death row, despite the fact that when retried he was found not guilty of the murder (the robbery was outright dismissed), despite the fact that he sued the DA and got a jury to agree with him and give him $14 million dollars, he gets NOTHING. You see, the DA didn't know what his staff was doing, and it isn't his fault that they had no idea what exculpatory evidence even is. Oh, and dn't bother even TRYING to sue the 4 DDA's who saw the blood test results, knew what they meant and how exculpatory they were, yet refused to disclose them. You see, those guys are all immune from lawsuits because they were DDA's. Then, in the concurring opinion to this travesty, written by Scalia and joined by Alito, Scalia basically says, hey, what are you guys in the dissent talking about? This wasn't even Brady evidence, you see, and the DDA didn't even HAVE to disclose the blood test, because no one ever showed that he KNEW that it wasn't defendant's blood type. Yes, the police collected the blood. Yes, the police knew that it cmae from the perpetrator. yes, the crime lab had it tested. But, apparently, the DDA who prosecuted the D never bothered to find out what D's blood type was, and certainly never told the defense about said evidence. Scalia then quotes a rule which fucked a guy back in 1988 and laid down a bad broad rule to prevent the "obviously guilty" from requiring the cops to, you know, do their jobs. But Scalia never even mentions or alludes to the fact that in the very case in which that bad broad rule was laid down, that "obviously guilty" defendant, Larry Youngblood, was actually innocent.

BTW - For whatever it's worth, and it probably is worth little, both Mr. Thompson and Mr. Youngblood are black, and poor. I honestly believe that the latter fact is a LOT more important than the former, but that is how I see it. I have no problem calling our justice system racist, but they ar much more fervantly and militantly against the poor.

They have no shame. They really, honestly, truly, have no shame.

Denis R. Wilkins
The New PD Dude

Actually Innocent? We Don't Give a Damn.

2011-08-25T12:45:00.000-07:00

This is a short post. I haven't posted in a year, so a lot of things happened that I didn't comment on. Here is a big one. In Connick v. Thompson (2011), the conservative majority of the U.S. Supreme Court ruled that even though a defendant was the victim of a prosecutor withholding exculpatory evidence, and a jury awarded him $14 million for the many years he spent on death row, he instead should receive nothing. You see, prosecutors are immune from lawsuits, and just because a prosecutor deliberately convicts an innocent man, withholding Brady material in the process, that doesn't mean you can sue his employer.

Here is a copy of the article from Slate.com: http://www.slate.com/id/2290036/ Enjoy.

Dennis R. Wilkins
The New PD Dude

Another Update on William Richards, FVI00826 - Actual Innocence is a Sham

2011-08-24T15:04:00.001-07:00

I posted more than a year ago about an excellent granting of a habeas corpus petition by Judge Brian McCarville. The defendant is William Richards. His case number is FVI00826. The essence of the case is that he was accused of murdering his wife by bashing her head in. After three mistrials, he was convicted and sentenced to life imprisonment. Then he was able to obtain favorable DNA evidence, and show that there were serious with the evidence presented against him at his trial. I mean, serious. Like, they framed him. Oh, and an expert that was hot and heavy against him kind of fully recanted his testimony and/or it was all shown to be BS. Mostly anyway. One of the few times it has happened, and certainly the only time that I have seen it, Judge McCarville granted the habeas corpus petition. It is CERTAIN that if he is retried, he cannot be convicted. Not with what we now know.

Then, on 11-19-2010, the California Court of Appeal wrote and unpublished decision REVERSING Judge McCarville's excellent opinion. Appelleate Court Justice Hollenhorst wrote the opinion, and he was joined by McKinster and Richli. All three are right wing Republican tools. The opinion is as terrible as it is disingenuous. Here is my summary of the opinion:

Too bad, so sad. We don't believe your new "evidence." You may have fooled Judge McCarville, but you won't fool us. This new "evidence" should have been brought forward at trial, and in fact some of it was. So it isn't really new "evidence." And the jury didn't believe the defense then, so, again, too bad, so sad. Oh, and just because someone who is crucial to your conviction is later found to be a complete liar and kind of, sort of, mostly admits it, to some extent or another, again, too bad, so sad. You lose. Yeah, we suppose that "actually innocent" people are kind of, sort of entitled at least to a new trial. But not your guy. Oh, and did I mention that we think your new "evidence" isn't very good? Oh, and Judge McCarville didn't apply the correct standard. We could tell you the correct standard, but we are pretty busy up here, denying all your silly motions. The standard is something like: The new evidence must undermine the prosecution's entire case and unerringly point towrd his innocence. We realize this is an impossible standard, but we're going to hold you to it. Oh, and stop spending so many days on these stupid hearings for murderers, Judge McCarville - we're just going to crap on whatever you rule on anyway.

Oh, and there were a LOT of case citations - I'll spare you those. I suppose that I shouldn't get too indignant over this local travesty of justice, but I can't help myself. Let me clarify: I KNOW Judge McCarville. He isn't some bleeding heart liberal. He calls them mostly like he sees them, but like most judges in this county, he is pro-prosecution. Remember, they are all elected, and they don't get re-elected by letting people charged with crimes go free. If Judge McCarville spends the time to do a habeas corpus petition and grants it, you had better damned sure believe that that was the right thing to do.

The case is currently before the California Supreme Court. I don't expect the Court to reverse the Appellate Court. I have just about zero faith in the California Supreme Court on criminal justice issues. They are a mostly zombie-controlled, Republican-appointed bench. I met the Chief Justice recently and she seemed nice, but she is another former prosecutor plucked from convicting people and put on the bench. Some of the justices aren't too bad. I like some of Justice Kennard's opinions. Justice Werdegar too, sometimes. The newest Justice, who hasn't been confirmed yet, Goodwin Liu, is promising. But he is just one guy. I am giving the California Supreme Court short shrift here because they have written some awful opinions in the criminal defense world for about 16 years now, when Rose Bird was forced off the bench. If they reverse the 4th Circuit, Division 2, I will be amazed. I will personally sing their praises. But I fully expect them to follow Justice Scalia's dissent (joined by Justice Thomas) in In re Davis (2009) 130 S.Ct. 1, wherein Scalia stated: "This Court has NEVR held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is "actually innocent."

In other words: Fuck you. We don't care how "actually innocent" you may be. So long as you got a "fair trial," you will be punished. Period. Finality is king. Never mind whether witnesses recant their testimony. Who cares? By the way, the remedy in the Troy Davis case was to remand the case back to the district court for a new habeas petition, which everyone agreed was without any power. Said petition was promptly denied, and the denial was then affirmed by the Eleventh Circuit. Troy Davis is now getting closer to execution. He got his "actual innocence hearing," and he got to call various witness that showed 9 of 11 witnesses who testified against him at trial recanted their testimony. 9 of 11? Really? Would 10 of 12 have done the trick? How about if all 11 had recanted? The U.S. Supreme Court refused to hear the Mr. Davis's appeal from the habeas petition denial. Here is a good discussion of where Troy Davis is at now: http://www.habeasbook.com/2011/04/another-dead-end-for-troy-anthony-davis/

The lesson here? Don't get convicted the first time. Because if you do, even if you can later prove you were actually inocent, to just about ANY degree of certainty, so long as you got a "fair trial," you're guilty. Period.

Dennis R. Wilkins

Oh, and I suppose that I am now the New PD Dude.

I was fooled

2011-08-22T15:47:00.000-07:00

I admit it. I supported Barack Obama. I was fooled. He is a corporatist, and he does not have the interests of most Americans at heart. Don't get me wrong - I am a Democrat, a liberal, a progressive, and I can't stand any of the Republicans running. But I am really and truly disappointed in Barack Obama. I will vote for him come next November. I have to. Any of the Republican pinheads running will appoint monstrosities to the U.S. Supreme Court. Justices Elene Kagan and Sonya Sotomayor have turned out okay for the criminal defense field. Not great, but it could have been a LOT worse.

But it will be with a sad and heavy heart that I will push the button for this man. He cares only about his campaign contributions, and he isn't interested in helping the poor, or even the middle calss. Hillary would have been better. Joe Biden wouldn't have, of course, but at least it would have been honest. That said, Biden would have protected unions. In fairness, I was pulling for John Edwards while he was putting it into that other woman, while his dying wife was, well, dying. So I've been fooled before.

All of that said, I can honestly say that as I have grown older, it seems clearer and clearer that our system is hopelessly corrupted toward the wealthy, and capable of only a minimum of fairness toward those seeking justice who don't have cash. More often than not, the poor who are charged with a crime get jailed and have to await a trial that stretches further and further out. The division isn't between guilt or innocence many times, but on whether the person charged is savvy enough to know the rules of the system. But overall, the system that I have seen, and keep seeing is blanketed with a hateful attitude toward the poor, a distaste for those of color, and most seriously, an anipathy towards the rule of law, the presumption of innocence and the requirement that DA's have to prove guilt beyond a reasonable doubt.

I also see the Public Defender as an entity more and more under attack. Whatever my feelings toward a particular administration, there is a constant and growing fear that the Public Defender will be outsourced to those who will do the job far cheaper, and with just about zero care for clients.

I will talk later.

Dennis R. Wilkins
The Guest Blogger
Public Defender Dude

Connect the Dots

2010-07-17T14:17:00.000-07:00

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

Further Reflections on the Marijuana Legalization Initiative in California

2010-05-26T13:02:00.000-07:00

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

The Marijuana Legalization Initiative on the November Ballot

2010-05-26T01:24:00.000-07:00

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

Update on William Richards

2010-05-24T21:50:00.000-07:00

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

Thinking about Kyles v. Whitley

2010-05-19T22:36:00.000-07:00

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

A DNA Exoneration close to home.

2009-08-11T21:05:00.000-07:00

An amazing thing happened in my courthouse yesterday: http://blogs.cwsl.edu/news/2009/08/10/california-innocence-project-obtains-reversal-of-12-year-old-murder-conviction/ Here is the text:

"Today, 16 years to the day after the murder of Pamela Richards, San Bernardino County Judge Brian McCarville granted the California Innocence Project’s request to reverse the murder conviction of her husband William Richards. Finding that new evidence points “unerringly to innocence,” Richards’s 1997 conviction of murdering his wife in their Hesperia, Calif., home was thrown out. Richards was convicted for the 1993 murder after two trials ended in hung juries.
The reversal marks the successful conclusion to an eight year-long process. In 2001, Richards contacted the California Innocence Project at California Western School of Law, a non-profit clinical program in which law professors, lawyers, and law students work to free wrongfully convicted prisoners in California. He maintained his innocence in the murder and sought the Project’s help in requesting a reversal of his conviction.

The California Innocence Project obtained new DNA testing on the murder weapon. Test results revealed that an unidentified male held the murder weapon and struggled with the victim. DNA testing on hair from under the victim’s fingernails also pointed to another person other than Richards. This evidence countered the prosecution’s claim that no one other than Richards or his wife were at their home on the night of the murder.

During the Richards trial, evidence was presented indicating that a “bite mark” on the victim’s hand could have only come from Richards or two percent of the population. However, the testimony provided by the bite mark expert was based on incomplete information and poor photos. Experts obtained by the Project were able to correct the distortion in the photographs and testify that Richards could not have been the person responsible for the “bite mark.”
The California Innocence Project also argued that fiber evidence may have been falsified by someone employed by the County. The prosecution claimed that a tuft of 15 light-blue fibers were found in a tear in the victim’s fingernail. According to the prosecution, the fibers matched those of the shirt Richards was wearing the night of the murder. However, members of the California Innocence Project discovered that photos taken just after the victim’s autopsy clearly showed no such fibers in the fingernail. After the autopsy, the victim’s fingers were severed and sent to a county criminalist for review. Sometime after that, the fibers appeared.

“We have been working on this case almost as long as the California Innocence Project has been in existence,” said Justin Brooks, Professor at California Western and Director of the California Innocence Project. “To say that I’m ecstatic with today’s decision is an understatement. William Richards has been living a nightmare for 16 years. First he had to deal with the murder of his wife and then he had to face his wrongful conviction and incarceration for the crime. What could be worse?”

Jan Stigltiz, Professor at California Western and Co-Director of the California Innocence Project argued successfully in his closing that the case was purely circumstantial.

“Other than the fact that Richards came home and found his wife, there was no evidence linking him to the crime. These cases are hard to win,” said Stiglitz. “But if you get a judge like McCarville who is willing to take a fresh look at the evidence, then wrongful convictions can be corrected.”

Founded in 1999, the California Innocence Project is a law school clinical program dedicated to the release of wrongfully convicted inmates and providing an outstanding educational experience for students enrolled in the clinic. The California Innocence Project reviews more than a 1,000 claims from inmates each year and has earned the exoneration of eight wrongfully convicted clients since its inception."

I have only a few notes. First, good job Judge McCarville. It takes courage to make the right ruling, and he clearly made it. Second, how, EXACTLY, did the photos showing that the fiber evidence was fraudulent get found, and why weren't they produced before trial? The key piece of evidence that likely lead the jury to convict was the fiber on the victim's broken fingernail, that was likely from D's shirt. That sounds big to me. There are photos of the V's fingers, cut off after the autopsy, that show the fibers in the broken nail. Pretty damning. But, behold, apparently sometime after the trial the autopsy photos show up, and the autopsy photos show the fingers before they were removed from the body, and there are no fibers in the broken fingernail. In other words, the fiber was not present at the autopsy, but was there AFTER the fingers were cut off and sent to the crime lab. How were those autopsy photos not produced before the trial? Third, How was the DNA missed? Was this a case where the DNA wasn't as reliable as it is now? Was it too expensive?

Finally, how many times will this have to happen for everyone else to realize that our criminal justice system is badly broken? How many guys are out there who didn't get their case before a decent judge? Who didn't have DNA evidence to "prove" that they were wrongly convicted? William Richards is lucky that the California Innocence project exists, that they took an interest in his case, and that they worked their asses off for him. Too many times, I am certain, the wrong guy gets convicted because everyone is in a foul mood about the crime, the defense attorney is not on the ball or is overworked, the DA is focused solely on convicting the guy rather than doing what is right, the police are too interested in closing their books to investiagte properly, and the judge is too focused on making sure the DA gets a fair trial, rather than the D. The juries are made up of ordinary, but usually conservative, people who want to do "justice," rather than follow the law. Reasonable doubt gets forgotten in the shuffle. In other words, the entire system evades accountability because no one is actually accountable. And even if the right guy does get convicted, when corners are cut, we lose any sense of certainty that we are, in fact, being just in punishing this person. That isn't right.

I know that our system is not perfect. But we should not have such drastic sentences, and certainly should not have the death penalty, when there is so much uncertainty and unfairness in our system. I wouldn't want to treat those accused of crime any worse than I would expect to be treated if I were accused. William Richards got screwed, and it is our fault.

What are we going to do about it?

Dennis R. Wilkins
The Guest Blogger

Wow, what a long time

2009-08-04T21:10:00.000-07:00

I have been very busy with life, so I haven't posted in 6 months. I see that PDDude hasn't posted either.

I am very burned out with being a deputy public defender. I used to enjoy the job, but now I don't. Suffice to say that I am an employee, and an employee who has been taught to fear for his job. Very sad that it has come to this.

There was a time when I didn't care. But now I have kids to support. A mortgage to pay. I have to conform to what the bosses want. I have come to realize that I must do exactly what they say, or I will be fired. It isn't about protecting my clients. It is about satisfying my bosses.

I believe that this country, and the State of California, are at a very crucial stage. Our legal system is melting down. The current budget crisis is goign to get worse and worse because it is the natural result of a defective system. We require an informed and motivated citizenry to make our democracy work. But we are overwhelmed on the one hand with ill-informed older people who "think" they understand what is going on, but really don't, and a swelling population of illegal aliens who have no say in the system. The poor are rapidly forgetting that that they have the power to vote, the illegals have no power to vote, and the old white guys who still have sway want something that is impossible to get - a rollback to the 1950s. we have a system that is beset with gridlock and preyed upon by those wealthy interests, such as banking and insurance industries, and the prison-industrial system, who can control our state government with a pittance of corrupt dollars. The disconnect is amazing.

Okay, enough whining, I guess. I still hate those old-style liberals who would constantly moan about things but would never actually try solve them. How about some predictions:

Predictions #1: The budget crisis will get worse. The only way to save our system is to honestly re-think how we do just about everything in Calfornia. Too long we have allowed ourselves to think "the little things don't matter." They do. WE CANNOT AFFORD THREE STRIKES - IT IS KILLING US. I was against Three Strikes before it was popular to be against it. I have railed against Three Strikes for moral reasons and for fairness reasons. Now we are actually closing schools to feed the beast. It's time to re-think crimes, sentencing, prisons, jails, mental health as it relates to crimes, the works. We cannot afford the system that we have, and destroying our future to keep people locked up is madness.

Prediction #2: The feds will not be able to get california to release inmates. In a way, it is a blessing. The anti-federal government attitude is going to harden the already bankrupt Republican Party in california, further alienating them from normal people. The 9th Circuit just ordered the release of 45,000 prisoners within 2 years. Count on the state to appeal, and the U.S. Supremes to REVERSE. It will be 5-4, but it will be reversed. And this is a good thing. Because then the State will be forced to solve this crisis.

Funny thing about crises - they often make the impossible possible. At some level too many people are actually worrying about services in California. Like Schools. Or libraries. Or electricity. Or garbage collection. Or health care. The costs of these things are set to spiral out of control in the next few years. We will have to fix these things. And in doing so, I think that it will make us stronger as a State.

Dennis R. Wilkins
The Guest Blogger

The Meltdown Continues

2009-01-02T20:01:00.000-08:00

Two articles sum up what's going on with the prison crisis in California. The prison crisis is best understood when we juxtapose our ridiculous sentencing policies, such as 3 Strikes, with our ongoing unreality of finances in California. They are both part and parcel of denial of reality by those who really run this state - the People of the State of California.

First the budget crisis. From "California Progress Report," an online publication about California politics and issues:

"Schrag: A Series of Bad Decisions Have Compounded Current Crisis
By Peter Schrag

This is usually the time for looking ahead, making resolutions, wishing for greater things. But in California we've locked ourselves into a mind-set and governmental processes that look like nothing so much as deliberate attempts to avoid thinking about the future, much less dealing with it.

Through term limits, we've created a Legislature that has neither an institutional memory nor members who can expect to be rewarded for long-term success, and thus, with rare exceptions, lack any motivation for leadership or inclination to sacrifice and compromise in the present.
We have refused to change a supermajority requirement, one of the few such absurdities in America, which allows any minority to veto any budget or tax increase. If five Republicans – three in the Assembly and two in the Senate – had been willing to negotiate such a compromise, the state would have had a budget long ago.

Their loyalty to an ideology trumps all others. This is the ideology of Grover Norquist of Americans for Tax Reform: Starve the beast. It is that ideology as much as any that has put the country into the fiscal and regulatory mess it's in now.

We have tied ourselves into knots with a combination of governmental decisions and waves of voter initiatives whose most common characteristic, whether liberal or conservative, is short-sightedness. Among others:

• Unfunded multibillion-dollar bond issues for stem cell research, high-speed rail, children's hospitals and for paying off past debts. With interest, the long-term cost of each will be double the advertised price.

• A $6 billion annual "spending increase" to replace local government funding lost through an impulsive cut in the car tax.

• Autopilot sentencing laws hastily passed in the wake of one heinous crime that continue to cost billions in prison expenses.

• An inflexible class-size reduction program pushed through without study or serious debate by a petulant governor wishing to punish the teachers unions. It costs $2 billion a year.

• An unfunded initiative extending pre- and after-school programs that costs close to $500 million a year.

• Corporate tax loopholes written into the tax code in flush times that easily matched the increased spending on education and other programs that were enacted in the same years.

• And the grandfather of them all: the convoluted, accountability-defying, state-local tax and revenue system spawned thirty years ago by the passage of Proposition 13 and the long string of state measures to bail out the locals that have been enacted in the years since.

Those bailouts inadvertently taught all the wrong lessons: that you can have your local property tax limitations and good services, too; that the way to solve any major problem was through the initiative, not through electoral politics; that the legislature and governor who bailed you out were irrelevant and often worse; that the citizen's first concern was not community but what he could get from it.

Those ballot measures were almost always designed not to be respectful of political minorities – their very essence was to get a 51 percent majority – or to serve the state's long-term interests.

They were usually drawn by deep-pockets groups, and advertised to address an issue of the moment. As new problems arise, the remedy is a fix for problems present, rarely for problems yet to come.

It's long been a truism that we're living on the investments and foresight of the past: our once-pioneering highway systems, now in terrible disrepair; the state's unmatched public universities, now increasingly struggling against the effects of declining public support; the statesmanship that created a great water system by linking the need for water supplies in the south to flood control in the north.

Like much of the rest of the state's infrastructure, that too is now superannuated, the victim of chronic neglect. The miracle of the infrastructure – and the tribute to its farsighted creators – is that it served the state so well for so long.

It helped drive the great California boom of the postwar decades – attracted the talented, ambitious men and women who made California the great center of technology and creativity it became. They didn't come for low taxes, but for good schools, outstanding research universities, parks, recreation and transportation.

California historian Kevin Starr asks where the great leaders of California's future will come from. Where are the Pat Browns, the Clark Kerrs, the Earl Warrens, the Goodwin Knights, the Phil Burtons? Where are visionaries like the philosopher Josiah Royce, born in 1855 in Grass Valley, who believed that Californians would always understand that their interests lay in community, not self-aggrandizement?

What they shared was a vision of the future, a fundamental optimism about this place. It's that kind of hope and optimism, and that kind of people that, at this time of year especially, are so much worth wishing for.

Peter Schrag is the former editorial page editor of the Sacramento Bee. This article is published with his permission. Posted on December 30, 2008." Here is the website where I got this from:

http://www.californiaprogressreport.com/2008/12/schrag_a_series.html

Juxtapose this with the prison crisis. From an online article by New American Media.

"Prison Overcrowding Crisis Unhealthy for All Californians

New America Media, Commentary, Donna Willmott, Posted: Dec 04, 2008

Editor's Note: California prisons have become the largest mental health system for the poor, the largest battered women's shelter, and the largest system of public housing, observes NAM contributing writer, Donna Willmott, M.P.H. Willmott is the Family Advocacy Coordinator at Legal Services for Prisoners with Children and teaches in the Health Education and Community Health Studies Department of City College of San Francisco.

As a public health professional who has spent over 10 years advocating for prisoners' rights, I am dismayed to see the health of prisoners once again become a political football.More than two years ago, the federal courts acknowledged what every prisoner in California already knew – that there has been an "unconscionable degree of suffering and death" in our prisons. With all due respect to those who are working under the federal receivership to reform prison medical care, most of the systemic issues that underlie substandard care have, in our clients' experience, remained essentially unchanged. While the Receivership has succeeded in hiring a new cadre of qualified medical providers, the fact remains that progress has been painfully slow for the 178,000 prisoners trapped in this system, and many will continue to suffer needlessly in the meantime.

Overcrowding is at the root of this paralysis. The Receivership proposes to build 10,000 new medical and mental health beds, at a construction cost to taxpayers of over $7 billion dollars. Even if this project had the support of the legislature and received the required money, the crisis would not be solved. It's not possible to build and maintain these facilities, then recruit and retain sufficient numbers of well-trained staff for this constantly expanding enterprise without bankrupting the state. Without shrinking the prison system, it will be impossible to provide the required constitutional level of medical care to prisoners.

Decades of failed public policy frame this crisis. Years of a tough-on-crime approach have spelled disaster for the health and well-being of poor people and people of color who are incarcerated at dramatically disproportionate rates. We have tried to use prisons as an answer to social problems, with devastating results. Our prisons have become the largest mental health system for the poor, the largest battered women's shelter, and the largest system of public housing. The social cost of decimating our already frayed safety net in order to expand prisons is beyond calculation. We sacrifice precious community resources to maintain a prison system that creates instability, ill health and disease, while failing to keep us safe.

Perhaps taking a page from history will help us envision a new solution to this crisis. Over 150 years ago, Rudolf Virchow, the founder of "social medicine," was sent by the German government to report on the causes of a devastating 1848 typhus epidemic. Instead of recommending the simple solution of more doctors and more hospitals to avoid catastrophic loss of life in the future, Virchow called for full employment, universal education, and agricultural cooperatives as the path to preventing future epidemics. He analyzed the root causes of the epidemic, and called for a fundamental reconstruction of society to create conditions in which people could be healthy.

If Virchow were with us today, it's likely that he would be horrified by the idea of building 10,000 beds for prisoners who are extremely frail or mentally ill, people whose incarceration couldn't possibly serve public safety. He would no doubt want us to put our resources into sentencing reform, releasing low-risk prisoners, redirecting our state budget towards universal healthcare, quality public education, training and employment opportunities, and expanding drug treatment. In short, we should be ensuring the conditions in which people can be healthy as the basis for safe communities.

If Californians continue to pour billions into massive incarceration, it will mean more pink slips to school teachers, more children turned away from their doctors, more seniors denied in-home aid, more families forced into poverty and homelessness. What will it take to bring health care to California prisoners? It'll take a new way of looking at crime and punishment, a fundamental shift in our priorities and a commitment to social equity as the foundation for public safety. Bricks and mortar can't solve this one." Here is the website where I got this from:

http://news.newamericamedia.org/news/view_article.html?article_id=052dc71bc4ce373b68987e05bdcea735

Put these two together and we have a very clear picture of where we are and where we are going: nowhere fast. Our economy is melting down, and we cannot afford to pay for the basics. Our infrastructure has fizzled. And Three Strikes, as well as the bloated, horrifyingly bad and ridiculously expensive prison system in California is still a major cost in all of this. But no one, NO ONE is openly talking about sentencing reform.

Why? Why?

I believe it is because so many people have been such a huge, whopping lie about our cruel, unfair, and unrealistic sentencing policies, and their social costs, that standard reform is now impossible. The system will have to melt down, complete with a massive reduction in social services statewide, coupled with prison riots, for a full sentencing reform commission to be called into action. And even then change will be too slow.

No, folks, I'm afraid that we have to lose a LOT more money in California before we ever agree to actually fix this system. But it will happen. Sooner than you think.

Dennis Wilkins
The Guest PD Blogger

The Mental Health System

2008-12-10T19:51:00.000-08:00

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?

2008-11-16T11:04:00.000-08:00

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

2008-09-08T09:25:00.000-07:00

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

2008-09-02T11:59:00.000-07:00

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

2008-09-01T23:51:00.000-07:00

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

2008-08-29T15:12:00.000-07:00

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

2008-08-29T09:41:00.000-07:00

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

2008-08-29T09:16:00.000-07:00

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

2008-08-28T00:08:00.000-07:00

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

2008-08-23T13:46:00.000-07:00

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

2008-08-23T12:58:00.000-07:00

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

2008-08-21T12:18:00.000-07:00

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

2008-08-21T11:00:00.000-07:00

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

2008-08-20T09:44:00.000-07:00

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

2008-08-19T16:47:00.000-07:00

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

2008-08-12T08:44:00.000-07:00

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

2008-08-09T23:25:00.000-07:00

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

2008-08-02T23:14:00.000-07:00

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

2008-07-25T22:24:00.000-07:00

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

2008-07-20T21:58:00.000-07:00

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.

NY Times Article Attempts to Undermine Exclusionary Rule

2008-07-18T20:39:00.000-07:00

The exclusionary rule is one that says if the police violate the 4th amendment of the Constitution (against illegal searches and seizures), then the remedy is the exclusion of that evidence. Sounds simple, and drastic, enough.

Practically speaking, it almost never happens. The exclusionary rule has been one which the police have used as their basis to fabricate probable cause over the last 50 years, not one which has overly restricted them in most areas they fight the most crime (note that the exclusionary rule has probably had great effect in wealthier neighborhoods where there is less crime - the police there are more afraid of the power of the residents to wreak havoc on them if they violate citizen rights there - there is little concern getting in trouble for violating rights in poor minority neighborhoods unless it's caught on camera). It used to be that the police could invade your home with impunity, arrest you, search you, violate all of your rights, and there was nothing you could do about it. In a case known as Mapp v. Ohio, the Earl Warren Supreme Court extended the exclusionary rule to all state actors (meaning all branches of state and local law enforcement).

The facts of Mapp were instructive, and they are actually recited in this new NY Times article that has spurred me to write here. The police basically went into the home of a woman they did not like, manhandled and abused her, searched it carefully, and arrested her for, get this - obscenity. If you ask me, the only obscenity was the police conduct. The Supreme Court agreed, and determined that the only way it could ever deter police conduct like this was to let them know that all of the fruits of their efforts would be in vain in the future if they did this, and hence, the said that any fruit of the poisonous tree must be discarded and cannot be used against a defendant.

One thing the Times article mentions is that this is an area in which the US gives far greater protection than in any other Western society to the accused. Evidently, the fact that we are out of sync with other countries bothers conservatives on this one (they show no similar concern when it involves things like, say, the death penalty).

However, a few things must be noted.

Police in this country are probably more politically powerful and involved than in any other country. Police unions give huge sums to politicians, police chiefs are mainstays of any politician's campaign, and few people ever dare to cross the police in any election here. What does that mean - it means that in our adversarial system, the police and prosecution hold nearly all of the cards - if the police violate the law with impunity, and they are not punished immediately, they really have little fear of lawsuits down the road, as most of these defendants make terrible plaintiffs. No one will ever take their case, and they'll probably lose anyways.

In this country, the punishments for even minor crimes can be so dramatically more severe than in other countries, the effect of even a little bit of police fudging can have the immediate effect of people spending the rest of their lives in prison. The Canadian case contrasted in the article talks about a man who was pulled over without a front license plate and the police found 77 pounds of coke in his car - he got 5 years. I can tell you, in many states, he'd get life. In California, he'd probably get 15-20 years, and in the federal system, he'd probably do more. The police mistake in that case was that the suspect's car did not need a front license plate because he was from a province that did not require front plates, but was driving in one that did so require them.

In the US, there is an exception called "good faith" (or the Leon exception, named after the Leon case). This exception has nearly swallowed the whole rule, because in a case such as the Canadian one, the officer could simply say "I made an honest mistake, I never knew that Alberta law did not require front plates, and he was driving in Ontario, so I thought he was violating Ontario law." In Canada, even a small mistake like this was a big deal, in the US, it would barely merit mention unless it was a huge crime, and even then it would only be a minor footnote. There would be no backlash against the police for that.

The final thing is, Judges are extremely reluctant to throw evidence out and anger the police, either by calling their judgment into question, or by calling them a liar. I have won only a handful of motions to suppress in my career, despite doing this for nearly 15 years, and running hundreds of them. Consider the OJ case. If ever there was a situation where the officers clearly lied as a basis to jump his wall and search his residence, this was it. They fabricated probable cause so Mark Fuhrman could then find the bloody glove on the path. The Judge in the case found that the detectives showed reckless disregard for the truth when they recounted why they did the search. Everyone clearly knew that they were lying (they also broke into his car and found evidence there). However, the evidence was not suppressed. Why not? Because Judges will bend over backwards to ensure that they don't piss off police (who will then withdraw support from them, and help run candidates against them, possibly costing them their jobs). So, such a few number of motions to suppress are ever granted, the rules have become almost meaningless.

Bottom line - as nearly meaningless as the rules have become, they still paint very specific rules for the police to follow which protect all of us, criminals or not, every time we come in contact with the state. They ostensibly protect us in our homes, that police can't just break down our door with impunity, so they can't pull us over for a minor traffic infraction, take us the station, and search our cars top to bottom for no reason.

On the other hand, the rules are strict, and the result has probably been that this leads to a greater culture of police fabrication of evidence than any other thing in the law. The problem is, once the line of fabrication has been crossed, so easily and so often, it is hard to ever tell the difference between lying about probable cause to nail a seemingly "guilty" person, and lying about actual evidence to nail that same "guilty" person.

All in all, without it, there will be functionally no check on law enforcement, so when the Supreme Court hears a case challenging the whole basis of the exclusionary rule next year, cross your collective fingers that your freedoms remain somewhat intact, and the rule remains in place.

Reflections upon the law and Democracy

2008-07-18T10:32:00.001-07:00

Neither I nor PD Dude have had many comments about our discussions about initiatives, which is really a shame. His earlier post was awesome, and mine was a riff about Prop. 13. One problem with talking about initiatives is that they are boring. Most voters are normal people, and normal people just don't understand the inner workings of government. Call me whatever you want, but it is true. Most normal people are more concerned with raising kids, going to work, paying their bills, and leading their lives than in figuring out how the law and government works. In fairness, I was like that until I went to law school. And I never saw anything wrong with it until I actually understood how something becomes the law. Now I know the truth.

As an example, we have a graduated income tax. No one likes paying taxes, and for most of this country's history we have had no income tax. This doesn't mean that income taxes are wrong - for a pretty good chunk of our country's history we also had slavery and we all agree now that that wasn't right - but it took a Constitutional amendment (the 16th) in 1909 to have an effective one (disregarding the Civil War income tax). Most economists agree that a graduated income tax is pretty fair, and that the more money someone makes, the more taxes he/she should pay. The higher the income, the higher the amount of taxes. You derive it from our fair land, you pay it back to help everyone else.

But the truth is that so much lobbying goes on about taxes, of all sorts, that any discussion of "fairness" generally gets thrown out the window immediately. Any political representative, at ANY level, has to consider his/her own political survival. In 1993 Democrats in Congress passed Clinton's tax plan, with a small increase in taxes on the really rich, and that tax plan is largely credited with balancing the budget in the Clinton terms. But so many Democratic congressmen and women lost their jobs in 1994 that I seriously doubt we will see that kind of political will any time soon. Despite the fact that the tax increase was the "right thing to do," those who voted for it were punished severely. Likewise, with oil companies making the vast sums of money they are these days, and with people truly hating oil companies so much, clearly price gouging the way they do, why is that we haven't had ANY good debate about an oil company "windfall tax?" A bill was voted on in Congress, but how long were the hearings? Does anyone remember them? I'm not crying out "conspiracy" or anything like that. I'm just saying that the oil companies know how to pay attention to the laws and lawmakers and have the money to do so, and they get, usually just about anything they want. And normal people, going to their jobs and worrying about their families? They get just about as much government as they put in.

When I am at home I love watching C-Span. My wife and kids scream and moan at me (not really, but they do complain) and instead watch some other crap on TV that "relates to them." You know, some cartoon (for the kids) or Bridezillas, or some other crap that entertains them, yet gets them farther and farther away from knowing anything about the world. Sorry, but it's true - most Americans are like my family. They are interested in what is important to them and quite indifferent to "government," except when it comes time to vote or whatnot, and will not take the time to inform themselves about what is going on.

That being said, our various levels of government are also slow to get voters involved. If they truly cared about Democracy, all voting agendas would be available online in conspicuous places. Even city councils would advertise their meetings and would have agendas available online, and would make sure that people knew what was going on. But they don't usually because they are afraid that if more people really know what is going on, and if more people read the bills and understood who stands to gain, more people would show up and slow things down (i.e. - participate). All politicians are more concerned with making themselves look good to get re-elected, rather than getting normal people involved, because that is the nature of politics. And, in fairness, because getting elected to just about any office requires advertising and money, you can't expect a politician to throw away what he/she has earned for something abstract. Like Democracy.

Enter the initiatives in California. These initiatives are paid for by some special interest. Call it whatever you want, but those things take money to get on the ballot, because initiative petitions don't just sign themselves. You have to pay signature gatherers a small fortune to get the signatures to qualify it for the ballot, the initiative has to be drafted by attorneys to make sure it is workable, and then someone has to bankroll television and radio advertising. And even the most well-intentioned initiative often gets hi-jacked by OTHER interests, interests that have little to do with the those of the drafters. Here's a good example.

Recently the Cal. supremes ruled that the anti-gay marriage initiative violated the California Constitution, and invalidated it. In re MARRIAGE CASES (2008) 43 Cal. 4th 757. The anti-gay marriage initiative was put on the ballot in 2000 by some family values group. But that group couldn't and didn't bankroll the initiative. The funding behind it was right-wing groups, because 'family values voters' are traditionally motivated to vote on these kinds of issues. And they did in 2000. A LOT of money went into this initiative, and it passed by a pretty fair margin. But I remember when it was on the ballot, and I knew even then that it had a fatal flaw. The initiative did not modify the California Constitution, something that has a right to privacy, an area where gay rights had already been recognized in some small degree. This could have been fixed by essentially obtaining about ten thousand more signatures, a drop in the bucket compared to the number that were signed.

The upshot of the story is that this little flaw, the failure to have Constitutional amendment, rather than just a simple initiative, resulted in an otherwise conservative Supreme Court invalidating this initiative. With all that money and access to lawyers, why didn't the right wing, especially the Republican Party, not see this error? Answer: I am sure that they did. I was it, and I am a nobody. Of course they saw it. But they didn't CARE about what the initiative did, or even whether it passed. They wanted those voters at the polls for other reasons, to vote for their people, and to vote against the Democrats. And now they get a two-fer - in a year when Republicans are desperately searching for ANYTHING to argue about, they now have a new anti-gay initiative on the ballot to bring voters to the polls, this time modifying the . Whether it actually motivates Republicans to vote or not (gay bashing just isn't as juicy a topic as it once was) remains to be see. Oh, and I'm not saying that those who bankrolled the first anti-gay-marriage initiative KNEW it would invalidated - I am only saying that they really didn't care whether it passed and what effect it had. That's why they drafted it so carelessly.

Look at all those initiatives that were passed to build this project or that project. People who voted for them thought, "hey, finally, we can bypass the do-nothing legislature and the know-nothing governator and get roads built." Pools of money were established for the projects. Billions of dollars going into separate coffers to do the will of the people. Meanwhile, legislators of both parties were further allowed to abdicate their duties and say: "I can't get this passed because of obstructionists in the other party - why don't you vote for it?" And so, billions of dollars were borrowed in bonds for these wonderful projects, all sitting in little pools, read to be used. You know what's coming, right?

Here's the headline from the LA Times today: "Legislature considers raiding voter-approved funds. Money earmarked for transportation and government services would help close massive budget shortfall. Schwarzenegger says it isn't a good idea but doesn't rule out signing off on it." Did you really not see that one coming, people? Did you really think that with the budget 15+ billion dollars off that our legislature would take those funds? Do you want them to shut down the schools? The prisons? What do you want them to shut down?

This, in essence, is what our Democracy has become. Far too many uninformed voters who refuse to do their homework, constantly wondering why, WHY things are so screwed up. Answer: You're not paying attention. I was a Republican a long time ago, before I knew what the party really stood for. I was told that Republicans are hard-working (most are), they believed that people should be responsible for themselves (they ought to be), they shouldn't rely on government to hand them everything (they shouldn't), and all sorts of other neat stuff. I still believe those things today. But the Republican agenda has a lot more to it than I signed on for. And, in a way, I was committing citizen malpractice for not knowing the things that my name was being signed onto, if you will, the sins being committed in my name.

Our law today, especially criminal law, has been on autopilot. Our Democracy is moribund. The horribly broken 2000 presidential election, where obvious fraud was committed, happened here. Not some 3rd world country - here. And our criminal justice system, once vaunted as being one of the fairest one around, has become a sham. And it is our fault.

Now, what should we do about it?

Dennis Wilkins
The Guest PD Blogger

Proposition 13, the Scourge of Propositions (and a little bit about the CCC)

2008-07-17T09:08:00.000-07:00

I was going to respond to PD Dude's excellent post, but my response got so long that I had to create a new post instead. I agree with EVERYTHING PD Dude said in his post. But more attention needs to be focused on the big "successful" proposition, Prop. 13.

But before I discuss Prop. 13, I will take one moment and point out that one initiative has actually been successful, and that is the one that created the California Coastal Commission. The California Coastal Commission has many, MANY flaws, and even in good times has been run in a troubled manner. There are areas along the beach where a homeowner cannot post a "no trespassing" sign, even if allowed, without approval of the CCC. And don't get me started about the building permit process anywhere you can see the ocean. That being said, California has a long, LONG coastline and the vast majority of it is accessible to the general public, largely with no fee, and that is not at all like most other states, where the coastline is privately owned. Without the CCC, and the initiative that created it, this would never have been possible. Thank you initiative process for this one. Now on to Prop. 13.

The initiative process is California is completely broken and in desperate need of repair. Proposition 13, the holy grail of propositions for the right wing, the anti-tax right wing, was and is a disaster for California. Why? Well, first the funds that used to be generated by localities like cities and counties were stripped from them and they went directly to the state coffers, making regional control impossible. For example, a city that is prosperous now no longer has the power to tax - it must rely on whatever the state doles out for revenue. One of the exceptions is sales taxes, in that a city gets 1/2 of one percent of all sales taxes. This creates an incentive for those "big box" stores like Costco that everyone cries about because of traffic and whatnot. The cities therefore have an incentive to have as much sales revenue going on, and as many homes being built as possible (the cities also get one-time taxes for schools and city improvements from new construction - plus Mello-Roos taxes, also on first time homes and other construction). This creates an incentive for cities to sprawl rather than build wisely. Parks, schools and libraries are built only when absolutely necessary because they cost the city a lot and have no revenue enhancement, and in fact are only built when the state pays for them (plus some help from the feds on schools).

In the meantime, property taxes for all properties not sold since 1978, including commercial properties, have been stagnant. A friend sold his house in Huntington Beach in 2000 for 600k. Until he sold it his property taxes were $362 - per YEAR!! Businesses often have not "sold" their property, so no new valuation has been done since 1978. Imagine a store in a posh are that is paying less than $600 per year in property taxes. Meanwhile, new houses right next door are paying through the nose on property taxes to make up the difference. It is irrational and unfair tax policy.

Because Prop. 13 is an initiative, only a 2/3 majority of both houses of the legislature can change it. Who has the courage to change it? In the meantime, our finances in California get screwier and screwier. That $400 speeding ticket isn't a reflection of the crime, it is a way for municipalities and counties to pay for their courts and jails. The explosion of fines that criminal defendants cannot pay (and the exorbitant and increasing court fees in civil cases) and that hampers any thought of rehabilitation (ask a PD what probation is more concerned about - rehabilitation of a defendant, or making him pay fines, and you will get a clear answer - probation wants their money) can be directly tied to Prop. 13 and the funding crises it created.

The good news is that the more dysfunctional it gets, the more gridlock comes in and the less able the state is to handle even simple problems, making the likelihood for real reform more likely. We are coming to a time when California will have no choice but to have a full-blown Constitutional convention to change the very basis of California law.

Dennis Wilkins
The Guest PD Blogger

The Proposition - The Scourge of California

2008-07-13T16:17:00.000-07:00

Some of the posts below, and the comments to them, have brought up what I think is California's greatest scourge - the initiative.

Originally, this was created by progressives at the start of the 20th Century as a balance to the entrenched conservative interests that ran the state up until then. Sinclair Lewis was running for governor (he lost), and entrenched conservative interests stopped him. Out of this was born some of the progressive changes to California that exist to this day - the chief one being the initiative process. (I realize that this is a very sketchy description of how the process came to be, I only mention it at all to note the dichotomy of the fact that it was created by progressives, and has since been used to great effect by conservatives).

The most well known proposition in California's history was Proposition 13, which slashed property taxes, rolling them back to their 1975 rate, and it put a cap on spending and taxation, making it impossible to raise taxes in the state without a 2/3 majority in the legislature. It also capped individual property taxes on a property so that the properties assessed value could only go up 2% per year (starting over again every time it sold). Conservative proponents said that the liberals were being Chicken Little, claiming all sorts of ills like closing of parks and after school programs, summer schools, cutting local governments and services to the bones, etc....

Perhaps the biggest mistake of the Democrats running the legislature in 1978 was that they tried to accommodate those cuts and make do, rather than cut government as dramatically as it should've been cut commensurate with the degree of cuts made. They resorted to gimmicks, created a lottery, cut things slowly, raised fees, but the fact of the matter is, California is a shell of it's former self due to Prop 13. Schools have never recovered, infrastructure is much worse, after school programs were dropped, and kids formed their own after school programs without any supervision (there's no doubt, growing up in California, that I can tie the rise of gangs to the late 1970s, and early 1980s, as Prop 13 took full effect.

The reason it was a mistake not to cut everything was because it would've let people see the quick results of their visceral votes at the ballot box. People thought they were sending a message, but they still wanted infrastructure, services, schools, and things of the like. In other words, they were able to make a 2 second protect, and screw over the state as a result.

Other initiatives have quickly followed, but the crime initiatives have been the ones that have really wreaked havoc on the state. As Dennis has written about below, and as others are commenting on, we have passed a series of initiatives that have essentially mandated huge increases in prison and crime budgets - often so that we can imprison 40 year old men for the rest of their life for stealing things or using drugs. The men - no longer a physical danger to others - have old convictions but have grown out of their violent phases. This is no concern to the people who helped push the original 3 Strikes (although, it should be noted that the grandfather of the murdered girl Polly Klaas, in who's name 3 Strikes was pushed through, has come out against these applications, indicating that he never thought the purpose of 3 strikes was to put away non-violent offenders for life).

Other initiatives preceded and succeeded 3 Strikes, such as a recent one which mandates lifetime GPS tracking of sex offenders, and prohibits them from living within a huge distance of schools and parks. This has been pushed in other states with disastrous effect, something that is happening here now. People who have been forced to register now can't live in places they've lived for a long time, and they can't even live in whole cities. They've been forced in many cases into homelessness, they've lost jobs, they've been pushed underground, and the stability that helped ensure that they would not re-offend has been taken away. Many feel no need to continue fighting the demons that they thought they had vanquished - life in prison is no different than the lives they're now leading. This, of course, will lead to greater sex crimes (whether this will make the proponents of these measure happy or sad is debatable - to the extent that any sex offender does not re-offend, he is a walking example of everything the tough of crime people having said as being incorrect. If they were leading good lives, get pushed into homelessness by these laws, and re-offend as a result, the laws' proponents will be able to say "see, I told you so." So, I'm not sure what the goal is among the measure's proponents).

All in all, the ability of lawmakers to sit down and say "what is best for California," "what is working, what isn't working, and what can we change" is impossible. The reality is that all levels of government are hamstrung by these initiatives, and no area is hit as badly as the criminal justice system. The prison system may go into a receivership soon because it is so big, so unmanageable, and so expensive. The result is that a federal referee overseeing the system may take over the system, force the government to give the system $5 billion more, or start releasing huge numbers of criminals from prison. I can assure you he will not do it in the most careful manner, checking to see which are the most violent, which should not be there in the first place, which should be first in line.

The reason is because people are so easily bamboozled by the titles of initiatives, by simple advertising (remember what Dennis said about the 3 strike initiative in 2004 and Arnold's commercials against it), and they lack the sophistication to read through the initiative and understand what it says. The result is government by 30 second sound bite on TV 3 weeks before the election. It has not served this state well.

I was going to write a response to earlier responses. . .

2008-07-09T10:11:00.000-07:00

. . . But it got so long that I have to make it into another post.

First, thank you all for the wonderful comments. I apologize for the clerical errors in my other posts, but if I don't catch clerical error immediately after I've written the post, I can only modify it for a short time after I post it. I see them now and the errors are glaring - I will try to do better in the future. But I would much rather post SOMETHING, even if it has errors, than sit on my words until they are, well, perfect. And I seriously doubt what I say will EVER be perfect.

I first want to respond to Pat Dazis, who responded to the last post about 3 strikes and the prison crisis. Pat Dazis said that his(her?) son was killed by someone who eventually got 75 to life, and called that person a monster. What can I say other than I am so very sorry for Pat's loss. I hope and pray to God that my family never suffers from such an abhorrent criminal act as your family has suffered. The fact that Pat is willing to respond to such a discussion, and respond with equanimity, coherence and some compassion, shows great character on Pat's part. I would think that suffering from such a terrible crime would make a person want to imprison ANYONE convicted of ANYTHING for life (or give them the death penalty). Pat clearly disproves this thought with Pat's fair discussion. Thank you, Pat.

I will point out to Pat that Pat's comment about sex offenders and pedophiles, which although I disagree with it, I do not disagree with it entirely. Pat suggested that very low level offenders be taken off the sex offender registry, with which I agree, but then went on about dangerous pedophiles whole molest anyone, male or female. This is overblown and is at the heart of sex-offender hysteria. We have trouble finding out who really is a pedophile. Is it the priest at the church? The YMCA leader? The teacher? The criminal breaking into homes? We don't know. But the truth is that sex offenses are still uncommon, and the most prevalent sex offense is between older men (sometimes women, but usually men) and girls and/or boys. Not forcible sex offenses, but molest-type sex offenses.

One point that ought to be considered - many states, like New York, have an age of consent that is 16. We prosecute in this state many men for such sex that in other states is not a crime. Something to consider.

Did you know that the recidivism rate for sex offenders is LOWER for most other offenders? Lots of research shows this. It is true that there are a small number of really bad people out there, but in our haste to catch those few really bad people, we are willing to scoop up a large number of not-so-bad people and screw them. Michale Mullen murdered two sex offenders in 2006 in Washington, and was on his way to kill a 3rd when he was caught. He found those names on the sex offender registry that all offenders had to register in, and that registry was made public. Those two murders were very preventable, and were caused solely by the fact that their names and addresses were handily available on the web. How is that fair?

In California sex offenders can now live no closer than 2000 feet from a school, park, or other place where kids gather. This is the result of Jessica's Law, passed overwhelmingly by voters in 2006. Is this fair? Where do these people live? Los Angeles County loves the result of this initiative because now their sex offenders have to live somewhere else - no sex offender can be placed within their county. In a way it is good, because now, finally, there is an incentive for a city to build schools, parks and libraries: it keeps the sex offenders out. On the other hand, maybe this might be a good trade off - we sacrifice those members of our society we don't like and get some schools, parks and libraries in trade. Not a bad deal, huh? But we all know what will really happen - no new anything, just another class of citizens scapegoated and marginalized.

What we need is a registration system that is confidential, and that works. Once the offender has done his prison time, he can go about rebuilding his life. Make him wear tracking bracelet if you must, but only for a couple of years. Make him register for the rest of his life, but keep the list confidential - only law-enforcement officials get to see it. In Florida there are sex offenders living under bridges because they aren't allowed to live anywhere. How can that offender ever be expected to rehabilitate and become a productive member of society when treated like that. If our society keeps treating sex offenders like this, then perhaps we should save everyone the time and money and just shoot them. And if you do, let me so that I can flee with my family to another country. You know, 'first they came for the Jews and I said nothing, because I wasn't Jewish. When they eventually came for me I tried to say something, but there was no one left to hear me.'

There are going to be crimes committed in our country and our state - we will always need a criminal justice system. But the more we spend on prisons, on draconian sentencing laws, on wiretapping American citizens looking for fictional terrorists, the less we have for everyone else. And the more damage suffers our precious Constitution, that revered document written with the blood of patriots.

I hope that people realize that today's sex offenders/criminals/terrorists are pretty darn similar to yesterday's communists, anarchists, socialists, and labor union activists. They are all scapegoats in many ways. 30 years ago molestation was usually treated as a misdemeanor in California, and rape wasn't much of a crime. Those days are long gone, and I agree that they should be. But we have now gone so far the other way that we are coming perilously close, I would argue that we have already gotten there, to the point of being a fascist society. How we treat the least of us, those convicted of crimes, shows what kind of government we have. As of now, folks, we have truly become more of a fascistic government than we ought to.

Dennis Wilkins
The Guest PD Blogger

Three Strikes, The meltdown of California's prisons, and all that jazz

2008-07-08T10:54:00.000-07:00

These are two separate events and phenomena, but they have truly coalesced together. California already had a booming prison population before Three Strikes, and that population has continued to increase. Likewise, sentencing law in California had already increased greatly by the time the 1994 Three Strikes campaign began. Three Strikes, and the sentencing laws before it, have so greatly expanded the amount of time that people face when they go to prison, and have made some of even the more innocuous crimes in to serious matters, that it is actually hard to contemplate.

As an example, in 1998 I was a fairly new attorney and deputy public defender and I was representing a client charged with a PC 245(a)(1) – assault by means likely to cause GBI. It was a conservative judicial district, and there was a plea on the table which was pretty much standard for that area at that time – the offer was plead to the 245 and get 180 days CJ, straight time. It was basically a fight where the D got the better of the other gut, and it was a clear case of assault by means likely to cause GBI. I was up on the law at the time, and I was greatly concerned that Three Strikes was going to change and that ALL 245 cases, whether they involved a weapon or GBI or not, would become strikes. I had a somewhat reasonable DA at the time, so we looked around for something else. Something that would be innocuous enough to be a basis for felony probation, but that would not become a strike. We agreed to PC 422, the “terrorist threats” statute. It was fairly recent, coming about in 1990 or so. Not that many cases had actually been decided regarding PC 422 at the time. We settled on that. Oops.

As it turns out, PC 422 was added to the Three Strikes list in 2000, converting that glorified misdemeanor fight into a strike. This was not an uncommon event – I knew many, many attorneys who pled out 422 cases thinking nothing of it. Little did we know that PC 422 would be added to the list.

That kind of sums up the thinking of the drafters of the laws that have come down the pipe in the last few decades. “They never saw this one coming, huh?” Prisons that were built in the 1980s and 1990s to get tough on crime are now filled to overflowing, and the California legislature looks to find even more bad guys to put away. The sex offender laws have become so harsh and cruel that at least some of these lawmakers have to have faces bright red with shame at some point during the voting and amendment processes. The Jessica’s Law initiative that passed in 2006 did so with a whopping 80+% of the vote. It was kind of a referendum on sex offenders in general. The voters of California were asked: “You do hate sex offenders, don’t you? You want to kick them while they’re down, right?” The electorate joyously responded in the affirmative: “Why yes, of course we do. We’d like to kick them as much as and as often as possible.”

I get a sick sense of “I told you so,” if only briefly, when one of my various clients’ parents are talking to me, shocked that their drug addicted and/or mentally ill (or both) son is now charged with serious crimes and that he is looking at a long time in prison for whatever bad deed he did while high/drunk/mentally imbalanced/all three. “I don’t understand,” they exclaim, “why is the law so harsh? What is it you’re not doing to defend my son? This is your fault.” I have to admit that I feel a tiny bit of glee when I explain to these deluded parents that their autopilot votes and blind support of the “tough on crime” and “build more prisons” mentalities is exactly what is ensnaring their son and screwing up their grandchildren. Don’t get me wrong, I still fight for my client and I still have compassion. But it still amazes me what these supposedly loving parents are willing to do to everyone else’s children, all for the false sense of security they get from the bad people being locked away. They only seem to care when one of their own gets caught in the not-so-gentle grips of the criminal justice system.

We have become a very cruel society in United States, perhaps without really meaning to be. I personally blame our own prosperity, and the fact that people do not pay attention. So many times laws are passed not because they are the right thing to do, but because the criminal justice lobby was able to portray a particular law as “necessary” to keep “them” in prison. I also blame the willingness of the electorate to delude ourselves that simple fixes are the answer, and for coming to the realization that it is okay to treat human beings like garbage. People are not disposable razors to be discarded when they become inconvenient. We as a society should have shamed those who suggested otherwise, rather than listed to them.

The good news, I think, is that the prison crisis is bringing these problems into the open. In 2004 I was strongly behind Proposition 66, which would have ameliorated at least some of the ill effects of Three Strikes. It would not have made Three Strikes perfect, but it sure would have made it a little fairer. It was winning. But then Marc Klaas (Polly’s father) switched sides and went against it. Then Schwarzenegger came down on it. It failed by a surprisingly close margin – 53% to 47%. But it wasn’t that close. When Schwarzenegger came in to the fight support for Prop. 66 sank like a stone. Had he come in earlier, the support would have run away all the faster. Something hadn’t happened yet. Something that is finally starting to happen now.

Now I am a Democrat and I was against Schwarzenegger when he first ran against Davis, and I still am against him. I would rather have had Agelides last time around. But the screwed up criminal justice system is a truly bi-partisan disaster caused by, and ignored by, both parties. Liberal Democrats in the legislature and governor's office have been almost as bad as conservative Republicans. Republicans run on "tough on crime" while Democrats run away from Republicans running on "tough on crime, and each side one-ups the other in passing dumb and cruel criminal laws that serve only to swell the prisons and starve the rest of the budget.

I believe that when Schwarzenegger came into office he honestly thought that he could fix some of California’s worst problems. Call me naive, but I really believe that he thought he could do it. Remember that Schwarzenegger was going to fix our finances in California, and take us away from all that troubling borrowing? Well, he has thus far failed to do so, and now we are a whopping 14.5 billion dollars in the red. In the meantime, J.C. Kelso (my torts professor from McGeorge, definitely NOT a liberal) is the court-appointed trustee for the prison medical system, appointed by the federal judge overseeing the lawsuit. Kelso has been empowered and entrusted with the duty of making the badly broken prison medical system work, and he’s already made it clear that he will take money from the state to do so – around 3 billion dollars over the next year. Let me repeat that: Some guy, empowered by a federal judge, is going to take 3 billion dollars from a budget that is off already by 8 billion. Oh, and that same judge (Thelton Henderson), along with another federal judge, are poised to release about 30,000 prisoners to relieve overcrowding. These judges DO NOT WANT TO DO THIS. They have delayed, delayed, and delayed some more. But it is coming. The State is simply not fixing the prisons, the prison medical system, relieving overcrowding, or any of that stuff.

But these are only stopgaps, and in some small way are counterproductive. When the judges act this way, a lot of people will blame “federal intervention” for our problems, scapegoating “liberal judges” for making us unsafe. What we need as a people is to be confronted with our poor choices in as stark a manner as possible, preferable with as little violence as possible, but that is unlikely to be the case. The heat is up this summer in the prisons, there is vast overcrowding, the medical system is screwed up. Can anyone say riots? They are coming – give it time. I am not advocating any such thing – quite the contrary, I hope and pray that we can avoid such a catastrophe.

But we have neglected our criminal justice system for so long, or more precisely, we have continuously dehumanized it for so long that we are soon going to pay the various prices for our choices. Massive expenditures. Riots. More and more disrespect for the law. Children being treated in an increasingly punitive manner, and then being housed with adult criminals. Gang violence that crowded prisons breed. Not even the hint at rehabilitation, no drug treatment programs worth a damn. No real societal re-entry programs for prisoners. Etc., etc., etc.

There will come a time soon when we will pretty much have to junk large parts of our current criminal justice system, if only to save us from ourselves. Let us hope that time is coming soon. Rewriting California’s penal code from the ground up may be the smartest thing we will do.

Dennis Wilkins
The Guest PD Blogger

Skelly at Arbitrary and Capricious slammed me today.

2008-07-07T20:40:00.000-07:00

I'm pretty sure that I had it coming, but it was my first post and all. Check out his blog at http://skellywright.blogspot.com/. He slammed me because of my post a couple of days ago. He didn't like what I said about "old liberals," probably because he considers himself one. In fairness, I dissed him first when I slammed "old liberal attorneys." In retrospect, I think I did it unfairly. What I should have said was "retired on the job old liberal attorneys." I was commenting about the fact that my office, I am sure like others, has (and had) some old liberal attorneys who have retired on the job. You know some of these guys - they still talk about what the law used to be like and constantly bitch how you can't win anything any more. And they couldn't type at all. What the hell was that?

You know, the law in California has become so very difficult that for some of these guys it was like walking malpractice. I guess that at one time PDs didn't really need to go to training, didn't need to attend CPDA or CACJ conferences, and didn't need to constantly update their knowledge base. But that time is no longer. Every year or two some MAJOR piece of "tough on crime" legislation gets passed by the legislature, the voters, or both. Likewise, so many bad court opinions roll down the pipe that you have to stay abreast of them, lest you fail in the task of defending your client. If you don't keep up, and that is hard to do for anyone, you stand the risk of screwing your client. That goes for younger attorneys twice as much - they have to learn the ins and outs of California law quickly, and absorb stuff like a sponge. My office used to have NO training program. Now we at least have something, and they give us various updated legal materials. But, seriously, why does it seem like no one uses LEXIS? For God's sake, that tool makes our job so much easier.

That being said, it was nice to be noticed, even if it was in a negative way. Hopefully Skelly, who loves Bob Dylan (as do I, but I am sure I don't like him as much as Skelly does - I like Jakob Dylan too (AKA The Wallflowers), but he is nowhere near as intense and interesting as Bob Dylan still is), will keep reading the posts that I write and give me constructive criticism.

Hopefully someone other than myself reads this blog. I'd like to see some discussions start again.

Dennis Wilkins
The Guest PD Blogger

A DA finally gets his comeuppance. Let's hope it's a trend.

2008-07-07T20:09:00.000-07:00

Prior to contributing to this blog I wrote a number of replies to what others had said about the criminal justice system. I am a public defender who strongly believes in the adversary system of criminal justice, so long as it is tempered with reality. The PD has far less resources than the DA and the police combined, and does not have the peace officer powers those two have. One of the great equalizers in the criminal justice system is supposed to be the discovery power possessed only by the defense, via Brady v. Maryland. The defense is supposed to have little or no duty to give discovery to the DA – the DA must prove the case on his/her own without help from the defense. But if the DA, or anyone working on the prosecution team, comes across “exculpatory evidence,” then the DA must hand it over to the defense. The theory is that the DA cannot blind him/herself to evidence of innocence on the way to seeking justice. The greatest and best-used example of “Brady material” is impeachment statements by a prosecution witness (US v. Agurs) – in other words, if the DA knows a witness said something helpful to the defense, or something that contradicts in any way what he said to the police/DA (and that could be just about anything), the DA MUST disclose it to the defense. And the DA MUST seek out such information from the other “prosecuting agencies” such as the police, the coroner, etc., and give it to the defense (Kyles v. Whiley).

A second great equalizer is that the DA cannot commit “prosecutorial misconduct” against the defense. From Berger v. US (1935) 295 U.S. 78, 88: “The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor -- indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.”
Prosecutorial misconduct takes many forms, and few courts are vigorous in pointing it out, because it can mean a reversal for no other reason than the DA “cheated.” In other words, even if a defendant is probably guilty, a court will have to reverse the conviction unless they can say that the misconduct did not infect the trial “beyond a reasonable doubt.” The phrase is, was the error “harmless beyond a reasonable doubt?” This is known as a harmless error, from California v. Chapman.

The efforts that courts go through to shield prosecutors from misconduct are enormous, and the biggest one is harmless error. But another one is procedural default. Let’s say the DA makes an improper argument in front of the jury. He slips out that your defendant has convictions, or rephrases testimony in a very different way than it was presented at trial to your client’s detriment, or he appeals to the bible, or asks the jury to ignore the facts and “send them a message,” or whatever. Prosecutorial misconduct can take many, many forms. If the defense attorney does not immediately object, AND label the statements as “prosecutorial misconduct,” and nothing short of this will do, then the issue is essentially waived, unless on appeal the appellate attorney can show that you were guilty of “ineffective assistance of counsel.” In other words, UNLESS you speak the right mantra of words ("objection, prosecutorial misconduct," all while stating the precise nature of the misconduct and where it occurred) then you have waived the objection for your client unless someone else comes along and shows that you were such an awful attorney that NO ONE would have failed to object. If this is during the DA’s closing, you just have to try to approach on a sidebar with a hostile judge and argue “misconduct,” often with a judge who doesn't want to interrupt the DA during closing. It’s hard to do, I know.

In the one appellate decision I have on this (I was trial counsel), the DA argued in his closing “I'll tell you after this is all over and I will stop and talk with you. I'll tell you about that.” I objected to misconduct, the judge overruled the objection, and he said it again, and again my objection was overruled. I had to state, in front of the jury, that I thought that the prosecutor was committing "prosecutorial misconduct" in a difficult case, and the judge overruled me without blinking, and without explanation. Do you think my credibility suffered in front of the jury? I think so.

The DA's comments were obvious misconduct because the DA was essentially telling the jury that, hey, there’s more stuff you haven’t heard – talk to me after the trial and I’ll tell you about it. Read the unpublished decision at PEOPLE v. WILLIAMS, 2005 Cal. App. Unpub. LEXIS 8399 [You'll have to get it from LEXIS or Westlaw - it is an unpublished decision from 2005 and I have no idea how to get it free]. The evidence of guilt for Mr. Williams was strong on two of the three charges, but on the robbery (the one I was trying to beat) it wasn’t overwhelming. An honest court of appeals would have reversed the case because of the obvious misconduct – imagine how improper it is for a DA to say to a jury that he would “talk to them afterwards,” especially in the context of reasonable doubt. But the appellate court did not reverse, instead criticizing me for raising the issue in my closing. I bring this up to show that have been screwed by an appellate court like just about any seasoned PD, and to show what lengths courts will go to to protect DAs from their own perfidy.

The truth is that DAs almost never get sanctioned for prosecutorial misconduct. The California Bar is even more loathe to sanction DAs for such conduct, even when a conviction is reversed by an appellate court for misconduct. They just don't do it. Ask any California defense attorney when was the last time they ever heard of a prosecutor being sanctioned by the Bar for prosecutorial misconduct or withholding evidence in California. Answer: They have never heard of such a thing. Appellate Courts routinely refuse to state the name of an offending prosecutor, even when they reverse a conviction in a published decision. And the Bar routinely does nothing to such prosecutors, not even admonishing them for flagrant abuses. But when a civil plaintiff’s attorney does not call his clients back and/or commingles his client trust fund, even honestly, they are all over THAT guy. Likewise for a criminal defense attorney who does not investigate his client’s case. Don’t get me wrong – I am not in favor of whitewashing any malfeasance or misfeasance, and there should always be the threat of sanctions when an attorney screws up or loses his/her way.

The California State Bar may be starting a new trend.

In the July California Bar Journal there is a powerful article titled: “Misconduct charges for 3 prosecutors.” One of the three essentially committed crimes and lied to the cops, which is nothing new. But the other two are very shocking indeed. The first, Benjamin Field, is a Santa Clara Deputy District Attorney, State Bar # 168197 (I just checked the Bar’s website and it confirms that Benjamin Field’s address is still with the Santa Clara DA, presumably still employed there) is currently in trial for prosecutorial misconduct. His abuses are really flagrant, and at least one court opinion reversed a conviction for what he did, openly criticizing his methods. Judges have rebuked him for withholding evidence, etc. His trial started in May but had to be continued because an appellate court reversed ANOTHER conviction he obtained for, you guessed it, prosecutorial misconduct. The appellate court found that Field had made “deceptive and reprehensible” comments to a jury that violated a court order. One of the convictions Field obtained that was reversed was of a sex crime committed by Damon Auguste. Auguste was convicted by Field and sent away for 8 years and 8 months. But after the exculpatory evidence that Field didn’t hand over was obtained by the defense, the 8 year 8 month sentence eventually became a misdemeanor!!

The funniest part of the Field Bar proceeding is the following paragraph from Bar Journal: “Field, who several years ago expressed interest in either an appointment to the bench or a run for the top spot in his office, has attracted support from colleagues and friends, many of whom have attended the trial. Kevin Smith, president of the Santa Clara County Government Attorney’s Association, said ‘the biggest shock to all of us has been the notion that there’s no statute of limitations’ on when the bar can charge lawyer misconduct. ‘The system that we work in in criminal justice has standards and rules that apply to every defendant . . . We wouldn’t get away with prosecuting someone for something they did two years ago.’” What a riot!! Field has apparently built a career ignoring Brady and rules of exculpatory evidence, apparently deciding that those “liberal laws and judges” should be ignored when he sees fit, and now his friends (as presumably he is as well) are shocked when he doesn’t the protections of Due Process and fairness under the law. Gee, I wonder if he had become a judge he would have been really fair to those he would sit in judgment over? My personal opinion: I don’t think he would have been much different from many of the “tough on crime” “law and order” judges we have today.

I hope that this trend continues, and I hope that Mr. Field, Esq., is convicted by our State Bar and disbarred, as he ought to be. At the very least he should be suspended from the practice of law for a long, long time. Maybe then he will re-apply, and become a defense attorney. Hopefully with a changed perspective.

Dennis Wilkins
The Guest PD Blogger

What is going on here?

2008-07-06T09:29:00.000-07:00

Thank you for the introduction, PDDude. I have always been a fan of this site. I could criticize you for not posting more, but I know what it is like to be working as a public defender. For those who don't, let me tell you a little bit about what it is like to be a PD.

First, to be a PD you have to kind of fall into it. The vast majority of PDs that I know in this day and age in California were not necessarily raised as "liberals" who like helping the "underprivileged," code in my book for minorities. That is something that happened in the sixties and the seventies. Some of those PDs are still around, even in my office. But not many.

No, where I am from the majority of PDs fell into criminal defense because they wanted a job and the PD hired. We have a number of people who wanted to work for the DA but couldn't get hired. We have a number who were civil and got tired of it and came to the PD. As I said, most just sort of fall into it.

The legal life of a PD, at least in San Bernardino, is a hard one. The judges hate the vast majority of us, primarily because we defend those the judges hate. Also, the vast majority of judges are former prosecutors. Thus, the judges here don't like criminal defendants, and don't like us. PDs generally work hard and get little respect from the judges. My personal opinion of most of the judges in SB (but not all - there are, in fact, some very good judges in SB, but damned few) is that they are examples of some of the least qualified individuals to take on the awesome responsibility of, you know, judging. Many lack the political will to do what is right, the temperament to be fair and just, and the legal knowledge to be effective judges. But it isn't all their fault - the SB electorate is VERY conservative, and in some ways the judges reflect the axiom: "you get exactly the type of politician you vote for." My county votes for 'tough on crime,' and that is exactly what most of the judges deliver: 'tough on crime.' Never mind the costs to society, or the cost to the reputation of the county, or the complete ineffectiveness of 'tough on crime,' that's what the voters want, that's what they get.

The DAs generally don't like us either. In my county we have a weird twist - DAs and PDs are in the same union (which is excellent for all involved), so there is some collaboration. And some of the DAs get along with some of the PDs. But for the most part, the mindset of most of the DAs are very different from the mindset of most of the PDs, and there is the contention. It is odd, but it seems that most DAs have live sheltered lives and grew up in upper middle class to wealthy homes, while many PDs came from less-fortunate circumstances. At the very least, most PDs have at least one big incident in their lives when society failed them when they most needed it, and they are disillusioned in those ion charge.

This gives a mindset that is, at times, shocking. Most DAs tend to view defendants as something less than human. Not all DAs of course - I have seen some DAs with a lot of compassion, but they are very few. But most DAs look at defendants and think something like: "this defendant is an animal, I would never do what he did, and I have to keep him away from society as long as possible." I can't read the minds of DAs, of course, but that is what their general actions tell me. "This guy is a thief (or whatever) and he must be punished. We do this to all thieves." A PD, at least a compassionate one, will generally ask: "Why did this guy steal (or whatever)? Would I do that in the same situation?" In fact, a good PD will think this way to help find a defense. But not the DA, at least not in SB.

Look, I have family matters to attend to. I want to get mys first post out and allow others to comment, criticize, and whatnot. I think that PDDude got himself into a rut in the first place because he tries very hard to make each blog post into perfection. I want to get some thoughts down now so that I can introduce myself, and hit a little bit at a time so that SOMETHING gets said. The position of PD, and what it means in our evolving democracy and our legal community are too important to be met with silence.

Dennis Wilkins
The Guest PD Blogger

Has it really been 6 Months?

2008-07-03T21:17:00.000-07:00

I have no idea why I don't post for long periods of time, like I have here. It's not that I don't have things to talk about - no one has accused me of being short of things to talk about. I certainly am busy, but not too busy to write about what I'm thinking (it doesn't take that long). I just seem to go through these periods where the desire leaves me. Maybe I've been really in to doing other things of late that have sucked away at my desire to write, if not my abilities.

However, I really do enjoy the discussions that come from posting, I like the positive feedback I get from readers, I even enjoy the occasional contrarian positions by the random DA who posts. I welcome the discussion, and I have hoped at times to spur discussions that go on in the Courthouses around California (or more specifically, I like it when I have heard someone mention this blog, which has happened a few times, and I have to feign ignorance).

One of my regular commenters here is Dennis Wilkins, who is a PD in San Bernardino County (a very conservative county, and a difficult one for PDs to work in). I've gotten to know him over the last year a little bit, and have read his stuff on the blog for years, and I really like his stuff. I'm not saying I'm going to agree with everything he says at any time, but I think in general he would be a good contributor to this blog.

He offered to guest post on here, and I figured "what the hell, nothing else has been going on here, and I like his stuff," so I said yes.

Dennis will begin posting soon. He has a great view on 3 Strikes (you won't be surprised about his position and conclusions when you read it), with some interesting anecdotes, and some different perspectives. I believe that there will be an initiative on the November ballot relating to softening three strikes a little bit, so his article will be quite relevant.

Anyways, keep writing, keep commenting, and hopefully I'll keep this more active in the future. If you want to slip me any gossip from your Courthouses (in California only, preferably Southern Cal), I'm happy to listen to it. Maybe it will even make it into the blog if it's explosive enough.

Hey, I won a Rodney!!!

2008-01-03T09:47:00.000-08:00

I just found out from Skelly over at Arbitrary & Capricious that I won a Rodney (talk about a lack of respect, I didn't even know I was nominated!). Hey, I'm psyched. I mean, just because I'm a Public Defender doesn't mean I don't like getting recognized for doing a good job.

Check out the PD Stuff website, it's worth a look.

Thanks for the tip Skelly!

NY Times Editorial Says It All

2008-01-01T19:17:00.000-08:00

Regulars here know that I've written about our country's shameful human rights record over the last 7 years, as we've raced to the bottom in areas such as torture, privacy, indefinite detentions for people without meaningful rights to be heard, and things of the like. The NY Times has written an editorial that says it all, though, and notes, quite presciently, that our country is quickly becoming unrecognizable.

The reality is, we have not been the leader in support of human rights for the last decade only because it gives us some tactical or propaganda advantage against our enemies, we have done it because we felt that it distinguished us from our enemies. The reason was this was how you could tell good countries from bad - not just by the fact that they lined up on one side of the fence or another, but because of the quality of their character.

Quoth the Times:

Out of panic and ideology, President Bush squandered America’s position of
moral and political leadership, swept aside international institutions and
treaties, sullied America’s global image, and trampled on the constitutional
pillars that have supported our democracy through the most terrifying and
challenging times. These policies have fed the world’s anger and alienation and
have not made any of us safer.

As I've noted before, every dictator, every totalitarian, every petty despot, has claimed some national exigency that necessitates the use of extraordinary techniques - just this once - to deal with a vicious enemy. I don't even need to get Nazi with everyone, I can be far more recent and relevant - look at Mobutu in Zimbabwe, or Putin in Russia, or Hussein in Iraq, or any other despot. They all say the same thing, that these are trying times, and we need to take these extreme measures in the interest of national security.

And, for 60 years, since the end of World War II, the west, primarily pushed by the US, has said "No. Extreme times do not allow for measures that are, by all measures, simply wrong, in all instances." That was Nuremburg, that was the Geneva Accords, that was The Helsinki Accords, that was Ronald Reagan standing at the Berlin Wall and saying "Mr. Gorbachev, tear down this wall."

And now, we have small minds and evil people (small being yes-men like Alberto Gonzalez, evil being Cheney and the cabal that surrounded him) saying that these things were fine for everyone else's problems, but now that we have problems, they can't apply to us.

Wrong.

The Times tells us where we have gone, in chillingly clear detail:

In the years since 9/11, we have seen American soldiers abuse, sexually
humiliate, torment and murder prisoners in Afghanistan and Iraq. A few have been
punished, but their leaders have never been called to account. We have seen
mercenaries gun down Iraqi civilians with no fear of prosecution. We have seen
the president, sworn to defend the Constitution, turn his powers on his own
citizens, authorizing the intelligence agencies to spy on Americans, wiretapping
phones and intercepting international e-mail messages without a warrant.
We have read accounts of how the government’s top lawyers huddled in secret after
the attacks in New York and Washington and plotted ways to circumvent the Geneva Conventions — and both American and international law — to hold anyone the president chose indefinitely without charges or judicial review.
Those same lawyers then twisted other laws beyond recognition to allow Mr. Bush to turn intelligence agents into torturers, to force doctors to abdicate their
professional oaths and responsibilities to prepare prisoners for abuse, and then
to monitor the torment to make sure it didn’t go just a bit too far and actually
kill them.

In short, our country, which moved the world forward on the cause of freedom and human rights for 60 years by leading by example, has set the world back by backsliding on it. And realize this, the goal of Al Qaeda was not to win a war, it was not to kill every American. They know they are not able to do that. Their goal was to ruin our way of life by making us so overreact to them that we would no longer be the people that we once were.

They have certainly succeeded there.

LA Area DA seeks to elevate DAs, denigrate defense lawyers - by initiative

2007-12-20T00:01:00.000-08:00

This is via the Los Angeles Metropolitan News (a legal newspaper), the head of the LA District Attorney's Association, Steve Ipsen, has proposed one of the most pernicious, insidious and unconstitutional state initiatives that I can ever remember seeing. Evidently, Ipsen wants to prohibit a whole class of people from donating money to the campaigns of elected district and city attorneys. Think about that, a whole class of elected official cannot raise money from a whole class of individuals: lawyers who have even one criminal case in that jurisdiction.

You want to talk about an unconstitutional, and truly disgusting idea, this is it. The theory Ipsen would say is that defense lawyers will donate money to the candidate who would advance their agenda the most, to the detriment of the rest of society.

Well, let's think of this. This would assume that the only intention and desire that criminal defense lawyers have is the unprincipled desire to get less time for their clients as a class of people. In other words, that we are in favor of crime and criminals, rather than a just adjudication of the laws on the books, or a recalibrating of the laws in a manner that is more fair to all types of people. How about this - perhaps many people who go into defense work do so because they want to ensure that all accused get a fair shot, that they are not taken advantage of by the system. They want to make sure that all people get a fair shot, so as to ensure that innocent people do not regularly get victimized by the system. You see, what Ipsen really wants is to limit money coming from political positions that he personally disagrees with. He has faith in a police state that gives all power to police and prosecutors without any check on their authority.

Sure, he will couch his position in the idea that this only applies to defense lawyers who have the potential of actual bias - cases in this actual jurisdiction. But think about it - those are the people most interested in and knowledgeable that race. Why would a defense lawyer in Sonoma County care about the race for DA in Los Angeles, or vice versa? If a lawyer in Los Angeles believes strongly enough that the administration of justice in his county is proceeding in an unfair manner, he will donate money accordingly. And this is what you would expect from locals who regularly practice in that area. It's no surprise that every year around election time my friends and family ask me who they should support for Judicial elections -I work in the field, I am far more knowledgeable than they are, so they want to know my views. Ipsen wants to effectively silence that voice so that only his voice, or those aligned with him, can be heard. To call these views anti-democratic understates how extreme he is.

Ipsen appears to recognize the rank idiocy of his position, because he puts a fall-back position in his initiative - that if the prohibition is found unconstitutional (duh!), then any candidate that accepts money from defense lawyers must make a statement stating so in all public advertising by noting the candidate is “supported and funded by criminal defense attorneys and/or criminal defendants.” Those are the words from the actual initiative! As if there is no difference between criminal defense lawyers and criminal defendants (as there is no distinction in the wording). This lays bare Ipsen's view of the role of a defense lawyer in society - a criminal.

And what does that really mean? It is quite clear what it means. To Ipsen, someone who represents a defendant is morally and legally equivalent to the person he represents. Hundreds of years of legal tradition in western civilization, the basis of all of our laws and system of justice - down the drain according to Ipsen. If you represent someone accused of a crime (rightly or wrongly, it would seem), then you are as despicable as - not the person - but the act they are accused of committing. After all, there is no distinction between the person and the crime they are charged with, because to assert they did not do it, or that they aren't guilty of the actual charges is a meaningless and fruitless activity which equates you morally with the perpetrator, who, incidentally, must be guilty.

Here's a question Ipsen. If the fair administration of justice is so important here, how about preventing ANYONE from giving money to a race in which they have an interest. This, of course, would mean that prison guards, police, sheriffs, DAs, any anti-crime group, any victim's rights group, etc, couldn't give to any race involving not just a prosecutor, but governor as well, as they have just as much influence in the system of justice in which these parties are so intricately involved. Now we're talking. Don't go waiting too long for an answer to this. Unprincipled people like Ipsen will never countenance arguments that they are inconsistent in their views.

Of course, if you read more deeply, you see even more gems here. Of course, Ipsen has to name this initiative after some victim, because without that, it may actually be discussed on it's merits rather than on the emotional plane of "what, you want to re victimize this family, you evil twit?" And why, in this otherwise totalitarian anti-democratic power grab does Ipsen throw in this little tidbit - DAs must get more money and benefits. He wants to ensure that DAs get the same pay, benefits and retirement equivalent to that of law enforcement officers - which is extremely generous. He also seeks to separate the pay and benefits of DAs from Public Defenders, and ensure that only DAs get these new, generous benefits. I've blogged about this before, but I'll say it again: You want to see who faces danger in their work, don't look at DAs, look at PDs. We are the ones who face the daily slings and arrows of our client's lashing out at the system - we are the bearers of bad tidings, we have to sit next to them as their frustration boils over, and we are the ones they eventually hit, slash, or otherwise attack.

So, when you see this further "tough on crime" initiative hit the ballots (if it ever does hit it), remember what an evil anti-democratic force is behind it, and act accordingly. The only thing we can be thankful for is that Ipsen has decided not to run for DA in Los Angeles, because a person with his views running that place would be disastrous for 10 million people unfortunate enough to live in LA County and bearing the results of him going from crazed outsider throwing grenades at the system to actually running the place, and that would be really scary.

Why are ex-Public Defenders so often bad judges

2007-12-15T02:08:00.000-08:00

I always get excited when someone from my office makes it to the bench (someone good, that is - if the person's a total political tool, then it's not so exciting). It means that finally, someone with our perspective is sitting on the bench. So, I have to ask myself all of the time this question: Why do ex-PDs make such uniformly bad judges. I mean, there are good judges who were PDs (or private lawyers, for that matter), but so many of the best judges I know were either District Attorneys or worked in the federal system. And I don't know why.

I've heard the theories. One theory is that as a Public Defender, we've heard all of the bullshit that our clients put out and we no longer buy it. But, that would mean that only the most cynical Public Defenders make it to the bench (something that doesn't seem impossible, in light of the political process it takes to make it to the bench). But, it would seem that I would have noticed the cynicism of some of these people before they made it to the bench. Most of the time, I haven't seen it.

Another theory is that only the most politically adept PDs make it to the bench, so that when they get there they have thoroughly sold their soul to make it there, and they can't do what their conscience asks them to do when they hit that spot for fear of a backlash by the people that put them there. I guess that this is possible, but, again, I never noticed this personality trait in so many of the people that I knew beforehand who make it to the bench and completely disappoint when they hit that spot.

Another, along the same vein, is that as ex-PDs they are under a greater microscope looking for perceived pro-defense bias (something that will really get you bounced from the bench, in contrast to overt pro-prosecution bias, which will get you a sweet gig within the judging ranks, unless you go completely overboard and totally piss off every PD in the county, something that's hard to do). This holds more water, and sort of goes in line with the previous thought. By promising this independence from their prior profession to everyone under the sun, they at least feel as if they are being closely scrutinized for possible bias, and want to cover it up.

But, all of these theories work for perhaps some of my colleagues who've made it onto the bench. Do they explain all of them? Is there another reason I'm not considering? In general, I feel defense lawyers are better lawyers than most prosecutors (note the MOST, there are some prosecutors who are stellar lawyers, but the mean PD is better than the mean DA, as far as I've seen). They have spent their lives bucking the system, not playing along to get along, not following strict hierarchical rules that DAs have to follow, thinking independently. Why is it that once these people hit the bench, they do so much worse than these DAs who usually can't hold a candle to them as lawyers?

And with that post, I completely give up the chance to ever become a judge (unless people realize that maybe I'll be just as "bad" as all of those other ex-PDs that have been put on the bench, and they'll put me on as well).

Thoughts, anyone?

Remembering why I do this work

2007-11-21T23:26:00.000-08:00

Alright, it's been a long time since I've posted. To those online and offline friends who've told me "what's going on?" I can only say, thank you for encouraging me. Work has been very busy of late, and management at our office has really become unhinged in a bad way (it's all relative, I guess. I hear enough horror stories that really makes my management pale in comparison). The net result has been that I've been offline too long. Perhaps it's drained all inspiration out of me.

That being said, there are times that things happen that have a cathartic effect on me and makes me realize why I do this, and a video on You Tube has provided that for me.

People have accused me of being obsessed with black/white issues, or rich/poor issues, or things of the like. In reality, I am obsessed with powerful/weak issues. Those who have power, and abuse it, against those who are weak and cannot fight back.

In this video, a Utah Highway Patrolman pulls a guy over for speeding. The guy evidently disagrees, and makes it clear. What is clear from the start is that the officer isn't accepting any disagreement, and goes back to write a ticket. When he returns, the person refuses to sign it. Here's where it gets really bad, and where the cop totally loses it. The person being pulled over probably had no clue that in signing the ticket, he's just agreeing to show up in court, and not admitting to any guilt (his lack of understanding of the system should've been a tip-off to the cop at this point). At this point the cop could've calmly explained "look, I know you disagree with me, but signing this ticket is just a promise to appear in court. You can explain to the judge why I'm wrong, and we can have it decided in court rather than out here, since we obviously disagree. I just have to make sure you're willing to come to court on your own, which this signature affirms. If you don't, I have to take you in cuffs to have you post bail personally. You have your pregnant wife and infant here, and I know you don't want that, so sign the stupid ticket, come to court, and we can argue about it there."

That, of course, would be the reasonable thing to do so as to explain to someone who appears otherwise law-abiding what the system is actually doing here. Instead, the cop orders him out of the car and immediately decides to arrest him, without telling him what he's arrested for. Obviously, the guy is pretty surprised by this and doesn't jump to it with his hands behind his back, and after 6 seconds (which was actually timed in one news report of the event), has his taser out and is threatening to shoot - which he does a second later or so. The victim (I love calling the arrested person that, but he clearly is one) never endangers the officer, never threatens him, and never does anything offensive other than request a sober statement of what happens.

Here's what fascinates me. The officer otherwise seems like a nice guy. He talks with the wife afterwards in a very polite manner, as if he has concern for her (this after just tasing her husband, leaving her hysterical, and threatening her as well, all for nothing). He clearly will never be disciplined for this, he tells his supervisor who comes on scene what happens (only slightly lying in his rendition), and has evidently never been disciplined in the past. In other words, this was standard operating procedure.

And yet, watching it, I felt the pangs of uncontrollable rage in me. I felt the same as I felt watching videos of 60's protesters in the south being set upon with dogs, or sprayed with high powered hoses, or watching protesters in Russia get clubbed, or with any other place where injustice plays itself out in such a blatant fashion and where society at large yawns or (worse) applauds loudly.

I am so honored to be one of those people who stands up for these powerless people. I'm not saying that every client of mine is in this guy's position - of course not, that is absurd. But the chips are stacked so dramatically against the people that I represent, and when something like this happens, there is no one otherwise there to stand up for a victim of police abuse like this and say "enough!" The problem is, society has become so inured to the notion of "lock 'em up and throw away the key" that they are now willing to lock up anyone and everyone, and society at large applauds. Honest, good people get abused now because it has become acceptable. After decades of shitting on poor minorities, the attitude has spread and the practice has followed closely behind it. Anyone can be nailed now, legal protections have become so pro-forma so as to not exist anymore. Perpetrators of these actions are protected far more than the public at large is. Police officers are seen as victims if their actions are called into question and they are investigated for their misdeeds.

The only people out there fighting against this all the time - not just in the case of the highly sympathetic white victim in Utah with a pregnant wife and infant in the car where the case is caught on video - are public defenders and other lawyers like us.

It takes watching a video like this, and feeling once again the frustration in me while watching it, that reminds me why I'm so proud to do this work.

And with that, I'm back.

Spector Jury Hangs

2007-09-29T21:55:00.000-07:00

I know I'm late on this one, but it certainly deserves a comment. The Phil Spector jury has hung, which wasn't looking like a huge surprise as the jury's questions became more and more pointed. A few thoughts.

First of all, I certainly can understand why Judge Fidler didn't want a hung jury. This case lasted months, it was very costly, and consumed quite a bit of the Court's resources. That being said, the lengths he began going to to try and get a verdict went a little overboard. The notion of giving the jury a lesser of involuntary manslaughter during deliberations defied imagination - of course, he ended up not doing it, but the amount of press that it got clearly swayed some jurors into realizing that the judge wanted them to reach a verdict of guilty as to something.

From what I understand about the jury instruction the judge gave to the jury, and then withdrew, it appeared as if it was not a correct statement of the law. It may have been a correct statement of the law according to the prosecution's theory of the case vs. the defense's theory of the case. The prosecution's clear theory was that Spector shot Clarkson after putting the gun in her mouth - if it went off accidentally or on purpose it didn't matter, since putting it there was "implied malice," and therefore an act so dangerous to human life that the mere act of doing implies the person is acting with malice (as opposed to the gross negligence or recklessness that is required for involuntary manslaughter). The defense theory was that whoever put the gun into her mouth, Spector didn't pull the trigger, and hence, couldn't be held liable for murder. The problem is, in the abstract, one could be liable under implied malice for murder by putting a gun in someone's mouth even if you don't eventually pull the trigger. Such a scenario was never explored in this case, but giving a jury instruction that he must be not guilty if he didn't pull the trigger is an incorrect statement of the law. How a change in that instruction could've made the difference is beyond me, though. I can't imagine that there were guilty jurors out there who believe that she pulled the trigger.

The retrial is going to be as long and tedious as the first one. It's going to be a slog, and it's going to happen. There is no chance that the prosecution is going to offer Spector anything that he will take - it's too politically unpalatable. District Attorney Steve Cooley will look like a fool in public if he gives Spector anything in the single digits, and Spector, at nearly 70 years old, is not going to plead to double digit time. I just can't see this case settling, especially not with a 10-2 for guilty split. If this was one of my cases, we would settle it for about 12 years or so. That's not going to happen in this case.

Spector will probably get new lawyers. From their perspective, they've just done a great job. They hung the case, they got on TV every day, it is a boon to their career. There's almost no uphill from here, unless they win it next time (not too likely to happen, in light of the split and juror comments in this case). Reality speaking - they're gone.

For the rest of us defense lawyers, I think this is a bad thing. This perpetuates the misconception that prosecutors can't win a fair fight, and that laws need to be changed to deal with it. I'm sure that this will fuel another round of pushing for non-unanimous jurors (the "Phil Spector law?"), and also to keep cases off TV. But, more than anything, it makes future jurors think that every defense lawyer has some trick up his sleave to try and get his obviously guilty client off, and that they should not be trusted. The net result of that means that, sure as day turns into night, there will be more innocent people getting convicted by more overly skeptical jurys. And that's a bad thing, especially for us public defenders who represent the most downtrodden in society. But, I survived OJ, I'll survive this.

Larry Craig and Police Officer Opinion Testimony

2007-09-04T18:12:00.001-07:00

One of the areas that has held public fascination in the Larry Craig situation is the vagueness of the charges and allegations against him. Put simply - what did he actually do wrong - tapping a foot and reaching with his hand? He clearly did not break any established and obvious laws by those actions (not unless laws have become so over broad and burdensome that they've even caught me, Public Defender Dude, by surprise). So what he did had to be interpreted by a police officer as being illegal, because it is not illegal on its face.

This brings up an area that I've so often railed against - police officer opinion testimony (or, as I like to put it, "my opinion is that you're guilty."). I think that this opinion testimony, whether in the context of gangs (giving an opinion that any sundry crime was committed for the benefit of a street gang so as to make minor crimes strikes, or average crimes life sentences), or drugs (giving the opinion that whatever amount of drugs that someone possessed was obviously possessed for purposes of sale), or any other area.

Prosecutors love this stuff. It's like 2 closing arguments in their case. They get a police officer who gets to get up on the stand and essentially say "I've investigated thousands of cases, and in my opinion this person is guilty, because his case falls in with all these other ones in this manner." It is highly prejudicial, and in many cases, highly meaningless. Let's face it, any old person in the world could figure out whether a certain crime benefits a gang without having to hear a police officer point his finger at your client and say "he definitely did it for the gang." How about general testimony about how a gang may benefit, or something to that effect?

And the Larry Craig case is just like that. The police officer sees something, and interprets it one way. Larry Craig interprets it the other way. It is so difficult to get a jury to realize that a police officer sees the world in a certain manner, and everything they see falls into line in that manner. When you go out looking for gay people, suddenly everyone is gay and hitting on you. Even the most subtle actions can be taken as hitting on you.

The only way that Larry Craig could have ever been convicted in this case would have been if the officer had gotten on the stand and said "I've investigated thousands of these cases, and what Larry Craig did was hit on me and attempt to have sex with me." How do you refute that? It's very difficult.

That being said, going against that kind of testimony can be very fun, as well. You get to pose hypotheticals to the police, who have to sometimes take ridiculous positions to continue to assert your client is guilty.

I had one gang case where the gang officer's testimony won the case for me. Through cross examination, I was able to put forward a whole different scenario about how the crime took place, and ask if that would be consistent with guilt or innocence, and the officer had to concede that looking at the case in that manner it made my client not guilty (of the whole crime, not just of the gang allegation).

So, I hate these types of cases, and this testimony, but a good lawyer learns how to turn it in their favor, or at least neutralize it as much as possible.

Good luck Larry (and I mean that - they're nothing wrong with being gay!).

The Lewd Conduct of Senator Larry Craig

2007-08-28T10:36:00.000-07:00

It takes a juicy arrest like this of a prominent gay bashing Republican to drag me out of my torpor and get me posting again. The arrest and conviction of US Senator Larry Craig, a Republican from conservative South Dakota (didn't they just pass a law criminalizing all abortions?) is one of those crystallizing moments that happens with increasing frequency in society - usually the moments are crystallized by Republicans, because they have gained much of their political power by riding moral crusades and against crime. Of course, I love these cases because what they do is force normally "tough on crime" Republicans, those who have held as a general philosophy "lock 'em up, let God sort them out" to confront real issues of guilt and innocence, the fairness of the system, harshness of punishment, and whether they really live up the codes of morality they seek to impose on others.

The Scooter Libby case was a perfect example of Republicans being forced to admit that a punishment did not fit the crime. In that case, it was perjury and obstruction of justice receiving lengthy prison sentences (they seem to have gotten beyond that whole thing - they just thought this one, solitary prison sentence was too much - if given to minorities, poor people or Democrats, then it would've been too lenient). The fact remained, though, that defense lawyers are now able to present the President's statement about the harshness of prison for a first time offender like Libby in their own cases.

The Larry Craig case brings up a few issues near and dear to my heart. I'll talk about one of them today, and follow up with the others in the next couple of days.

The issues that I see are as follows: 1) absurdly defined crimes that result in criminal convictions for behavior that cannot otherwise be defined as criminal, 2) people pleading guilty to things they didn't do so as to avoid the spectacle or trouble or risk of going to trial, and 3) absolutely ridiculous "opinion" testimony of police officers which generally amounts to "my opinion as a police officer is that he's guilty, so the jury should find him guilty."

Regarding people pleading guilty to things that they may not have done, Larry Craig is a perfect example. He obviously wanted to plead so as to avoid a spectacle in which he would've been held up to major ridicule. The cost of trial such as this would've been enormous for him, and by all signs of the police report I've seen, there's a very good chance that he could've beat the charge (I have to admit, I haven't read the statute, but I'm guessing it's somewhat similar to California's lewd conduct law in Penal Code Section 647(a), of which I did a couple of trials ages ago when I did misdemeanors).

Craig indicates that he was innocent, but pled to take care of it. The fact is that he was given a great sweetheart deal, which is usually given in cases like this, which encourage people to plead to things they may not have done. I don't have an easy solution for this, of course. It sounds easy to ridicule, but I realize that we don't want people getting very harsh punishments small charges that are first offenses just because we want to encourage them to go to trial and assert their rights. On the other hand, criminalizing such minor behavior such as this, and insisting on pushing it to a filing, really stretches what is necessary. I don't know, maybe there really is an epidemic of all of these solicitations taking place in the bathroom in this airport, but I have to think that with conduct like that alleged by Craig, they could use their discretion and not file on it.

The cases that I saw so frequently usually had someone making an unambiguous action indicating intent - usually masturbation and asking the person to do something, not just brushing of a hand or foot. I have to think they could've waited for a little more unambiguous action on Craig's part before arresting him and filing the case (these points obviously bleed over to my other points on the subject).

Back to pleading, though, Craig makes it clear that people actually do take deals when they are not guilty, and, as Craig said, without the assistance of a lawyer (which he said he wished he had taken, but obviously wanted to get it over as quickly and quietly as possible that he didn't avail himself of this option). Other people don't have lawyers for other reasons, though. Some jurisdictions have crappy PDs or appointed lawyers. Some courts encourage people to plead without lawyers, making them wait a long time if they want a lawyer, and getting them out more quickly if they say they'll waive their right to a lawyer. Other courts even suggest that the offer could go up if people insist on a lawyer (believe me, they always manage to say this in a cagey manner that doesn't say it directly, but gives the person in the position of hearing the statement come away with that unmistakable impression).

So, when Craig said that he pled to something that he didn't do, this is an area where tough on crime Republicans would normally scoff and say "yeah, right." But, as Craig shows us, this does happen, and people do have reasons to plead to things that they didn't' do. So, the next time you hear someone say "I took a deal, but I didn't do it," remember that he may actually be telling the truth. Don't accept that guilty plea as the gospel truth.

Update

Boy, did I blow it with calling Craig a senator from South Dakota. As Skelly correctly pointed out, he is from Idaho. I could blame it on some factor that deflects blame from me, but I'll stand up and take this blame.

Also, TPM has more, including the actual tape of the conversation between Craig and the officer who arrested him, as well as his plea agreement and swearing that he has no claim as to innocence.

It certainly makes it look as if he would have a more difficult time withdrawing is plea.

Thank you Skelly for the correction and update.

It's About Time - A Fair Legal Talk Show Host

2007-07-25T00:37:00.000-07:00

Finally, an antidote to the facists out there like Nancy Grace. You should check out Jami Floyd and her show "Best Defense" on Court TV. She's apparently an ex-Public Defender from the Bay Area (although that appears to be a very small sliver of her bio - she still has it in her bones), but not afraid to say that someone's guilty. She's empathetic to the defense, what they have to go through in presenting their case and fighting the obstacles that get in the way of an effective defense, and she's entertaining.

Check out her webpage on Court TV's website, and check out her show sometime on Court TV. It's apparenlty on different times in different places (and I'm always at work then regardless), but she even has a segment on the show called "The Exonerated," about people who have been convicted, sentenced, served a large amount of time, and later exonerated. Nancy Grace would probably call that section "The Released Murderers," or "The Technicalities" (innocence being a mere technicality to her). Definitely worth a look for those looking for both sides of the story to be told.

Disclaimer - She linked to me while ago, I figured it was only fair to check her out and see what she's about, and talk about her if she and her show were worthy - they certainly are.

Client Blunders

2007-07-16T09:34:00.000-07:00

I've been getting hit lately with huge blunders by my clients - that is, blunders my clients make as my clients, not blunders they make that turn them in to my clients. I guess that I'm not down about it, even though it is resulting in much longer sentences for them, which occur on my watch. I hadn't had a client get a life sentence in a long time, and I had only a few of them (less than ten) in my career, somehow I had been lucky and managed to avoid too many.

Then I did a trial a little while ago where the defendants (three of them) were offered 17 years for an attempted murder of 5 people in a shooting. Their maximum exposure was about 5 life sentences and 120 years (meaning, first you do the 120 years - 85% of it, then you do 5 life sentences (minimum time of 7 years each, then you're eligible for parole. Hint for the math impaired - they would never be getting out).

At first, none of the defendants wanted the deal. It was a package deal, meaning all take it or none take it. The DA's perspective is that they were offering the deal to avoid trial, and if one of them wants to go to trial, then they weren't getting their end of the bargain. Since the case was an attempted, premeditated murder, then the judge had no discretion to give them that deal in the absence of the DA's consent.

As we got set to start trial, the other two defendants decided they wanted the deal, but my client didn't. So, they were forced to go through trial. Honestly, my client's case was much better than the co-def's case, but my client was closely associated with the co-defs, and he was arrested at the location, and he was identified as being with them during the shootings (the DA's position was that he shot, but my investigation had revealed that he had probably not, and that his involvement was minimal). Based on my investigation, the Def said he wanted to fight the case, and therefore forced the co-defs to have to fight their case as well.

Trial proceeded, and it went very good for us, just as it was going very badly for the co-defs. However, there was still some evidence of my client's involvement. While arguing over the jury instructions, a light bulb went off in my client's head, and he realized (despite my repeated warnings to him about this) that he could be convicted as an aider and abettor based on his association with the co-defs. He then told me, right before closing arguments, that he wanted the 17 years. Unfortunately, that deal was now off the table (most deals are on the table up until trial only). The DA said no, the judge tried to convince her otherwise, but she stood firm - no deal, even for the co-defs, who were being dragged along against their will and facing a life sentence even though they had wanted to plead guilty.

Eventually, while prevailing on most of the counts, my client was convicted of 2 counts of attempted murder (but hey, they found that he didn't have a gun, so he only aided the 2 co-defs) and criminal threats (this time with a gun). Huge victory for me? Well, he ended up getting 6 years plus 2 life sentences (far less than he faced, but still more than he was offered at 17). Interestingly, he is actually eligible for parole in about 19 years (7 for each life sentence, and about 5 of the 6 years), but realistically, he will never be paroled (very few lifers actually get paroled in California, despite otherwise being eligible - but that's a different story).

Now, I didn't beg the def to take the deal when it was offered. I realized that his case was a shakier case, but based on his close association with the co-defs, coupled with his arrest at that location minutes after the shooting (just like the co-defs), I thought that he could be very easily convicted. I also thought that, technically, the evidence on his involvement in the SHOOTING (he appeared to be involved in some of the lead up to the shooting, if not the actual shooting) was thin, and evidence of his subsequent aiding and abetting was also thin, so I thought that it was close enough that I couldn't push him too hard to take a deal. It's a fine line, but when someone has a colorable claim of innocence, or lack of guilt, I don't feel too comfortable leaning on someone to get them to plead guilty. So, I laid it all out for him in a very clear manner, and let him decide, offering him my advice, but not pushing it on him (pushing your views on your client in a case like this can be a poisonous thing to do, and you have to be very careful about it).

So, a bad decision by my client, and now I have another person doing life.

Oh, that association with the co-defs I was talking about? The 2 co-defs were two of his three younger brothers. By his insistence on going to trial, only to change his mind at the end of trial rather than the start, he got both of his brothers life sentences that they would not have otherwise have received. Obviously, his close association was the fact that they were brothers, and the fact that they lived together, at the location where the shooting took place, of outsiders who were hanging around their neighborhood.

So, as bad as it may have been for me and my client, it was far worse for co-counsel and their clients.

PDs Better than Court Appointed Lawyers?

2007-07-14T14:32:00.000-07:00

There's a new study out which compared how defendants did in the federal system over a several year period when represented by federal public defenders and by court appointed (or "Panel") lawyers.

Now, no disrespect to any of my panel brethren here, but the study reached the conclusion that public defenders are better. I have always agreed with that.

A caveat - most panel lawyers are pretty good, and most PDs are pretty good. I just happen to think - where I practice (I can't comment on any other place) - PDs are better. This could obviously be totally different in different parts of California, or of the country.

Here where I work, PDs get paid well, so they tend to stay with the office for a long time without leaving to go private. For this reason, we have a lot of experienced lawyers to learn from. These are people that we can lean on, watch in trial, and talk to daily about our cases. Because we have a bigger office than any private lawyer can have, we always have many to learn from.

Any case that I have, chances are someone else in my office has done something similar and has motions on the subject, strategies for dealing with it, and probably more experience than the prosecutor doing the same case. Furthermore, in dealing the case, we know what these cases have gone for the in past, and have a stronger basis to get that kind of a deal when we go to settle the case in our situation. Knowledge and experience are power.

That being said, there are plenty of great panel lawyers out there. Interestingly, in my experience, most of the best of them came from either the DA or PDs office (more so from the PD's office - no apologies there), where they had the volume of cases and experience to deal with huge numbers of cases.

At a certain point, there is almost no substitute for experience. Obviously, raw talent makes a difference, but, just like in sports, raw talent alone can't do it for you. You ever wonder how professional baseball players can backhand a screaming ground ball and casually throw out a runner from 3rd base like it's nothing? With years of rote practice. This is how us Public Defenders can pick up a murder case, look it over, and have a pretty good idea how they are going to handle it and how it is going to turn out after just a few minutes of reading the file. Baseball players practice for hours a day, every day, to perfect every aspect of their game. PDs do the same thing, handling case after case, and listening to their co-workers talk about cases, until they know these cases backwards and forwards.

Defendants complain that us PDs are in bed with prosecutors because we work with them every day (the first part isn't true, the second part is), these close working relationships appear to make a positive difference according to the study. This is cited as one reason that PDs get better deals for their clients, and have a slightly lower conviction rate at trial.

All in all, it's nice to see study of how us PDs aren't those worthless dump trucks so typically depicted by our clients, but more importantly, in popular culture nationwide. We are good, effective and experienced criminal defense lawyers that any person should be confident in trusting their lives to.

The Libby "Commutation" OUTRAGE

2007-07-02T18:53:00.000-07:00

I had vowed that I wasn't going to blog about this one months ago (because I knew it was going to happen as soon as the guilty verdicts came down), and yet, I sit here in such a rage right now about the Libby "commutation" (I write commutation in quotes because if there is a person alive who doesn't believe that this is a precursor to a full pardon after the election, then I have a bridge to sell you - or better yet, a prior promise by the president to let the case "and it's appeals" run it's course). I know that several of you out there complain to me that this blog strays too often from being a public defender blog into a political blog -point well taken, but this cannot be ignored, and this is a public defender issue.

You see, I represent those who commit crimes and actually pay for them, because they are not rich, white and Republican. They go to jail because their crimes are the "bad" crimes, minority crimes, poor person crimes, etc. Maybe I wouldn't be so outraged if I wasn't so convinced that Bush and Cheney told the principles involved in the cover up (Libby & Rove) that they had better cover up the involvement of the top two, and in return, they would get pardoned. In other words, go ahead and commit a crime to cover up our act of treason, and we'll pardon you later. Is there a person alive who believes that Bush really believes the penalty for perjury and obstruction of justice are too harsh? Or is it only applied to Libby (in other words, in contrast to his statement, he really doesn't respect the verdict of the jury)? Has he been going through some introspection concerning the harshness of punishment of late? This, the most retributive of modern presidents, who has utilized the power of pardon and commutation less than any president in a century?

Of course not, there has been been a quid pro quo that has taken place here, which has shown this whole process to be a sham. The investigation into the leak, the special prosecutor, the trial - a joke, one big joke with the outcome predetermined. The only downside for Bush is that he was forced to play his hand before the election, and not after as everyone had been hoping by putting off the sentence until after the appeal (an appeal that never would've finished if it had extended past election day, 2008).

And why is this a proper subject for Public Defender Dude? Well, I'll tell you why Public Defender Dude is so pissed off, rather than me just as a political being. I represent people who commit crimes. They have only one advocate - me. They get convicted based on (sometimes spurious) evidence. They spend very long periods of time in jail for breaking those laws. To hear this president, who has been at the forefront of retributive justice his whole political career, to suddenly be concerned that the punishment is too harsh is sick. What is really going on here, as in the US Attorney scandal, is the utter politicization of crime -Republicans can commit no crimes, only Democrats or groups that ordinarily lean Democratic (ie - poor and minority people, or people out there trying to increase voter participation, or things of the like). Public Defender Dude is utterly seething right now because the fact that we live in a country where there is no equal justice under the law has just been laid bare for the whole world to see in the most blatant, sick, evil, cynical and despotic manner possible.

Think we live in a free, equal, democratic country? Ask my clients how true that is. Or just ask me. I'll tell you to think again.

I sincerely hope the Democratic Congress doesn't let this go. I have no doubt that this had been agreed upon in advance, and that this commutation and pre-pardon are nothing more than a continuing attempt to obstruct justice. Bush's dad did it with Weinberger, North, Poindexter et al. Ford did it with Nixon, and now Bush is doing it with Libby. And to think that Republicans became outraged at the Mark Rich pardon, and now may compare that to this pardon, or blithely ignore that prior outrage to applaud this, just makes me red with anger. They did the same thing with the Lewinsky affair to compare it to Watergate (not really because they meant to say that Lewinsky was that bad, but to attempt to lower the meaning of Watergate by debasing it with comparisons to something as meaningless as the Lewinsky affair). The same thing is set to happen here by the Republican spin machine - this is no different than the Rich pardon - not to make the Rich pardon seem so terrible, but to make this seem so banal.

It is the true banality of evil.

Now that I've got that off my chest, I feel a little bit better.

I want defend cops - I'll never lose

2007-06-28T16:17:00.000-07:00

Maybe if I get tired of representing of losing trials at some point, I'll stop representing the poor people who did not choose to go the police academy when they were 19. It is apparent that it is close to impossible to convict a police officer.

Let this be a message to any client I represent in the future who says to me "the cops are lying, I want to go to trial!" that jurors, like the courts, and the rest of the government, tends to give blanket immunity for police misconduct.

How a jury could completely acquit Mr. Love, who shot an unarmed man who was lying on the ground and only began to get up at his specific command - and then lied about it in a police report, only to change his story when he saw the video of the incident, is beyond me. However, it's clear to me, the message to other officers is clear - shoot, kill, do whatever you want, just keep the hoard away from me. Laws, justice, the Constitution, all fine and well, as long as it is not followed in MY neighborhood by MY police men.

Oh, I really need a new job. I can work for the police union, and when I say to the opposing counsel "we'll go to trial," they will really be afraid, and I really may win the vast majority of my cases.

Has Libby's sentence created a new group of Right-wing civil libertarians?

2007-06-17T20:11:00.001-07:00

I know it grows old, my harping on the right wing's constant attempt to be tougher and tougher on crime, to put as many people in jail as possible, to run campaigns on anger and fear, resulting in a 25 year growth of the prison industrial complex that is unprecedented in our history. And I know that Dems now do it as well (they learned their lessons from Dukakis, after all, that being against the death penalty, for instance, wins them no elections). The question I have is whether the Libby conviction and sentence will be a watershed, or if the words we are hearing spoken from leading conservatives in this country are principled objections, or two-faced political blather designed to back up the notion that conservatives can never be guilty of a crime (if they were doing those crimes to further conservative causes).

So I have to ask, will the Libby situation change anything? Will the constant calls to pardon him right now mean anything? Will the comments that he was the victim of an overzealous prosecutor have any spillover to the overzealous prosecutions of people like John Walker Lindh (the "American Taliban"), Martha Stewart, or the numerous other attempts to criminalize what is otherwise non-criminal behavior.

Or, will this create a change in the really absurd law that it is against the law to lie to a federal agent. Think about it, they come to you, ask you questions, and the law requires (not under oath, mind you), that you have to tell them the truth? So if they come up to you and ask if you have pot on you, you have to answer yes or go to jail? Give me a break. But that is another law that pushes jail for things that really should not have people locked up.

So, as the jails fill with people like Scooter Libby (and I fully admit that if this wasn't a general in the war on America launched by the right wing, I would normally oppose his incarceration for an offense like this - but hey, you reap what you sow), will this begin to change the sentiments of the nation by changing the sentiments of the right wing?

Will the numerous briefs submitted by right wingers like Robert Bork (who has probably never seen a prison sentence - of non-conservatives - that he didn't like) challenging the conviction and sentence cause a ripple in the rest of the criminal justice system to finally begin toning things down?

Don't bet on it. This is not principle we're dealing with here, this is bare knuckled politics. There is no disagreement with the basic conservative doctrine of running on fear and vilification, and combating obstacle with as much brute force as possible. There is only the problem that it hit a high profile conservative this time. Rest assured, Bork, Gingrich, and the other cast of characters now calling this sentence unconscionable will be standing front and center vilifying "liberal, activist" judges the next time a sentence is reduced against someone who's not a card carrying member of the conservative movement. And they will do it with a straight face in the manner that only a true hypocrite can.

Bet on that.

Bye, bye, Nifong

2007-06-16T15:41:00.000-07:00

Astounding as it is, the state bar of North Carolina has disbarred a prosecutor for ethical violations in prosecuting a case. Suffice it to say, getting a prosecutor disbarred for doing their core duties (as opposed to doing something unethical outside their duties, such as committing a crime on their own time) in an unethical manner is an unusual occurrence. North Carolina has a pretty tepid history of punishing prosecutors who withhold evidence. In the case of Alan Gell, prosecutors withheld important exculpatory evidence and gained a conviction putting Gell on death row for 9 years. He was lucky enough to get a new trial and get off death row in an unusual manner - through exoneration. Consider him lucky. In that case, and another, prosecutors got off with barely a slap on the wrist for wrongly putting someone on death row. You can read more about those cases here.

It is hard not to be a little cynical about this whole thing. As I've discussed previously, one of the main reasons this case has made the press, and that Nifong is getting the book thrown at him, has to do with race and class. Obviously, we all know that the defendants in this case were white and relatively well-off (playing an "upper middle class" sport lacrosse no less) and that the victim was African American and poorer. I don't think that it's a straight race or class issue, but both work hand in hand to create a very dynamic for these defendants and prosecutor than you'd see in your typical case (typical cases involve poorer people and higher percentages of minorities).

This is why prosecutors can withhold evidence on poor minorities (or even poor white people - Gell was white), and generally escape serious punishment. Now let's be clear, Nifong did some serious digging here, putting himself front and center of this absurd prosecution -probably in order to ensure his re-election. So, he was not your typical prosecutor withholding evidence, but it does bear some scrutiny that Nifong did things that prosecutors everywhere have done (I'm not saying that all prosecutors, or even that a large percentage of them, do this. Far from it, it's a small minority, at least where I practice), yet most prosecutors face little or no sanction for doing these things.

And what is the message to other zealous, or especially overzealous, prosecutors? The message is that you can continue to do this without real fear of sanction. Think about it. You're a prosecutor in a heinous case with a defendant you despise. You believe he did it, but you know you probably can't prove it. You can withhold a little evidence, plead ignorance, and have the person go away for a decade or two before his case gets reversed (which is a longshot anyways, since 90% or more of all appeals are denied anyways - even for likely innocent people - think "harmless error"), if it gets reversed at all. Or you can be ethical and watch him get acquitted right now, possibly hurting your chances at advancement within your office. Moreover, it's a blow to you personally.

Most prosecutors won't care, they'll do the right thing. However, there are a number of overzealous ones out there, aware of the manner in which the courts and state bars enable this activity, that will do the wrong thing - just because they can.

It's nice that Nifong got nailed, and got nailed the way he did. I rather think it has more to do with the type of person he dragged down rather than what he did. He went after otherwise really good people whom he dragged way down in contrast to otherwise unremarkable, or even bad people, who didn't fall far from where they already were when ensnared by unethical prosecutors. I'd like the punishment to prosecutors to be the same regardless. Remember, Nifong felt like he could act with impunity towards these otherwise good, law abiding, people only because of the well-trod path laid out before him by his predecessors. That should scare everyone.

Paris Hilton - Political Prisoner?

2007-06-08T15:16:00.000-07:00

Alright, I have no sympathy for Paris Hilton. I think that she has spent a life of absolute debauchery brought upon by her extreme wealth, where nothing has ever been asked of her, only that she have a pulse. By her good looks and her money, she has become, to some, a celebrity. To me, she represents much that is lamentable about our society and its love of wealth and celebrity, and our willingness to lionize people for pretty much no reason at all.

When these otherwise worthless people commit crimes and get treated better than my clients, by virtue of their wealth or celebrity, it pisses me off. First of all, it gives us Public Defenders a bad rap - people assume that the reason we can't get them the same results as the Paris Hiltons in the world is because they don't have the money to hire a high priced group of lawyers like she can, and they're stuck with worthless lawyers like us. In reality, the reason they don't get the same deals as the celebrities is because they don't have enough money to hire the publicists that the celebrities do. You think many of those lawyers know the ins and outs of the criminal justice system better than those of us in court every day do? Not a chance. Some do, but not most.

That being said, Paris is clearly bearing the brunt of the backlash to her ephemeral celebrity status, the fact that she's well known for being well known, and being vacuous at that. I disagree with those who contend that no one gets long jail sentences like she did (long?) for driving on a suspended license and violating probation. I haven't done misdemeanors in over a decade, but when I did them, people regularly got long sentences - longer than this - for driving without a license while on probation for DUI. It was not unusual at all, and the fact that Paris got her 45 days was, frankly, not a huge surprise.

The area that she was mistreated was in the judge going out of his way to ensure that she spent her time in county jail, rather than on house arrest or, more likely, in a city jail (ie - private jail, or a much more cush jail). Like I said, I haven't done misdemeanors in a while, but when I did, I almost never saw a judge deny someone city jail when they requested it. I have even seen judges allow it for felonies, although most local jails will not accept felons in most situations. The jails cost about $100 per day, although they have deals for longer stays, and sometimes will waive some costs for poorer people (although that's rare). The stays are usually not that long, but I had a client do it for 90 days or so in a possession of marijuana for sale case (a felony). I have even appeared in front of this judge before and never heard him expressly deny someone city jail if they requested it (although I don't remember anyone requesting it).

However, the judge went out of his way to ensure that nothing of the sort would happen in this case. He (rightly) reckoned that if she was allowed to go to a city jail, it would have almost no deterrent effect on her, and it would be a drop in the bucket financially. But, the only reason that he knew this was because of who she was. If she was some other wealthy (but unknown) person who appeared in court on a case, he would probably have let her do the city jail, or house arrest.

And most certainly, if the person in this case was not Paris Hilton, the Judge would have never known that she had been released early (something that happens all the time in Los Angeles County due to overcrowding or other reasons). The fact that she was well known and an international firestorm took place when she was released alerted him to this fact that happens every day in his court. I could almost guarantee you that if you look up all of the booking numbers of people sentenced to jail for similar sentences by this judge on this day for similar offenses (and he handles almost no other kind of case), you would find that many of them have also been released by now as well. The judge probably has no clue about this, nor would he ever care or find out, because none of those people are Paris Hilton.

So, I think, on balance, that Paris got screwed. I have no sympathy for her, and it's probably time she got the short end of the stick for once, considering that she has gotten the long end of the stick her whole life. However, it's nice that I can point to all of our clients in the future when hey complain about me and say "hey, it could be worse, you could have Paris Hilton's lawyers, look what they did for her!"

UPDATE - I've already found 2 instances of women sentenced at the same courthouse the day after Paris who did dramatically less time in jail than Paris is slated to do. Poor Paris.

Ashcroft the hero of the 4th Amendment???

2007-05-20T09:12:00.000-07:00

Over at Talking Points Memo, Josh Marshall has given voice to some of the murmuring about whether former Attorney General John Ashcroft is a 4th Amendment hero in light of former Deputy Attorney General James Comey's testimony before Congress last week.

For those who somehow missed this firestorm, evidently Bush Chief of Staff Andrew Card and Counsel (and present AG) Alberto Gonzalez raced to the hospital bedside of Ashcroft to attempt to reauthorize the illegal wiretaps that they were conducting outside of FISA (Foreign Intelligence Surveillance Act). This despite the fact that James Comey was acting AG in light of Ashcroft's surgery and hospitalization (and opposed to the extrajudicial surveillance). Comey heard about the pending visit, and raced there ahead of them, prompting Ashcroft, in his weakened state, to stand up and oppose it when Card & Gonzalez got there, with everyone threatening to resign if the plan went forward over their objections.

Dramatic stuff, and it certainly paints Ashcroft in a more favorable light than someone of the ilk of Public Defender Dude would normally be inclined to give him credit for (and you can go to the TPM article for more details on the many reasons to have disliked Ashcroft over the years).

More interesting to me is, how do we explain this? Was Ashcroft not as right wing and ideological as we thought? Did we underestimate him? Were these other people just so over the top that they made him look moderate?

I have a theory. Generally, I think that Ashcroft is as right wing an ideologue as we are ever likely to see. However, he has a very specific ideology that adheres to some basic principles, some of which he actually shares with those on other ends of the political spectrum (such as some degree of adherence to the 4th Amendment). It is possible to go too far for even his principles, despite the fact that his regular state is so far over the edge already. Be that as it may, he is a person of principles, and when dealing with people of principles, it is possible to go too far.

I believe that the Bush Administration is filled in many respects with people without any principles except power. The rot obviously starts at the top, but it is exemplified by people like Cheney, Harriet Myers, and Alberto Gonzalez - who appears willing to destroy the Justice Department and decades long traditions of non-political interference in the administration of justice in order to achieve short-term political gains, such as having a few hundred less people vote in some jurisdictions in order to possibly swing those votes in the GOP's favor.

Gonzalez is one of the greatest examples of a lack of any discerning principles except power. When he served as Chief Justice of the Texas Supreme Court, he struck down a law that required parental consent for abortions, angering many right wingers. I don't believe that he had any strong moral principles that made him do this (nor any compelling legal authority - the Texas Supreme Court had upheld laws banning sodomy). Later, of course he has become one of the great fighters against abortion in all circumstances, with his latest victory in the Supreme Court, it is apparent he and the Bush Administration have left Roe hanging by the most narrow of threads (one more resignation - that's all it takes. Hold in there John Paul Stevens).

In office, Gonzalez has shown a willingness to sign on to anything that Cheney has asked him to do, without the slightest reservations. Whether it is the torture memos, the surveillance program, Guantanamo, and lord knows what else (the signing statements?), he is willing to go with anything in service of power - his, and his governments. He is willing to provide the flimsiest of legal justification for whatever action the Bush administration wants to take.

Cheney and Bush, of course, wish to do whatever they want as leaders, and have only the slightest regard for the democratic process, here or in the rest of the world. Principles are completely divorced from their manner of governing. They have brought quite a few lackeys along with them that apparently agree with that.

Gonzalez is clearly one of them.
Ashcroft was clearly not. He agreed with them vociferously on 95% of what they did, but that 5% went so over the line, it was apparently too much for even him.

What can we make of the Duke Lacrosse Rape case?

2007-04-17T16:14:00.000-07:00

I don't have a huge amount of time to blog about this right now, but the case clearly cries out for a comment or two from a public defender perspective. Let me make it perfectly clear. Had these gentlemen been from a poor minority neighborhood, had they played a less genteel sport than lacrosse (like, say, basketball), there is a very good likelihood that these people would've gone on trial a long time ago, or at the very least they would have taken a deal on the case.

Why?

First of all, they would have spent the whole pretrial period in custody. They would not have been able to go on TV all the time, looking dapper, standing by their lawyers as the lawyers proclaimed their innocence on national TV.

The typical response from society - oh, these poor guys, what they must be going through, would be totally different if they were poor and minority. Instead, it would've been, what do you expect a bunch of minority basketball players from the ghetto to do? That is, if the case had even been publicized.

Usually, publicity is bad for defendants, unless they're innocent (or the case is extremely weak), like in this case, or the Kobe Bryant case. In these cases, publicity continually points out the weaknesses in the case, and acts a constant pressure point against the prosecutor to show how the initial inclinations against guilt are wrong, and how the person really is guilty. This means that they are constantly scrambling, responding to press leaks, and things of the like, instead of sitting back and watching the defense scramble.

Rest assured, had these been really poor people, there would have been no real presumption of innocence like there was in this case, there would have been no national lamenting that they were being railroaded.

Late discovery? HA! I had a DA one time not turn over any of the evidence that my client was innocent until after the preliminary hearing - a preliminary hearing where she put on evidence and opinions that were completely contradicted by the evidence she suppressed from me until after the preliminary hearing. Why did she do this? Because she can, because she was an evil DA who would do anything she could to get a conviction, and because no one really does anything about it. The DA in the Duke case faces ethics charges, let me tell you, you can probably count on one hand the number of California DAs who have ever even been referred to the State Bar for ethics charges for things like this, let alone actually charged, let alone actually punished.

And finally, depending on the lawyers they got, there is a very good likelihood that these people would've been convicted had they been poor minorities. Without the real presumption of innocence, with the full resources of the state against them, with the word of even just one shaky witness, that is sometimes all it takes. Hell, with the way the California Courts rule on hearsay and things of the like, the prosecution maybe could've gotten a conviction here without even putting the victim on the stand. And there would be absolutely no one to yell and scream about it - except the defendants' families, and no one really listens to them anyways.

And finally, had the DNA evidence come back a year or so later exonerating the defendants, despite the DA having withheld it, plenty of corrupt California Courts would've found that it was "harmless error." After all, just because someone else left semen in her didn't mean that these people didn't rape her.

So, while letting out a nice sigh of relief that these innocent people were exonerated, just remember, there are dozens, probably hundreds, perhaps more, just like them. Facing charges on extremely weak evidence with over zealous prosecutors and compliant courts that will do nothing to stop them.

This case is not a case that can allow us to breath a sigh of relief, and to say "this proves that injustices are caught," but rather one to say "what if," and to wonder what might have been.

"Prior Bad Acts" and the Phil Spector Trial

2007-04-05T14:16:00.000-07:00

It is an axiom of the law of evidence in criminal law, for centuries, that one's character cannot be used against one in a prosecution. The theory is that people should be convicted of crimes based on the evidence of these crimes, and not based on their character. Consider how easy it would be to convict just about anyone of a heinous crime if all one needed to present at trial was the fact that this person was a really bad person who had done bad things in the past.

For example, Charles Manson (generally the poster child for evil) is currently housed at Soledad Prison in California. Presumably, people get killed there with some degree of frequency. Assume that someone dies there, and it's unknown who did it, but perhaps Manson had the opportunity to do it. Imagine how easily a prosecutor could get a conviction against Manson if all he had to do was present evidence of what an evil guy Manson is? There would be no need for real evidence linking Manson to the crime, because most juries would be inclined to convict Manson no matter what.

However, California courts have, over the years, stripped away at that theory. Under Evidence Code Section 1101(b), and due to several California Supreme Court rulings, more and more prior bad acts of defendants are now admitted for purposes of proving that they committed the present offense.

A couple of years ago I had a murder case that was a "whodunnit." No issue at all as to motive, or intent, just who did it. There were serious doubts that the defendant was actually the one to commit the crime. The prosecution tried to present evidence that my client was convicted over a decade earlier of robbing a liquor store with a gun in order to prove his intent was robbery in this case. It was outrageous, and the judge fortunately forced the prosecution to accept a stipulation as to all elements of the crime except identification in lieu of letting in the evidence (the prosecutor would have much preferred to have brought in the priors, being far more harmful to my client than the admission that the crime was committed for purposes of robbery). Of course, the case hung, and was set for retrial. Another lawyer did the 2nd trial, and this time the judge let in the priors, and this time the defendant was convicted in mere minutes, and sentenced to life without parole plus an extra 200 years or so for good measure. the case was reversed (thank goodness, the person really was innocent).

Which brings me to Phil Spector. As noted in this LA Times article, the prosecution is bringing in evidence that Spector has menaced women with guns in the past, and harbors animus towards women in general, treating them with contempt and violence. The situation here is different, though, and actually points to areas in which the courts have probably correctly ruled that this type of evidence is admissible.

In the Spector case, the defense has alleged that the victim killed herself, or that the incident was an accident, or mistake, but that Spector never intended to kill the victim. The prosecution seeks to present these prior incidents to show that this was no mistake, or accident, but that this is consistent with Spector's pattern of activity. Consider the contrast with the case I had, where the only issue was "whodunnit," and the prosecution was putting on this evidence as straight character, for purposes of identification. Here, the evidence would rebut Spector's claim that what happened was not a volitional act on his part. This would be a more correct interpretation of the law (I'm convinced that the judge in my case was either really stupid, or really evil, or both - and he was reversed).

There is little danger in the Spector case that he will be falsely associated with the case due to this evidence - it was at his house, and she died with his gun, and he was the only one there. He has presented a scenario of how the crime took place that is at odds with his past. It's not like he's saying "I didn't do anything," and they seek to use evidence that he slapped his wife before to show that he's done "something" in the past. Here, the victim is killed in a relatively peculiar way, and the suspect denies involvement by trying to exculpate himself with a specific story. However, it's been shown that has acted in a very similar manner to this before.

It's a close call, but not that close. Judge Fidler has let some of this stuff in previously, I'm convinced that he'll let this in as well. If he excludes it, it will only be due to the lateness of the discovery, and probably not do to the relevance objection.

Gang Prosecutions - Politically Correct Prosecutions going after Low-hanging fruit

2007-03-30T21:21:00.000-07:00

I've written about it before, but it's become ever more absurd where I practice law. As noted in this Los Angeles Times article, the Los Angeles DA is filing ever more cases with "gang allegations" against people, no matter what the case, increasing exponentially the amount of time people are getting in prison.

First of all, what am I talking about? California has passed a number of laws aimed at gang members over the years, generally in Penal Code Section 186.22. They have basically made it so that if a gang member commits a crime, the punishment is significantly larger than if any other member of society does it. Fair enough, one may say, gang members are wreaking havoc on society.

But, consider the effects. 18 year old kids who spray graffiti on a wall are suddenly being punished not with misdemeanors and a few hours of community service, or even a little bit of jail, but with felonies. And not just any felonies, but due to the gang allegation, the charges are now "strikes" (meaning that for the rest of the kid's life, he faces prison for any offense, no matter how minor, and possibly 25-life for even the most minor of offenses. This follows him forever). Furthermore, they face mandatory PRISON when convicted in most cases (that's to be contrasted with county jail, which people normally get). The prison minimum is generally at least 3 years 8 months, and can go up to 8, 9, 10 years for some of these extremely minor offenses.

Again, we hate gang members, so what the hell, they deserve more than the average person, right? That's the general consensus among society.

However, it gets even worse. Due to the fact that there is this "allegation," it must be proven to the jury. How is that proven to the jury? A police officer ("gang cop") gets on the stand and talks about how evil gangs are in general, how evil this gang is, and all of the terrible things the gang has done. They talk about what great ties this person has to the gang, what his nickname is, and generally slimes him by association with others and the things that they have done.

So consider a robbery case, one committed by a gang member, another committed by a non-gang member (or a gang member against whom the prosecution chose not to pursue the gang allegation). In the case without the gang allegation, the prosecution must prove that this person committed the offense, and if identity is not very strong, the person may very well be acquitted due to the weaknesses in the identification.

In the case of the defendant with the gang allegation, the prosecution will also present a huge amount of evidence that will amount to, not only bad character evidence, but, even worse, character assassination using guilt by association. The identification against the person may be weak, but no matter, the jury will hear all of this evidence about what a bad person this defendant is, if only by way of his associations, and will feel that where there is smoke, there must be fire.

Think about how insidious this is when the prosecution starts seeking more gang allegations against people. This means that more and more people will be charged with exceptionally weak cases, with the prosecution knowing that these people would never be convicted absent the gang allegation. Or, you get cases where the prosecution wants someone so badly that they file gang allegations on people who have weak cases just to strengthen the substantive guilt part of the case.

The net result, more innocent people convicted, more cynical presentations to the jury ("he's a gang member, convict him or else he'll go out and do a drive-by in your neighborhood"), longer prison sentences for less and less serious charges. More people saddled with strikes that result in life sentences later for ever more minor offenses. People who make minor mistakes as kids that they used to be able to outgrow now following people forever, with no chance of redemption.

I can't tell you how many ex-gang members there are out there in society who are making good with their lives in their mid-20's into their 30's and beyond. They are all over, although you probably don't notice them anymore. They could be waiting on your table, or supplying the restaurant that you go to, or even could be your professor at college. These 2nd chances are a hallmark of democratic society that allows for people to move from one strata of society to another. By taking these chances away from kids when they are very young, forever, we risk creating a permanent underclass, and worse. We risk pushing people like this into permanent gang status (they have no incentive to leave because no other part of society will ever take them) or warehousing them forever for even the most minor types of offenses imaginable.

So, there are very real world consequences for these idiotic choices that the prosecution have engaged in pursuing excessive gang allegations against these teenagers. And it is only going to get worse, in the minds of prosecutors, these are not people, only low-lying fruit that is ripe for easy picking.

6 Month Hiatus - Over?

2007-03-24T23:13:00.000-07:00

I can't believe it's been 6 months since I've last blogged. Things had slowed down for me dramatically, mostly because I've been so busy (it's good to know for all of you taxpayers out there that Public Defender Dude has been earning his keep while eating at the public trough).

It's not that I've lost inspiration, things I see still bother me quite a bit. I've done several trials of late where absolutely absurd gang allegations were being charged against my clients, completely depriving them of a right to a fair trial. One was in an attempted murder trial that the police claimed to have witness my client do, which I hung. The other one was a robbery case that was a complete ID case, in which I'm quite sure the jury heard enough of what they needed from the gang officer to convince them that any two people sitting in the defendant's chairs with those tattoos would've been enough to convict (not to say that the person may not have deserved to be convicted, but I'm quite sure that the burden of proof dropped dramatically from beyond a reasonable doubt to something less after the cop's gang testimony).

One reason I haven't commented on those trials (don't worry, I've done others as well), is that, as a pretty anonymous blogger, too much comment on those trials during the trial would completely blow my anonymity. The other reason is that I'm just too beat, and there is just too much to say. Synthesizing it down to a single post is just too difficult.

I also get the feeling I've said so much about so many of the other things on my mind, it would just get too redundant.

So, I've said nothing.

That being said, I have quite a few thoughts on things such as Phil Spector, the firings of the US Attorneys, Scooter Libby, the death penalty, and other things.

So, I'll be back sooner rather than later, probably with a little blurb on Spector or the US Attorneys, or the future indictment of our present attorney general. There is just so much to talk about, I've been paralyzed by too many choices. Forgive me, to those who have written me emails wondering where I've been (and there have actually been quite a few). But, you've got me back.

Nancy Grace drives mother of kidnapped infant to kill herself

2006-09-13T13:43:00.000-07:00

I've often thought that Nancy Grace is just an evil witch, the worst of the worst that prosecutors have to offer, coupled with that intensive desire of the media to sentionalize any issue that will make them more money and get them more viewers - people and constitutional rights be damned.

Well, evidently she has finally driven an innocent woman to kill herself. Grace pounced on Melinda Duckett, who's son was evidently kidnapped out of her house while she was watching TV, when she appeared on her show. Shortly after being pounded by Grace, she shot herself.

Of course, this comes on the heals of Nancy Grace continually pushing Elizabeth Smart, the Utah girl who was kidnapped for about a year, causing Elizabeth Smart to literally demand that Grace stop asking her deliberately provocative questions (follow this link here for a transcript and video of that incident). Obviously, Grace cares more about her agenda and ratings than she does about human beings - one of the worse traits possible in a prosecutor (or ex-prosecutor).

Now, I don't know if the woman really had anything to do with her child's disappearance, she and the father were originally suspects. But this woman got no due process on Grace's show. She was verbally set upon, without any real ability to defend herself against the acerbic host, and was completely defenseless. Who knows, maybe the woman actually killed her child, and I don't have a lot of sympathy for the mother who killed herself. But, maybe she didn't. In that case, this is an even greater tragedy, one we should lay the feet of Nancy Grace, a truly terrible person.

I only wish they had some great defense lawyer on the air who would put her in her place.

LA Times Runs Series on Norwalk Public Defender

2006-09-05T13:46:00.000-07:00

The Los Angeles Times is running a 5 part series that is apparently focused entirely on a PD in the Norwalk Branch of the LA County Public Defender's Office. You can read the article here, and from there you can find the other articles in the series. Today's is part 2.

So far, the article has been very well written and fair to PDs, putting us in a better light than we are normally put. The articles have so far emphasized things that I've said for a long time: we frequently believe deeply in the cause of justice, equal access to that justice for people even if they're not rich, and fighting for individuals as well as you can, without judging them.

This does not, of course, mean that we are in favor of crime, or that we approve of many of the things that our clients do, but that we understand this basic principle: If you ever do something wrong, something that may very well deserve of punishment, and you call a lawyer, you want someone who will handle your case as well as he can without telling you that you are bad person, or deserve whatever you get. For all of us (relatively) rich folk out there, we take this for granted, we expect that when we shell out large bucks to a private lawyer that the lawyer will do everything possible within the bounds of the law for you. As public defenders, we do that for our clients, even though they haven't personally written us a large check to get us to do it.

Great series so far, let's hope it stays this good.

UPDATE

The rest of the series was just as good as the first couple of stories. Well done, well written. Finally, public defenders aren't shown as being total morons and sellouts. It's about time!

A few thoughts on John Karr

2006-08-30T13:10:00.000-07:00

Alright, so we know that this guy was a nut, and that he had nothing to do with killing Jon Benet Ramsey, and clearly that the media circus surrounding his arrest and extradition was among the lower moments in an low profession (at least the tabloid media, which is what most of the media turns into when confronted with something like this - lord knows they don't want to be left behind by the tabloids as happened in the past).

But, I'm somewhat interested in a couple of legal issues that happened here, the rush to judgment, and the false confessions.

On the rush to judgment front, that is clearly what happened here, if not by the DA (who kept expressing reservations as she flew him business class from Thailand), certainly from the rest of society, which had pronounced him freak, and therefore guilty once they got their hands on him. This is not quite like Richard Jewel (the alleged, presumed, and then proven otherwise Atlanta Olympic Bomber in 1996), where the case languished, suspicions increasing, and everyone who knew him pronouncing that he was just the type of person you'd expect to bomb the park ("he's a nice guy, keeps quiet, to himself, not too social...."). Before he was completely exonerated, he'd been the subject of so many smear articles and descriptions that he'll forever be associated with that bombing, even though, by all accounts, he was a hero (how fickle heroism is). More importantly, had that been a less visible case, with less scrutiny by law enforcement, he'd probably be rotting away in jail right now, the police being comfortable that he looks guilty enough, and there's no need to do more work that his lawyers would only use to manufacture reasonable doubt and get a guilty man off.

Karr's case doesn't rise to that level, mostly because, unlike Jewel, he said he was involved, and because the case was resolved so quickly and emphatically by DNA evidence showing he wasn't involved.

But, this leads to the other issue, false confessions. I can assure you that had there been no DNA evidence at all in this case, Karr would've gone to trial and been convicted largely on the basis of his statements admitting his involvement. What would the DA have said? "Why, of course he did it, he admitted it. Who would admit to doing something they didn't do?" Well, obviously a lot of people do that, for various reasons. In a large amount of the death row cases where the defendants were exonerated due to DNA proof that they were innocent, the defendants had "confessed," and their confessions had been admitted against them in trial, with devastating results. Some are browbeaten into confessing to things they didn't do, others like to brag (usually they're not as nuts as Karr appears to be, in that he was so self-aggrandize that he wanted to be associated with this case and was willing to go to jail just to have that association.

That being said, bragging about things that you have only marginal involvement in and trying to give yourself more credit than you deserve is about as common as any other form of bragging (honest or dishonest). This is why many gang members, who consider it a badge of honor to waste a few rivals with a single burst, may brag about some involvement in that shooting to their friends, even when they had nothing to do with it. And as a result, many of those statements, true or untrue, are used against them at trial with the same devastating effect. Of course the DA argues at trial that "he must be telling the truth" (and frequently he is), but they will often say at the same time that any exonerating statements should be ignored (he must be telling a lie if he denies involvement - notice the nice Catch 22?). The real problem is when those statements are used in lieu of actual evidence, and the DA relies on these often unreliable statements, coerced, bragging, self-aggrandizing, or whatever, when they don't have any actual evidence.

It didn't fly in the Karr case. It should be viewed with greater suspicion in all other cases as well. Show me the actual evidence, not just some overhyped statements that may or may not be true.

The President is NOT above the law!!! - NSA program struck down

2006-08-17T11:31:00.000-07:00

I want a terrorist to his this country as much as the next guy, which is to say, not at all. I also want our country to have something important to preserve - freedom, lawful institutions, law and order, democracy, silly little things like that. For the past 6 years those concepts have given way to doing away with the evildoers. I'm glad to say that freedom and democracy took a large step forward today with Federal Judges opinion striking down the NSA's warrantless wiretapping program as an unconstitutional search, and in general, an unconstitutional seizure of power by the Presidency over the other co-equal branches of government. The article's here. Talking Points Memo's Muckraker has some choice quotes here.

Really good stuff. Freedom, democracy, due process and the American way has reasserted itself.

New Ruling in Secrecy case takes us closer to tyranny

2006-08-11T11:37:00.000-07:00

I hate being like Chicken Little, constantly claming that the sky is falling. In previous posts I have likened some of our country's attributes to things going on in China, suggesting that we are heading in their directly while we urge them to head into ours (and while they actually do head in our direction).

The latest thing to come out is really chilling. A couple of lobbyists with AIPAC (the pro-Israel lobby in DC) are charged with espionage when they disseminated classified information that they came across. The manner in which these specific people came across the information isn't as important as the judge's ruling in allowing them to stand trial is. He said that one need not have a security clearance, nor have any particular duty to the government if one receives classified information. If you pass it along, or disseminate it in any manner that intends to harm the US OR help another country (even a friend, I guess, and even if it doesn't intend to harm the US), then you can be found guilty under the Espionage Act.

This means that every journalist who writes about about evil acts that the US is doing may be held under the Espionage Act. This, of course, is what some conservatives like Bill Bennett and Rep. Peter King (R NY) have been pushing for a little while, since our embarrassing actions have come to light. They don't have a problem with the actions, just them coming to light, and they've pushed to have the press put in jail as a result.

China and Russia today put people in jail for embarrassing the government under the theory of Espionage. In fact, every totalitarian government in history has tried to imprison those who critisize and embarrass them, all under the guise of espionage or damaging the country. in Russia, they put scientists away for disseminating scientific and environmental reports in a way that shows some of the terrible things that the Russian government does. In China, they put journalists away who talk about government's abuse of authority and corruption. And now, in the US, under the fig leaf of "legal authority" by using a compliant and unquestioning judiciary, we will put away journalists who do the same.

Remember the Taguba report, that exposed the atrocious behaviour of our soldiers at Abu Ghraib? The reporter who broke that story could be in jail, under the theory that it harmed the US (how about the fact that it helped the US, by helping us improve our behaviour?). It could go further, scientists who expose the administration's lies and machinations on things like Global Warming, evolution, drug approval processes or any other number of whistleblowers who regularly keep us informed of this (and other) administration's evil ways.

Think I'm paranoid? Even Contributing Editor Jonathon Adler wrote similiarly in the National Review Online, using more examples directed to his audience (he talks about people who wrote critisizing the Clinton administration who would've possibly been susceptible to prosecution under the Act under the theory now advanced).

And this is the point, people in government often become more obsessed with their remaining in office than in the better good of the country (can there really be any debate about this at this point in our nation's history?). The notion that power corrupts, and that absolute power corrupts absolutely is not new either. You put those two things together, along with the power of the Espionage Act being applied corruptly, for political purposes, in order to stifle lawful and appropriate debate, and you have the markings of an unfree society.

This is something Americans of all political stripes should agree on.

Once Again, China Leads the Way on Freedom - This time, the Press

2006-07-04T23:30:00.000-07:00

Previously, I posted here about China's methods of prosecuting people accused of crimes, and how their methods must be the envy of prosecutors everywhere for their efficiency and brutal effectiveness.

Now, I see that China has come up with a plan that would put that pesky NY Times, and other pro-Al Qaeda rags out of business once and for all - a new subversion law aimed at all news outlets, even foreign ones.

In light of recent incidents in which the Times and others have had the audacity to report on unconstitutional behavior of our political leadership, many conservative commentators have recommended that these newspaper editors be tried for treason for reporting this information. Obviously, this stuff is far more important than a top political advisor to the president leaking the name of a covert CIA agent who was working to stem the international trade in Weapons of Mass Destruction (not like we fought a war on that issue or anything), at the behest of the president and vice president. And, raising a defense that the government has already talked about doing this exact stuff (which they trumpeted up the highest walls in the aftermath of 9/11 that they were going to do this), would not defend the press.

The fact is, this press is just too damn inconvenient for a war, and damned if we weren't so happy back in WWII when we our freedoms were severely restricted and those pesky Japanese were stuck in internment camps, where they all belonged anyways. So, harkening back to the good old days, conservatives have seized upon the latest reports of the press to try to get them imprisoned, or, maybe even executed (Treason is punishable by death in a time of war, and even though we aren't actually in a time of war, Conservatives commentators say it often enough, and conservative voters vote that way often enough, that perhaps a jury of the Time's peers, picked at random in some prosecution-friendly county like Selma, Alabama, or maybe Sugarland, Texas - home to Tom Delay, would look past those silly technical rules and find we're at war and vote for death). I'm quite sure that Samuel Alito, Clarence Thomas, John Roberts and Antonin Scalia will give them a fair shake when the case hits the Supreme Court. Who knows, maybe that traitor John Paul Stevens will be gone by then, and we can have Robert Bork on the bench then as the 5th vote to repeal the law of gravity as being in conflict with the Bible?

But, I digress, for, China has worked it all out. Just make a vague law that says you can't hurt the country in any way, and then start putting people in jail and letting them enjoy the intricacies of the Criminal Justice System, China-style.

This must have William Bennett literaly frothing at the mouth in anticipation. I can see William Kristol and Karl Rove canvassing right now with Hu Jintao asking him for advice on how exactly they should word the law in order to get it past a compliant Congress.

Yes, it's nice to have allies in our war on terror who have similar respect for our values like we have. GO CHINA!!!!

Sometimes I wonder if the Chinese government has a huge sense of irony and does this stuff only to so that they can show common cause between the authoritarian left there and the authoritarian right in our country. Boy, are they funny or what?

The Courts conspiracy of silence on police misconduct

2006-06-23T14:39:00.000-07:00

The US Supreme Court appears to have 4 votes suggesting that the exclusionary rule, which says that illegally obtained evidence by the police is inadmissible. The justices (I use that term extremely loosely) say that police misconduct can be remedied by other means, such as lawsuits, internal discipline, and publicity, and other things of the like. I guess that it won't be any huge surprise to anyone that I find these arguments dingenuous bordering on dishonest. Conservative Judicial activists like Thomas, Roberts and Alito (and to a lesser extent, Scalia)clearly know that plenty of police misconduct takes place, they just don't care, as long as it doesn't happen to them. The fact that there is no real remedy for this misconduct (how many people convicted of a crime can turn around and sue for the misconduct).

Here is the perfect example about the lack of internal disciplince. In Pasadena, the defense brought a Pithchess Motion (named after the case) trying to find out any prior complaints against the officer in a dope case (where the officer's credibility appeared to be the crucial issue). The Court ordered disclosure, and the Court of Appeal reversed, holding that evidence of the officers prior domestic violence against his wife and subsequent failure to report it was not discoverable. In other words, the defendant takes the stand, he gets all of his prior convictions against him read out in open court, the officer takes the stand and can beat his wife, and it doesn't come in. I'm quite sure that he was never prosecuted for this. A prior study by the LA Times showed that prosecutors almost never file domestic violence charges against police officers, no matter how strong the evidence. Of course, such a conviction is the end of their career, as they're never allowed to own firearms again.

This is what the Court said:

"Custodian of Records [in this case, the City of Pasadena] contends that Officer Llanes's failure to report a domestic violence assault against his wife has no bearing on weather he would lie about the rock cocaine sale on the witness stand and disclosure of the failure to report based on a domestic violence allegation constitutes a breach of privacy."

and later.....

"The matter here is of such a personal and private nature that Officer Llanes's failure to report it has no bearing whatsoever on his credibility."

Huh????

Read the whole opinion here.

Now the only thing I can think of is that either he was aware of domestic violence against his spouse, but that he didn't do it and didn't report it (who the hell could've done it in that case?), or he beat her more than 5 years ago and failed to report it less than 5 years ago. The more than 5 years being outside the period of Pitchess. Consider this, though. He can be impeached on stuff decades old (at least our clients can be), but we can't find out even if he has been convicted of murder more than 5 years ago under the only vehicle we have to find out his wrongdoing.

This is just another example of the idiotic lengths the courts and legislatures will do to ensure that people accused of crimes do not fight on a level playing field. It is also another example of the manner in which the Supreme Court is a now vehicle for the interests of the powerful against the weak. Such a change over the last half century. Maybe you think this is a proper manner in which the Supreme Court should act, but to you, I say that most of our greatness around the world, and the manner in which we are (or were) viewed as a light unto the world vis a vis civil rights, individual rights and restricting government wrongdoing has come at the hands of the Supreme Court over the last half century. I really hate ending that.

Additional Note - Don't worry, the Courts will ensure that this idiocy doesn't haunt them for too long, they made the opinion unpublished. This means that the case can never be cited, and will eventually waste away unknown into the future, so they write all the idiocy they want without any oversight.

Should Bush Go to Jail for Flag Desecration?

2006-06-21T11:03:00.000-07:00

This one is just too good to pass up. I've long hated this whole notion of laws banning the desecration of the flag, especially passing a constitutional amendment to protect the flag. In general, if the flag needs to be protected by curbing free speech, then that is desecrating the symbol more than any burning of an individual flag can do. Furthermore, what ever happened to private property? Aren't people allowed to do whatever they want with their private property (as long as it doesn't directly harm others)? But, lastly and most importantly, a law banning the desecration of the flag is thought crime, the most insidious type of law possible.

Hear me out. If I have a flag that is old and frayed, and I want to get rid of it, the preferred method (according to whatever US code they have on this subject) is to burn the flag in a proper ceremony (but to burn it nonetheless). So, if I burn a flag and say "I love this flag and all it symbolizes and the government in power right now," then I'm an exalted citizen of this country (a true American in the words of Sean Hannity). If I burn the flag and say "I hate Bush, I think this country is on the wrong track and is becoming a dictatorship," then I have committed a crime (probably so, according to Hannity). See the problem? The determination of whether you have committed a crime is not your actions, but your POLITICAL view while you do it (to be contrasted with typical mental state requirements that may gauge whether you are trying to harm someone - say the difference between a car accident and intentionally running someone down with your car). So, to stick with my parenthetical hypo, a law that says running someone down in your car because they are a Democrat is allowed, while running someone down in your car if they are a Republican is not allowed, would be a thought crime. That is a morally wrong law.

The US Code for the District of Columbia actually prescribes the manner in which you may treat a flag, saying that writing on it is a misdemeanor. So, how many Republicans think that President Bush should go to jail for this?

Of course, very few will say that he should, they will point out that the statute is only designed to prevent actual desecration, meaning the intentions of the perpetrator are key. But, what if this was John Kerry doing this? Wouldn't they scream and howl? Couldn't some right wing prosecutor fashion an argument that John Kerry should go to jail for this? Wouldn't a right wing jury be chomping at the bit to put him away for this? What if they charged and tried John Kerry for this in the most conservative southern state, in it's most conservative county, with a right wing jury, in front of a right wing judge? He'd be in jail now.

On the flip side, what if they tried George Bush for this in Berkeley, in front of a left wing judge with all left wing activists as jurors? Or, should he be impeached? This could be considered (under the very liberal standards set by the Congress in 1998) a high crime OR misdemeanor (is desecrating the flag worse than perjury?).

So you see, here in color, the idiocy of these laws. Maybe this will put paid to that stupid notion of passing a constitutional amendment that would restrict the 1st Amendment and carve out an area where you go to jail for having the "wrong" political beliefs.

"This is some nasty" - Another execution in Texas

2006-06-21T10:01:00.000-07:00

It is so ho-hum, another execution in Texas, that it barely merits mention in the news anymore. Lamont Reese was the latest person to walk through the Texas death chamber (although he actually refused to walk - he had to be carried in saying that he wasn't going to walk into his own murder).

He proclaimed he was innocent. Who knows if he was, I don't really know anything about his case and whether he was wrongfully convicted. I can assure you that his mother (who went wild at the execution, screaming and kicking holes in the wall while crying for her son) will insist to her dying day that he was innocent (as he did). I can also assure you that the family of the victim, as well as the police and prosecution will also insist to their dying day that he was guilty as sin, and is an inveterate liar.

But, death has become so routine in this country (especially in Texas, but clearly not as routine as many would like it to be), that this will go away without another thought. There will be no Innocence Project looking into this case. There will be no DNA testing of evidence (there was probably none in the first place). Years from now, no one is going to even think about this case, except those most intimately involved in it.

What is most interesting is that this case is probably like most other cases in which someone goes to death proclaiming in their innocence. Very little press attention is given, both sides insist they are right, the jury convicted the person, so he must be guilty, right? The case was probably predicated on the usual basis for conviction - eyewitness identificaction testimony (we know how unreliable that can be, don't we?), probably some statement he may or may not have given to the police, probably some corroborating evidence. In other words, just the kind of case that convict people everyday, both the guilty and the innocent (those were almost always present in the cases that have been reversed due to actual innocence proven from DNA over the last decade).

The reality is, that while the Innocence Project has freed well over a hundred murder convicts from death row, there are hundreds of thousands more sitting in our prisons, or thousands more sitting on our death rows, many of whom are guilty, but some of whom are innocent. They sit doing their time or awaiting their appointment with the death chamber, and frankly, no one even cares anymore. That is how mundane death has become. Innocent, guilty? Whatever, kill them and let God sort them out.

A Model for Prosecutors Everywhere

2006-06-16T11:16:00.000-07:00

In what can only be described as a prosecutor's dream scenario, a Court in China conducted the trial of a New York Times reporter from there who accurately predicted the changes in leadership of China. The trial took one day. The defendant was not allowed to have anyone at the trial to view it ("state secrets"), and the defense was denied the right to call a witness on his behalf.

I have previously considered the manner in which prosecutor and police groups in this country want to "speed up" justice in this country, and take away more and more rights of defendants here (unless, of course, those defendants happen to be right wingers, in which case they truly are innocent, and shouldn't even be charged in the first place, but if a jury does something crazy like convict, you can always depend on trial judges or appeals court justices to reverse that - consider in general Stacy Koon & Larry Powell, the Rodney King beaters, or Admiral Poindexter and Ollie North, the Iran-Contra folk, or the Rampart Officers in Los Angeles). There have been proposals for stripping people of their rights to a jury trial in misdemeanors, to allow non-unanimous jury verdicts, to curtail the rights of defendants to call witnesses at preliminary hearngs, to eliminate the exclusionary rule for illegally seized evidence, to allow juvenile convictions to be used in adult court (this has happened, BTW, even though juvis have no right to a jury trial), to allow wholesale hearsay at trials against people, and plenty of other things of the like. Why not just do things like they do in China and make things so much easier?

Well, maybe it's not so far off these days. Consider all of the things that have happened in the last few years. Immigrants can be plucked off the street for terrorism investigations, even without the slightest suspicion, held in custody for months or years on minor technical visa violations ("your form wasn't dated on page 3"), and then deported without any charges ever being filed, all because you're the wrong minority. Or, you can be plucked off the street in Montenegro, flown to Afghanistan and tortured there for 5 months, and then dropped off in your home country of Germany because, ooops, we got the wrong person ("well, he was ARAB, so he's not totally innocent!"). When you sue in the US for your kidnapping and torture, your case is thrown out because the US Government asserts that these are "state secrets" (remember those, China???). Or, we now have 4 justices on the Supreme Court who want to get rid of the exclusionary rule altogether, so that there is no sanction against police officers who bust down your door and treat you like crap anymore.

So, as you can see, maybe we should just adopt the China system and make it a lot easier. There will be no more illusions, we can call a spade a spade, and we can finally start to win that war on crime that we've been pussyfooting around for all this time. Then again, isn't there the parable about boiling the frog slowly rather than just putting it into boiling water.....?

Hilarious Website - How not to steal a Sidekick

2006-06-09T00:23:00.000-07:00

Seems as if this guy's girlfriend left her sidekick in a cab, and someone stole it. Unlike normal phones or PDAs, when you use a sidekick, the photos and information is uploaded to the server, which the subscriber can look at and even download to his computer. So, the guy downloaded them to his computer and now is publicly humiliating these people with their emails and instant messages to him, their photos they took on the sidekick, and their myspace pages that they reference. Now his site, in just a couple of days, is being looked at by hundreds of thousands of people, and the people who stole the thing are being mightly humliated.

I have to say, there is a strong place for shame over jail in our society as a means of dealing with petty crime. Vastly underused, far as I'm concerned. Of course, part of that may be that there is little shame left in society. But, having your whole story aired for the world to see can be more embarrassing than a simple rendition in court.

Listening in on Attorney Client conversations isn't just for Terrorists Anymore

2006-06-08T15:57:00.000-07:00

Something very sinister is happening in LA County. It hasn't gotten any press yet (that I know of), but either the Distict Attorney, Sheriffs or police are getting orders from some really dumb judges to allow surveillance of ALL conversations that inmates engage in, including, at times, conversations with their lawyers.

Evidently this became known when, in Pasadena, it was found out that the police were bugging the lockup area where attorneys would often talk with their clients. Evidently they did this in one instance where they put two co-defendants next to eachother (a husband and wife, from what I hear), and one defendant kept pleading with the other to take the rap. In the tapes turned over to the lawyers on the case, another lawyer was heard talking with his client in another room right next door.

Just about all of our conversations with our clients are "monitorable," meaning, the Police have the ability to record nearly everything we say to our clients. However, having the ability to do it and actually doing are totally different. It now appears as if they are abusing that quite frequently. It is unclear if they are monitoring phone calls to lawyers, video conferences to lawyers, meetings with lawyers in the jails (we have to use those stupid phones to talk to our clients). The sheriff's department just redid the men's central jail so that there are no more face to face visits, but everything goes through that thick glass and a phone - and thus can be easily monitored (the only people doing interviews in that area are lawyers).

I've long held the slippery slope belief about many of the erosions of our civil liberties, that you start doing it with the "really" bad folk, and then move on to the less bad folk, until you're doing it to everyone. This has been the case with the terrorism prosecutions, where they would only name people like Osama an enemy combatant, until they started doing it to people like Padilla, for whom there was little evidence of terrorist activity. In Israel, I've seen quite a few hard-right wingers pissed off at the manner in which the police disperse settlers from illegal settlements, they're too rough, the right wingers complain. These, of course, are the same people who complained that the soldiers should be rougher with Palestinian demonstrators (guess what, teach them to be rough with protesters, and they'll go after you soon enough).

Now, after all of this talk about listening in on lawyer/client communications in the case of terrorism, the local police have taken the baton and run with it - why not do it on our cases. After all, isn't vandalism a form of "domestic terrorism?"

What do we make of Moussoaui?

2006-05-18T16:08:00.000-07:00

I've learned that it's often wise to think for an extra moment before spouting off your opinion of something. Certainly in my line of work I have found that to be the case, as well as in life in general. The Moussoaui case is no exception.

Originally I was going to write what a huge verdict the jury came up with in that case, rejecting the death penalty when it was so clear that this evil blowhard had absolutely nothing to do with 9/11 (and probably knew nothing about it until he heard about it on the news after it happened). His idiotic testimony (the factual allegations, not his beliefs, which are pure evil) where he tried to place himself at the center of al Qaeda was simply ludicrous. That being said, I couldn't imagine that people would see past the emotion of 9/11 to vote for anything but death.

I was very surprised. And I was going to post about how incredible it was that a Virginia jury actually showed that kind of discipline to sentence someone as evil as him to Life without parole despite his lack of involvement 9/11. Then, I found out that only 1 juror actually voted for life vs. 11 who voted for death. Now, that's a very different story.

What I find most interesting at this point is the difference in Federal Law vs. California Law. In California, a hung jury in the penalty phase means that the prosecution, may, at their discretion (I've never heard of the Court preventing it) retry the penalty phase. Evidently, in the federal system, a hung jury in the penalty phase means an automatic sentence of Life without Parole.

That is a much more sane system. I think that they should do it here in California. Think about it, the only debate here, after a hung jury, is how much time the person spends in prison before dying. I've already written about the huge costs to the state to try and put someone to death. But, to go through the whole thing again (much evidence of guilt has to be put on in the subsequent penalty trial to give the jury the idea of what the person did, so the trial lasts a lot longer than the first penalty phase, but probably not as long as the original trial) just to ensure that the person dies in prison a few years earlier than they would if they died natural death - all the while spending hundreds of thousands more (on trial - it costs even more for the appeals), is absurd.

Why not just give the person an LWOP (life without parole) sentence? Is it really that important that they go to the gas chamber?

Even more interestingly in the case of Moussoaui was the reaction of so many families of the 9/11 victims. For many of them there was a sense of relief that Moussoaui was going to just disappear from the scene, likely never to be heard from again. He is going to have a bad life for the rest of his life, he'll probably be in solitary confinement without any meaningful contact with the outside world for 40 or more years, while he simply withers away. I have to think that this will be equally satisfying for most people.

I've often mentioned the hollowness that I sense from the families of victims after an execution, "the person didn't suffer enough," "it took too long," "this was too good for him," etc.... There wil be none of this, as Moussoaui simply disappears into the woodwork of history.

All the better, if you ask me. Do you really think that making him a martyr would've done anything positive for the world? Would it have made our society better? Would it have left our country looking more advanced than any of those countries we're trying to teach freedom to? Would it have engendered any more respect for us? Would people have really wanted to hear Moussoaui's final statement as he's being executed extolling his martyrdom? I don't think so.

Back from Hiatus, will post soon

2006-05-04T10:58:00.000-07:00

Don't ask me why, I just haven't posted in ages (3 months, I think). I'd love to tell you I've been exceptionally busy (I've been busy, but not too much so), or that I have had no inspirations (I've had some, but obviously nothing so burning it forced me to write). In general, I've just not been in the mood for writing of late. I think it's starting to change, and I have some thoughts I want to write about the Moussaoui trial, which I will post later.

I think that I've had to write some really big motions at work lately and have just burned out on writing for fun for a little while. It's starting to come back, though, don't worry.

The White House has Lost Emails?????

2006-02-02T20:50:00.000-08:00

I know regular readers of this blog will be surprised to know that I'm SHOCKED over the fact that the White House has apparently lost a whole batch of emails, directly related to L'affair Plame. Evidently, Libby's lawyers asked for a bunch of discovery, and then complained that Fitzgerald wasn't turning things over to them. Then Fitz replied - "the White House has [inexplicably] lost them." Alright, the whole quote is mine, and he may actually believe that.

But does anyone else really believe that these were just lost inadvertantly? The law states that any communications of this nature are not the property of the president in power, but of the national archives, who concede that this may have been lost due to inadvertance, but it doesn't seem so.

Is there a person alive who, honestly speaking, really thinks that these were lost just through "inadvertance," or that the Bush administration has the slightest degree of respect for a law which declares that their correspondence is not their own?

It's a good thing he hasn't received a blow job in the Oval Office yet, otherwise the Republicans in Congress may have to impeach him. Until then, he's safe.

Query, though, why this only made it onto the back pages of the LA Times?

Huge blogosphere blowout over 2 criminal law article series

2006-01-27T13:33:00.000-08:00

In case everyone has missed it, there have been 2 criminal justice related series in 2 different newspapers that have been just outrageous in the manner in which they explore the criminal justice system.

The San Jose Mercury News has written one thoroghly exhaustive series about the criminal justice system in San Jose which excoriates just about everyone in the system for failings that have led to serious injustices.

The St. Petersburg (FL) Times has written a 3 part series that I'm far less fond of where they follow around a baby Public Defender as he starts his career in the office. I'm less fond of this one because the PD in question is hardly a stellar example of PDs that we hire, in my office, at least. This one looked to the PDs office as a last resort, and said in his interview that he wanted the job because the prosecutors weren't hiring. Some of his co-workers are serious prosecution tools, who make it their business to please prosecutors wherever possible (just like our clients accuse us). The word I've heard from a PD from a nearby Florida county, and who used to work in that office in Tampa, is that the head PD is a pretty pathetic PD, pays his lawyers very little, is always looking for new people because they burn people out so quickly, and generally don't have very high standards of representation. Evidently the top person has surrounded himself with many former prosecutors as his fellow supervisors (not exactly an office full of people dedicated to the "mission").

This is diametrically opposed to the bulk of the PDs that I know. In my area, PD turnover is very low, people stay on the job for decades because it is highly fulfilling, and the jobs are highly coveted, with hundreds of applicants per position. Also, we are paid the same as prosecutors.

These articles have received extensive attention on several of the other public defender blogs, only a few of which I have actually perused up to now, but you can clearly find more starting with these (2 of which - Blonde Justice & Skelly Wright's Arbitrary & Capricious - are my favorites). Read Skelly's take here, and Blonde's take here. Also check out Tom McKenna's blog, Seeking Justice, and his post here. Political blog Transparent Grid (who also appears to work in the criminal justice field, but I haven't read enough of his stuff to find out exactly how) also has a post about the series. Finally, group that I haven't yet given a huge shoutout to (note the yet), the PD investigator (they can make or break your case) is represented on PD Investigator blog with a great post here.

All of these sites, and others of course, are really burning up over these 2 news series. Go read the series, read the commentaries, comment back here and elsewhere. I'm curious about all different views that come back, from fellow PDs, but equally from law enforcement, prosecutors (like Patterico, where are you commenting on this stuff, or have you already and I just didn't notice it) and all other members of society. What do you all think about the actual construction of law enforcement now that you have some details. Are you satisfied? Do you want it done differently? Whaddya think?