Sunday, September 28, 2014

Why can't prosecutors convict cops?

It drives me crazy!  You see the police do something that's just nakedly illegal, it's caught on video, it's morally and legally reprehensible.  And yet there are no charges brought, or if charges are brought they're undercharged.  And even when it goes to trial the case is somehow lost.

It constantly makes me ask "why can't prosecutors convict cops?!"

I've seen so many cases of botched prosecutions of police officers over the years it's begun to resemble a pattern to me.  The police circle the wagons (and even if the brass suggest the cop was dirty and they distance themselves from the dirty cop in question, the police union holds no such concern and will defend the officer no matter what, as will the willing lackeys in the press).

My first thought is that typical prosecutors are so in hock to the police that they're simply unable to bring quality prosecutions.  When you've spent your whole career justifying whatever police do, made all your connections and promotions through being a backer of police, and have your whole worldview centered around a police way of doing things, it's hard to step back from that and begin seeing how this process clouds you in the case of prosecuting police.

Here's an example of the differences between the way prosecutors and defense lawyers try a case.  The DA has a police report and treats it as gospel.  Sure there may be mistakes on it, but generally, it's the sign of a hard working police officer writing down his general thoughts about what happened on the day in question so posterity can take a look and use it to convict some bad guy.  However, to a defense lawyer, the police report is a treasure trove in little nuggets of missed information, misstatements, errors, omissions, and contradictions that we use to tie a police officer down to a particular account of what happened.  When we can show that their report is inconsistent with other objectively provable facts, we hammer the witnesses obvious bias in how they wrote a report that was clearly false.  And through this we win trial - lots of trials.  It's really central to our way of doing business.

So imagine that a defense lawyer was tasked with prosecuting a dirty cop in a case where they wrote a report about how they were under attack when they shot someone, only to have a video surface later that contradicts that report.  From the DA's perspective, they have an inconsistent statement, but DAs are used to proceeding as if the police report is generally a true rendition of the incident that happened.  They are far less likely to use that as the lynchpin of their prosecution of a cop.  However, us defense lawyers are used to using that false police report as the basis of our undermining of the police witness.  So while prosecutors start getting caught up in things like narrative, expert witnesses, use of force experts and other police officers who will (often reluctantly) be used to bring down their fellow officers - us defense lawyers would step outside of that completely and go after police the way we're used to going after them - with their own words.

I have rarely heard of stories of the police report which understates the level of force or overstates the level of resistance being use as the lynchpin of a prosecution case - it always boils down to expert witnesses for them, and other cops being called in to question the tactics.  Why not step completely out of that role and just go after these officers in particular?  When they try to bring in their use of force experts to show that the offices were acting correctly, it's a pretty simple cross examination - "sir, if the officers were acting correctly, and they knew it, then you would expect them to write a truthful and honest police report wouldn't you?"  And then you just hammer that witness with the police report.  Don't get down into the weeds with these pro-cop use of force experts, because these guys are always saying the same thing - police are justified in any use of force any time with any amount of violence if they are in "fear."  Well, rather than counter the reasonableness, counter the "fear" by showing they lied.

There's a lot of other stuff in there, and I'll come back to more of it later.  But to me, the basis of any prosecution against dirty cops must be the lies they told on their initial police reports that they wrote prior to the video of the incidents actually arising.

Sunday, September 07, 2014

Prop 36 - drugs and 3 strikes

I've written before on the fact that I consider propositions to be the scourge of California politics.  I still consider them to be so.

In general, I think propositions are WAY overused in California, and they've actually replaced effective governing instead by just going directly to a bunch of uninformed or misinformed voters with a fancily drawn title and promises to make the world a better place with one yes vote.  Voters in general tend to be pretty low information, it's bad enough when they vote for politicians they like or don't like based on 30 second ads, but at least those politicians have to actually report back to the voters with the things they've done every few years, but a proposition is a single vote that locks something into law forever without an ability to change it (most propositions are written in a way that require super-super majorities to make even the most minor changes.

I know there's no way to legislate this, but I believe that propositions should only exist in situations where there's a broad consensus to make the change throughout society but politicians otherwise refuse to deal with.  Those areas are pitifully few - Medical Marijuana comes to mind, Prop 13 and Prop 187 (respectively - the property tax initiative of 1978 and the illegal immigration initiative of 1994 which was largely ruled unconstitutional) possibly as well - even though I disagree vehemently with the last 2.

What's interesting is how there have been 2 propositions in the last generation which have gone far to reduce penalties for crime (I guess Medical Marijuana could be a 3rd), and both of them are Prop 36. In 2000, Prop 36 passed making drug treatment mandatory for certain drug offenders.  Mind you, the police still arrest people like crazy for drugs, prosecutors frequently over-charge sales cases to avoid the drug treatment regime, and plenty of people are still in prison for drugs, but the numbers have gone down dramatically over the last 14 years.  And crime has coincidentally (or not?) gone down as well.

The recent Prop 36 of 2012 codified the general practice of former LA District Attorney Steve Cooley, a Republican who also did not favor the abusive incarceration of low-level offenders for life under 3 strikes like his ostensibly liberal Democratic predecessor Gil Garcetti did. When Cooley came into office, he adopted a policy which mandated "2nd strike" sentences (or double the typical punishment but not life sentences) for most non-serious/non-violent 3rd strikers.  The effect of Cooley's policy was incredible.  Pre Cooley, LA filled the state prisons at an incredible rate with non-serious/non-violent offenders.  Since Cooley, those people received hefty prison sentences, but not life sentences.  Again, coincidentally (or not), crime continued to plummet in Los Angeles.

The final thing to say about Prop 36, it was mostly retroactive.  This means that most inmates serving life sentences for non-serious/non-violent offenses (i.e. - huge numbers of people in LA from the Garcetti era) could petition the Court for re-sentencing as "2nd strikers," meaning they got much shorter sentences and their life sentences were vacated.  It will probably shock no one that that the LA DA's office has fought most of those petitioners (there are over 1,000 from LA County alone).  Despite this, many have been released, this because they overwhelmingly came from the Garcetti era and hence had more than a decade of credit for time served, so their 2nd strike sentences meant immediate release (anyone surprised that the DA's office can agree with a certain policy, but just can't quite stomach the notion of actually letting people out of prison?).

And wouldn't you know it, the recidivism rate of these 40/50/60 year olds (and older) is VERY low!  Just like people argued when 3 strikes was passed back in 1994 - you imprison low-level offenders for life then you're really imprisoning many way beyond their crime years, and end up running an old-folks home for has-been criminals.  And the people who argued that were mostly right.

But it is fascinating that after all these anti-crime initiatives that have helped balloon California's prison population to the largest in the country and led to higher spending on prisons than Universities in California, we finally pass 2 common-sense ones here that have paid major dividends in the state, and both are called Prop 36!  Who would've known?

Of course, Californian's have a chance to go with another common-sense de-ratcheting of crime initiative this fall - Prop 47, which would reduce all drug possession crimes to misdemeanors. With the money saved going in large parts to our state's schools.  You'll never guess who's against it - that's right, the regular cast of characters who's livelihood depends on the criminal industrial complex.

Who cares?  Go Prop 47!!!!

Saturday, September 06, 2014

PD Dude - Back posting again?

Why post?  Why write?  How to keep it up? How to stay relevant?  How to write about things that are interesting to people who look at a specific type of blog and don't necessarily want to see someone pontificating on the rest of society's issues, even though those issues are of great interest to you and you think you have something to write about?  How to keep writing about what seems like a more and more narrow subject even though it's so full of interesting things on a day to day basis?

And most importantly, how to pick it up again after dropping it for so long without feeling like a fool, or artificial, or like you have nothing more important to say?

I started writing this blog more than a decade ago.  It was new, I was a a lot younger, I really loved doing it.  I wrote for a while, I got some nice feedback, I did it some more, and as much fun as it was, it became hard to keep it up.

So much has changed in the decade since I started writing this blog, and in the nearly 6 years or so since I last wrote for it.  I had someone keep up the activity for me for a while, an earnest and hard-working public defender from San Bernardino.  He wrote a bunch, I intended to collaborate with him and make the blog more vibrant, but I just simply dropped the ball, and the blog faded away.  In that time, the word "blog" has changed meaning dramatically.  So many webpages that were once "blogs" are now legitimate news sites.  Some of them get millions of hits per day and are read religiously by people - including myself.

I guess I spent so much time away from PD Dude that it became natural to not write on it anymore.  And I guess I haven't missed it that much, but I have missed it.  I sometimes see so many things happen and want to comment, and feel I don't have a forum.....

So, for now, I'm back.  I have a few things to talk about, and I'm going to talk about them.

Furthermore, I so frequently got good questions from people, I'm going to try and answer them more as well.  So feel free to ask a question or two, and I'll do my best to answer them here.

But, for my one tidbit today, and the thing that's really changed the most since I last posted nearly 6 years ago, I want to go back to something I wrote about years ago.  I noted on this blog more than 7 years ago that ex-Public Defenders tend to make really bad judges - or at least some of them do. But so much has changed in that time.

Arnold, when he was governor, appointed a bunch of Public Defenders to the bench.  For years the tradition had been that only District Attorneys were appointed to the bench.  It started with George Dukemeijian, continued with Pete Wilson (both law and order Republicans), and ironically got even worse with Democrat Gray Davis (the ultimate law and order panderer).  Arnold got better, and appointed several Public Defender's to the bench.  But now with Jerry Brown, he's been appointing huge numbers of PD's to the bench, and it's really starting to make a difference. It's slow, I know it, the number of old-school law and order DA's is still high, and the appellate courts are still filled with them, constantly writing "harmless error," to affirm any conviction.  But the Supreme Court is slowly changing, and I think that the lower courts will change as well.  They are becoming more human, they are becoming more diverse, like our state.  And there is a greater degree of empathy on the bench - both with victims and defendants.

It's not all better, mind you. The deck is so incredibly stacked against us PDs it's incredible.  But we have made some strides, and while it's not even, society is changing too.  They are less in favor of the death penalty, less in favor of 3 strikes, less in favor of putting drug users away, they have passed 2 proposition 36's (one for drugs one for 3 strikes).  I never thought it would happen when I started this blog, but the tide of anger and antipathy is slowly turning.  California has become a better place, and I'm so happy to be here to see it.

Anyways, I'll write back again soon with more comments on some of the things I've started to discuss above.  Perhaps there is hope for society!

Saturday, September 03, 2011

And You Thought You Had a Difficult Case.

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.


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

Thursday, September 01, 2011

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

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:

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

Thursday, August 25, 2011

Actually Innocent? We Don't Give a Damn.

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 Enjoy.

Dennis R. Wilkins
The New PD Dude

Wednesday, August 24, 2011

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

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:

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.

Monday, August 22, 2011

I was fooled

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

Saturday, July 17, 2010

Connect the Dots

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: 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: , and People v. Gastello - link here: 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

Wednesday, May 26, 2010

Further Reflections on the Marijuana Legalization Initiative in California

I posted in the wee hours (I couldn't sleep) about my beliefs about the coming marijuana legalization initiative on the November 2010 ballot. I haven't found the actual text of the initiative, or even the number just yet, but here is a link to a site called Ballotpedia, a website that seems to have a fair description of the initiative:

My post this morning generated a pretty cool response from a site called Legal Blog Watch. Here is the post: 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: 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 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