Monday, May 31, 2004

I found a new blog that I feel is worth reading. It appears to have a right wing bent (at least, their links are mostly right wing links, and I got them from a right wing site, but I haven't seen any overtly right wing screeds in their like some of my left wing screeds). Politics aside, they have good information on different legal happenings down here in Southern California, and they are worth a look. The blog is called SoCalLawBlog, and they're a good resource.

One of the cases that they've talked about is the Haidl rape trial. For those of you who don't know about the Haidl case, go to their list of coverage, or read on for a very short synopsis. The details are not of as great an interest to me as some of the things that have gone on legally.

Essentially, 3 upscale suburban boys (they were all under 18 when this happened), including the son of one of the top people in the Orange County Sheriff's Department, videotaped themselves having sex with a girl (also under 18) who appeared to be asleep or unconscious. They had sex with her, and they also put objects into her body such as pool cues and things of the like. I don't intend to tittilate, so I'm not going into too many details. Read the articles for more information if you like.

The case is in trial right now, and the defense lawyers have been hammering away at the credibility of the girl, claiming that she had given consent for the boys to do this, that she faked unconsciousness, that she had had sex with them on numerous previous occasions, and that this type of activity was typical for them. Fair enough.

But, I have to say, I think that at times, the lawyers have gone too far.

Remember, we are advocates for our clients, but not necessarily for their actions, or against their accusers. There is a fine line that we have to walk in advocating for our clients, and I wince when I hear people go beyond the line. What is the line? Not totally clear, but I heard some of the press conference by the defense lawyer who has been all over the papers, and what I heard made me upset. He called the girl a manipulative little liar (perhaps fair enough, remember, you can comment on the evidence without becoming a party to this whole thing), and said that it was clear she had poor morals. There were comments about her sexual activity, and how that reflected poorly on her.

Let's be clear, this case is not about sex, it is about forcing yourself on an unwilling participant. To the extent that sex is what you are forcing, clearly the prior sexual relations between the victim and defendants are relevant. Perhaps even her prior sexual relations between her and others are relevant as well (although not legally relevant, thanks to the rape shield laws, more on that stuff in another post). But to call into question her morals? This lawyer is representing people who video'd themselves having sex with someone who, at the very least, pretended to be uncounscious. They put objects into her body, they had group sex with her, they are in no position to preach morality. Their lawyer should know better and not do that either.

What he did, in effect, was to take a position in contradiction to his client's position. His client could never get up and scream "she's an immoral liar!" Not because it's illegal, or impossible, but because he would be rightfully villified for doing so. I don't believe a lawyer should become a mouthpiece for someone to say what that person would never have the guts to say. This is what happens in politics, where politicians don't want to be seen as negative, so they have their attack dogs go out and make the negative, venal comments, while they remain "above the fray." The day that lawyers, in zealously representing their clients, go about doing the same thing is the day we cease to be a representative of the party, but a party to the action as well.

Go ahead and say she's lying, point out her inconsistencies, show bad things she may have done, but don't become a sermonizer on the virtues of the people you are in litigation against.

Monday, May 24, 2004

In California, the prison industry is the fastest growing industry around. In fact, if you want to talk about pure political muscle, there is no lobby quite as strong as the prison lobby. Consider what the prison guard's union has helped to accomplish in the last 20 years. They have increased tenfold the number of inmates in prison, they have increased exponentially the number of prisons, they have backed numerous draconian laws to ensure that more and more people go to prison for longer and longer for doing less and less.

Plenty of you have seen me write about people facing absurd amounts of time for relatively minor offenses, based in part on things they did when they were 16 years old, or things that happened 25 years ago. Now they face life for possession of a rock of cocaine.

The prison union has done more than that, though. They have also leaned on politicians to ensure that only district attorneys are appointed as judges. In the administrations of Governors Duekmeijian and Wilson (16 years total from 1982-1998), and even Gray Davis, judges were overwhelming chosen from the District Attorney's office. Thus, the judiciary is filled with law enforcement, with an agenda of putting away as many people as possible, no matter how much we have to subvert the laws to do it.

In 1986, bankrolled by business interests, three members of the California Supreme Court were removed from office. The reason that got everyone upset - they were battered relentlessly for being opposed to the death penalty and reversing so many death sentences. Mind you, in the 18 years since then, only 5 people have been executed in California, so it doesn't look like they played that much of a role, and exactly how much better off are we now that 5 people (out of a death row approaching 700) have been executed? But, the irony is that the crime issue was only a pretext (sort of like focusing on weapons of mass destruction), the real moneyed interests behind that recall (actually it was a vote against their confirmation) were business interests that were trying to make California a less pleasant place to sue from.

Regardless of who wanted them out more, both sides succeeded with the recall, and ensured that California's judiciary would become much more responsive to the two right wing lobbies in California - Crime and business.

The effect on Criminal law has been dramatic. Through the tyranny of a doctrine known as "harmless error," the California Courts have managed to uphold a startlingly high amount of death senteces, no matter how flawed (the Federal Courts of Appeal in the 9th Circuit has been reversing these rulings an equally startling rate recently). The main thrust of every opinion is this: sure he didn't get a fair trial, and his statement shouldn't have come in as evidence, and the DA shouldn't have been able to bring out the fact that he likes pornography, and the police did do an illegal search, and the defense lawyer was prevented from cross-examining the witnesses, and wholesale hearsay was allowed in without a proper ability to confront it, but hey, we know he's guilty, and those errors were harmless, now let's kill him already.

Courts of Appeal do the same thing, upholding verdicts that are clearly wrong as a matter of fact and law just to ensure that people do not get out of jail. Then they don't publish their decisions, so they never really have to be scrutinized. Or the Supreme Court will depublish (literally wipe it's precedential value off the books as if it never happened, although the decision itself still stands).

We now have a judiciary that makes Mississippi's look like Earl Warren. California used to be a shining light of example for the rest of the country, now we're sneered at. Courts in states like Mississippi, Alabama, Texas, Florida, Georgia, and other deep south states used to affirm an abnormally high rate of death sentences, something like 60-70%. California's affirmance rate is in the high 90s.

And so much of this is thanks to the prison guard's union (I'm sure any right wing readers will be dusting off their checkbooks at this point to mail a donation to this union - don't bother, they're doing just fine looting the treasury instead).

In fact, an article today in the LA Times details to what extent the prison guard's union runs this state's prnal system. They choose wardens, they get paid so much money that no one wants to become a supervisor - they have to leave the guard's union and they make less money). They get so much sick time they don't know what to do with it, and now they no longer need doctor's notes when they are suspected of abusing it. Overtime costs have skyrocketed, their pay keeps going up higher than any other public employee, and if they are asked to work a shift due to someone else calling in sick, they get paid overtime, even if they have called in sick themselves.

It is a total scam, and yet, I am more scared of them than I am of anyone else, because if, God forbid, I ever got into their sights as someone they wanted to get, they could get me. Have me put into prison for some trumped up reason, and they can guarantee that you never walk out alive. Their power makes Abu Ghraib look tame by comparison.

All because politicians love to pose for pictures next to cops and claim to be "tough on crime."

Wednesday, May 19, 2004

Court Martial Conspiracy Take II

Well, I thought it would happen, and it did. The first US Serviceman to be charged with a court martial has pled guilty and received the full punishment to what he was charged with. Clearly, though, he was charged in a manner that did not present a much longer sentence that he could have received if he had the book thrown at him. Why?

Well, I think it's obvious that the army wanted to flip him so that he would testify against the others. But, this person is an interesting choice of people to flip. Apparently, he didn't work in that module where these incidents took place, and he was invited in for one night's worth of incidents. He will testify about those incidents, but apparently he knows nothing about orders from higher up or things of the like.

If you were the Pentagon and wanted to sweep this under the rug, all the while looking like you were vigorously attacking the problem, you would probably act in the following manner: Charge one person who was a percipient witness to the violence depicted in the photos (for which there is irrefutable, and public, proof at this point); have a very public trial of this person where he receives the maximum possible sentence (under very reduced charges in the first place); Use him to throw the book at everyone else, but only related to charges from the night that this one person was a witness, with an understanding that in return for only facing charges related to this one night, they will not point the fingers at specific higher ups, and will not put Pentagon brass on trial for their policies that made these activities the rule, rather than the exception.

Now, maybe I'm wrong, but in listening to reports from this trial, where the defendant admits to conduct on ONE NIGHT ONLY, it suggests that any allegations of other incidents, of policies suggesting this activity, or knowledge of higher-ups, will be brutally supressed in the absence of any physical (ie - photographic) proof to the contrary. Realize this, if pictures had not surfaced of these incidents, the Pentagon would still be stonewalling these allegations like they did to the Red Cross for many months when the Red Cross brought up these allegations prior to photos surfacing. The photos made further blanket denials impossible, now it's time for damage control, they want to keep a lid on this by making it seem as small and isolated as possible.

Who knows, maybe I'm wrong about the strategy, but the previous stonewalling of the Red Cross is clear (after the Red Cross made allegations in November, US officials in Iraq responded by ending drop in visits by the Red Cross - not exactly the mark of innocence on their part). Since the Pentagon's position seems to be everything not on camera is bullshit, I can see how they want to limit all allegations to exactly what's on film, and nothing more.

Friday, May 14, 2004

Cool Blogs

A rather pedestrian email from a frieng about a Guantanamo and Abu Ghraib led me to run across these three blogs. I think that they're just great legal theory blogs. They bring me back to my days in law school where we would argue legal theories for hours on end, over the most arcane of issues. I have to say, I do miss those days a little. I find in my job, these issues still resonate for me. They are thick with details, but worth a read.

Legal Theory Blog blog is done by my Civil Procedure professor from my first year in Law School. I still remember sitting in that class and thinking how much like the Paper Chase the class seemed. More than any professor, he inspired fear and awe due to his incredible intelligence, and his seemingly aloof professorial ways (he was actually a very cool guy, but in your first year, you are more scared than anything else. I don't get awed by authority anymore, be they professors or judges, but starting out, you can feel so small).

Enjoy the blogs, and be prepared to sit and read for hours if you're interested, or close them EXTREMELY quickly if not.

The Volokh Conspiracy
Legal Theory Blog
Balkinization Blog

Wednesday, May 12, 2004

Serendipity Now!

Well, I'm getting geared up for jury selection this morning, thinking about what questions I can possibly ask these jurors that will bring the slightest bit of reasonable doubt into their minds - doubt, I might add, that will quickly dissipate once the case starts. Then, what should happen, but the DA calls and lets me know that her witness that she is flying in from out of state missed his flight (apparently we're not dealing with a person who flies very frequently, if at all), got lost going to the airport, freaked out about what to do, and called the DA asking to be put on another flight the next day.

Far as I'm aware, he's still coming, just a day late (and no dollars short). However, this is the kind of wrinkle that makes the DA think a little, and she thought about it and gave my guy a new offer - 7 years. This is still hard for him to swallow, in that he has to serve 85%, and his original offer of 5 years was at 50%, but it's a helluva lot better than the previous offer of 12, and certainly better than the 30 he'd probably get after trial.

Believe it or not, he rejected it at first, but when the Judge asked him what he wanted to do, he said he'd take it.

I really can't believe this guy lucked out the way he did, he certainly didn't deserve it, but he played Russian Roulette, and didn't die (although he didn't do necessarily well). Let's just say that rather than dodging the bullett, it grazed him and gave him a flesh wound.

Tuesday, May 11, 2004

Really Dumb Clients, Part II

Well, dumb client of mine who turned down the 5 years to go pro per (represent himself), only to get me back with a 12 year offer? He's back in action. Today the trial started, the DA has to fly someone in from another state to make the case, and she made it clear, if the case goes beyond today, and he doesn't take the 12, then there's no deal. I sat with him for what seemed an eternity, telling him (Rocco style and every other way I could imagine), that he had to take the deal. My co-counsel (for the co-Defendant) even said he was crazy for not taking the deal, he didn't care. "Too much time," he said. Well, I said, it's a helluva lot less than the 26 year minimum that you face if you go down at trial. He doesn't care.

We're picking the jury tomorrow, but I can assure you, he'll be begging for 12 come a day from now, and that train, too, will have left the station. If he gets convicted and gets 20 plus years, I'm going to ask that all of his time be done in county jail (that would never happen, but this is tongue in cheek for those of you unfamiliar with the system), and whenever I get a knucklehead client again, I'll have them moved to this guys cell so they can get a little lesson in reality.

Oh well, I'll let you all know what it's happening. Wish me, er, him, luck.

Monday, May 10, 2004

Court Martial Conspiracy?

I am not a conspiracy believer, but I have my thoughts about this court martial about to take place in Baghdad later this month.

First of all, one news report I heard suggested that the immediacy of the court martial that is about to take place suggests a deal may have taken place even before the court martial begins, and he may cooperate against other suspects. I wasn't sure, since I'm no expert on military law (by any stretch of the imagination), but consider this. The soldier involved is being charged with a series of offenses that only carry a one year maximum sentence, pretty small-time for the offenses alleged (I mean, here in California, you can get 25 to life for possession of a little rock of cocaine or passing a bad check). Furthermore, army personnel face longer sentences for things like sodomy, or audultry. How could dishonering the US, violating the Geneva Conventions, assaulting and possibly helping to murder prisoners of war, and damaging our credibility throughout the world be worth at most a year in jail?

Well, here's how. I'm guessing that they are going to have this one trial as a show trial, to show the world that they are serious about stopping this stuff. They will have it quickly and openly, which will tell the world that we are busting these guy's heads. But, we are only doing it to this one person, who is in effect turning state's evidence and would have received whatever sentence he's going to receive anyways, meaning, a plea bargain. In return, he gives a huge mea culpa in front of the trial, on a world stage in front of all Arab media, and then they have all of the rest of the trials in private. This way, they can do everything else the way they would've anyways, but have one person fall on his sword for the whole enterprise.

It is actually a shrewd idea, since it allows us to bring someone's head out on a platter to the assembled foreign media immediately (some head, one year maximum???), while shielding the rest of the trials from the scrutiny that this trial will have. If it works, ingenious. If not, it could be disasterous. Look, though, to have this soldier, while implicating himself and others, to shy away from every saying anything aloud that goes higher than local mid-level commanders. Anything that goes too high gets uncomfortably close to the commander in chief, and we can't have him responsible for anything, can we?

Sunday, May 09, 2004

Is there a person in the world who believes that, absent photos, the present US government would have ever acknowledged the abuse of Iraqi prisoners of war? This, after all, is an administration so dedicated to the principle of loyalty to regime, that anyone who dares say something against the administration faces a full court press of hostile, and often untrue, allegations against them. Shall I go through the partial list? Richard Clarke, James Wilson/Valerie Plame, Paul O'Neil. The list is relatively short right now, but just wait until Rumsfeld gets fired and decides it's time to spill the beans (then again, he probably won't spill the beans because he's a true believer, which means he probably won't get fired).

Where does this abuse come from? Is there really any doubt? This is the administration who has made argument after argument that the Geneva Convention does not apply to just about every person they have captured in Afghanistan. This is an administration who has created a jail in no man's land - Guantanamo Bay - so as to evade any national or international scrutiny of it's actions. This administration has come up with legal fictions so as to arrest, detain, and permanently imprison US citizens without having to every justify it to a court or other neutral body. In short, this administration has little respect for the laws or traditions which separate our country from the terrorists who would wish harm upon us. Is there any surprise that, after years of arguing that laws don't apply to it (this administration not only refused to recognize the jurisdiction of the International Court of Justice, they threatened to cut off any military ties with any country which did not promise to forever grant immunity to all US soldiers regardless of their actions), a prisoner of war abuse scandal like none ever seen in this country has erupted under this administration?

This administration has debased not only our culture, our society, and our political system, it has debased our traditions, and our position in the world as a shining beacon. Wake up everyone - the whole world hates us right now, because, with the best of intentions, we have proceeded to shred just about every international institution and accepted practice. Well, two things - 1) the road to hell is paved with the best of intentions (better to be smart), and 2) if you are going to bypass everything that WE worked our butts off building over the last 60 years, you had better do it absolutely perfectly, ie, don't do evil things while acting Machievellian.

This administration has utterly failed. I see polls that suggest that 80% of Republicans believe that the war in Iraq is going well. This underscores a larger problem - people only listen to the news they like to hear (this is a problem, I believe, because this is exactly what got us into this mess with President Bush - he only listened to advisors who told him things he liked to hear. Couple that with a refusal to read newspapers, you have him doing exactly what his father refused to do with the results his father feared most). Republicans can continue to listen to idiots like Sean Hannity, who equates tyranny and terrorism with liberalism, for their news. But, I fear, it will result in a further debasing of that which we have fought so hard to achieve over the last 200 years.

I know conservatives will say I hate America. But, this is because they listen to idiots like Hannity and Rush Limbaugh, who can only say that in response to legitemate criticism. All I have to say, I hate their vision of America, because it is only more of the same we have seen in Abu Ghraib.

God help us all.

Wednesday, May 05, 2004

Defending DAs?????

I never imagined that, in writing a blog on being a public defender, I would feel the need to defend DAs. But, believe it or not, here goes.

Since just about every DA is an elected position (federal is different, but they're appointed by the president, so same thing), they are inherently political. Furthermore, as the DA's office is (at least in California), the road to the judiciary (if you want to be appointed by the governor), you have to make sure you don't show yourself to be a wimp if you want to be a judge some day. Politically speaking, no one I can think of has ever been turned out of office, except perhaps in San Francisco, for being too tough on crime. Especially for a law enforcement job. This does not mean that people with strong law enforcement credentials can't run campaigns which have elements of realism in them - such as not being too tough on 3 strikes, or pushing rehabilitation. But, for the most part, being "tough" pays.

For a DA's office, this means that the top person's main concern is losing his next election by being outflanked in the toughness department by his next opponant. If certain deputies are offering too low a sentence on a case, or don't win enough cases, or don't file cases with every possible crime and enhancement pled, then that is fodder for a future political campaign. If someone gets out of jail after receiving a light sentence and kills someone else, or gets out of jail after a prosecutor agrees to them being released OR, then this will be brought up by the DA's next election opponent. Just about everything can be spun to look bad, as George Bush has shown, trying to discuss nuanced subjects doesn't work in a 30 second political commercial, so DA's make policies that are not easily subjected to 30 second ridicule.

This pervades the whole office, and sets up a general tenor of the office.

However, this does not mean that every DA is evil. Just because they work for an office that frequently cannot recognize humanity, many individuals have a great sense of humanity, or even if they are tough, they are very fair. They can be very trustworthy, honorable, fair, and not vindictive. A large amount of the individual DAs are like this. Some are not afraid of political payback for doing what they feel is right, even if it bucks the office, some want their actions to be kept quiet, some make backroom deals that allow them to look good on the record (this means that they have to make the judges be the bad guys and do things that they want to happen but don't have the guts to do).

Examples: A DA thinks that a defendant should not get 25 to life for possession of a gun, but his office says that the person should get that sentence. The DA tells me that we could go to a court where the Judge would probably not give that sentence, and tells me that I'm free to approach the judge and tell him this, asking if he'll give a non-life sentence to the defendant. The judge says he'll cooperate, and so the DA and I quiety manipulate to get the case to that judge, and the DA tells the judge that this is what he wants to happen. The judge, however, is forced to do this on the record, so that if, 10 years from now (when the Defendant gets out), he kills someone with a gun, the judge will be the one to take the hit on it in the papers. Ultimately, while I wish the DA would have had more guts to do what was right out in the open, I also recognize that had he done so, he may not be around long enough to do so again.

Another one: A DA gets a case assigned to her from the "Calendar" DA (meaning, the DA who is in charge of all cases out of that court). The calendar DA is a rabid, out of control frothing at the mouth type. The DA who gets the case is the opposite, reasonable, easy to get along with, and very fair. She purposefully has me put the case over to a date that she knows he won't be there, and approaches another DA about getting an offer on the case, and gives the Defendant a very good and fair offer that he never would've received if the calendar DA had handled the case. In fact, a friend of mine had a very similar case with the rabid DA, and his client got a 10 year longer sentence than my client did.

Last one: I had a case which was a profile case of a mother abusing her child. Case got onto TV because the cops publicized it for some absurd reason. Of course, the case was never as bad as the cops said it was, and far more nuanced than they suggested. She wasn't innocent, but she wasn't as evil as they considered. The DA told me that he thought the case was worth up to a year. He tried to get this done quickly and quiety so that wouldn't hear about it and go ballistic, but through some wierd thing, they actually heard about, went ballistic, and tried to scuttle the deal. They went almost all the way to the top of the DA's office, threatening that they had gone to the police before, and they would go again. They wanted life (she only faced 6 years max, so they were wacked anyway), and they were going to do everything they could to make that happen. The DA, however, stuck his ground. The case was worth 1 year, he had handled many of them, and the fact that they were going to the press to turn it into a federal case wasn't going to make him back down on what he thought was right. Suffice it to say, he will never be a top person in the DA's office, and perhaps never a judge, but he's a really honest person, and would be the best thing the judiciary could get.

In other words, there are quite a few very fair DAs out there, people I like and respect, who may put people away for a living (something I never could do without complete discretion to handle each case however I wanted, including dismissing all victimless crimes like drugs and prostitution), but who realize the meaning of fairness. They aren't out for blood, they aren't there to make a name for themselves, they don't get joy out of putting people in jail. They are just decent people doing a job the best way they can. Unfortunately, they have to fight to do this, and they risk their careers to do this. This is why they are the exception rather than the rule.

I often think that I would love to have people like this come over to our side, work in our office. I think: "these are cool people, good lawyers, have experience with the DA's office (so they could give us all their tricks and tell us all the things DA's have up their sleaves, as if we didn't already know), and would be a coup if we could steal them away." However, upon further reflection, I think it's best that they stay in the DA's office and remain a nice counterbalance to the nuts that frequently pervade that office.

There are quite a few good ones, though. And they should not go unappreciated or unremarked upon.

Saturday, May 01, 2004

Someone, and I don't know who (but I thank that person nonetheless), has submitted my site to the Political Site of the Week Political Site of the Day - Some of the best, most interesting sites daily

Thank you to whoever did this, I can only guess that it's because I wrote about enemy combatants and Guantanamo Bay. Stop by Site of the Week if you have a chance. I checked it out a little and the site is really good.