Tuesday, June 28, 2005

Idiotic Gang Experts/Allegations

I've written before about how idiotic I find cop "expert" opinions frequently are. I basically feel that these are political positions masquerading as some kind of strong science. Police and prosecutors put up these silly opinions all the time to "educate" the jury about certain crimes. As the crimes have become more plentiful, and as the level of activity that will allow you to be considered violating that crime increases, and as the number of silly enhancements have increased, so have the number of times in which police officer "opinion" testimony comes in.

Let me give you a little hint - police officer opinion testimony is always that the person charged is guilty - their opinion as to some area of their "expertise" will always conform with that opinion, always, no matter what the circumstances.

Someone has a single joint - could be possessed for sale. The police saw him smoking it? Still could be possessed for sale. He said he wasn't selling? Drug dealers frequently lie, he still could be possessing for sale. They didn't see him do anything consistent with selling? Drug dealers are cagey people, he still could be possessing it for sale, and therefore, the officer still has that opinion, and the jury hears a "respected" member of law enforcement give them the opinion as to the ultimate issue in that case, whether it was possessed for sale, that is almost impossible to disprove (how do you disprove a negative?).

But in the area of gangs it has become even more absurd. Proposition 21, the "Juvenile Justice" bill (put in quotes here because much of the law it changed had nothing to do with juvenile law), made any crime committed for the purpose of a gang a strike. Paint your nickname on a wall, not only did it just turn into a felony (as long as someone can say it costs $400 to paint over), but it is also a strike. Pick up any new petty theft the future and you may get 25 to life (if you painted 2 walls, that is, and got 2 strikes). It gets even worse, though. When giving their testimony about gangs, police are able to bring in any unfavorable character evidence against the defendant that they want, and not just against the defendant, but also against any of his friends, family, acquaintances, etc (they may all be in the gang, after all).

So now, just about any innocuous offense can be alleged to be committed "for the benefit of the gang," no matter how non-gang related it really is. Have a gun? Possessed for the gang. Have some drugs? Possessed for the gang. Write a bad check? Did it for the gang. Slap your wife? Did it for the gang. Rob a bank? Did it for the gang.

And now, no matter how weak a case is against any particular defendant, even if the person is really innocent, the jury will hear all of this terrible character evidence - much of it not even related to the particular defendant but to his acquaintances, that will prejudice them against him even further, working to prevent him from getting a fair trial on the particular facts of the case.

And worse of all, the DA now won't dismiss these idiotic gang allegations once filed. So, even if you have someone who is guilty of possessing that gun, or having a couple of joints, or writing that bad check, or scratching their name into the bus bench, they must now plead to a strike to resolve their case or go to trial and face the mountain of bad character evidence that will be introduced against them, all ensuring that no jury will ever give them a fair shot.

This is the daily level of idiocy from police and prosecutors we have to deal with. I'm not saying my clients are angels, believe you me. But, they deserve a fair shot in life without having a pre-paved highway to life in prison being set out before them by the time they're 18 years old. Give these people a shot, because, believe me, if you don't give people a shot, they will be far more likely to take one at you.

Thursday, June 23, 2005

Did Prosecutorial Hubris Lose the Jackson Case?

I've been reflecting on how it was that the prosecution managed to lose a molestation case where some members of the jury said they believed that Jackson had probably molested in the past, but they couldn't prove it in this instance. Also, how they lost a case where the whole world looked at the defendant as a weirdo molester, and yet they couldn't get a conviction. For any regular practitioner in criminal law, both of these scenarios seem unbelievable, either one would almost automatically result in a conviction. Clearly, race had nothing to do with it, and celebrity cannot explain all, either. Unequal resources probably didn't do it.

What did do it?

I have a few thoughts on what the prosecution did in this case, and what the biggest mistake prosecutors tend to make that allow defense attorneys to win more cases than they probably should. I don't think that these are secrets, and I can't imagine that any prosecutor reading this post who otherwise disagrees with this notion is going to change based on my post, and that any prosecutor who agrees with my basic ideas will be hearing anything new based on what I'm saying.

I think that a prosecution that is tight and focused is the best kind of a prosecution. If you have 15 potential charges against someone, but 10 of them are weak, charging only the remaining 5 would be the best course of action. Obviously, this leaves the defense open to questioning to the jury "why haven't they charged all of this other stuff if it's there," but this may not even make it into the jury's mind. In the Jackson case, the basic charge that was going on here was the alleged molestation of the kid by Jackson. These 3 counts alone would have subjected Jackson to 24 years in state prison (maybe one of them was an attempt, and would have only subjected him to 20 years instead). Why would they bother to go after these idiotic conspiracy charges, or the allegations of giving him drinks, when they had the basic charges that they could file that would give him the most amount of time. By not thinking strategically - give up the extra few years and get him on the major charge that can keep him in prison for double digit time - the DA weakened their case with less provable charges.

Why would the DA do this? Part of the reason has to be the obvious vendetta that Sneddon had against Jackson based on Jackson buying his way out of the previous case a decade earlier. Sneddon obviously had it in for Jackson since then, something that Jackson probably exacerbated by writing a song mocking or criticizing Sneddon. The other reasons I can only make a guesstimate for: Sneddon wanted to throw the kitchen sink at Jackson to bolster the case (I think it usually undermines it), Sneddon wanted look extra tough in the public eye, for the international audience, Sneddon wanted to prejudice the potential jury pool and public opinion against Jackson, or most likely, Sneddon believed everything the family said to him hook line and sinker. Another probability is that once filed, Sneddon felt he couldn't dismiss any of the charges against Jackson without looking really weak when he began to find out the some of the allegations against the kid's mother. Again, much of this is his fault, by pursuing the case in the grand jury instead of through a preliminary hearing, he sped the case up, and he prevented the defense from having a free shot at his witnesses, but he also gave up a great opportunity to see what the defense was thinking based on the way that they fought the prelim. He could've listened to the cross examination of the mother that would've taken place, realized that she was damaged goods, and quietly (as quietly as possible, that is) gotten rid of those charges.

What would've been the result of this, had he proceeded only on the molestation? To begin with, Sneddon could've gone to trial with just a couple of witnesses - just the kid, for instance, and the cops who interviewed him, as well as that supposedly damaging video of him reporting the crime. What would the defense do then? Without the conspiracy charge, the mother and family would probably not be relevant witnesses. Even if they were, the defense would have to put them up in order to elicit damaging information about what grifters they were. But, this is a different beast entirely than trashing a prosecution witness. The defense would be calling a generally bad witness to get a few kernels of good information out. They would not be able to lead the witness until the judge made a finding that they were being uncooperative, perhaps not at all (didn't some commentators say that Mesereau's cross was some of the most devastating cross they had ever seen?). Imagine if the mother was the defense's witness, and the prosecution was able to lead her through all of the stuff they wanted her to say? They could only bring out the few good things, since they didn't need to rely on her for any of the conspiracy charges, so they could've discarded all of that wacky scenario that she brought up about being abducted and held prisoner - something no juror appeared to ever seriously consider.

I could only imagine what a 10 witness, 5 day case would've looked like here. The DA calls the kid, his brother perhaps, and just a couple of the witnesses to prior bad acts. The DA brings out how he bought his way out of other case (or not, perhaps this raised the specter too much of a shakedown in this case). Call a couple of cops about his general wackiness and things that he said about being roughed up by the police, and how the wits statements to the jury were similar to what they said to the police, and then rest.

The problem is, especially in high profile cases, DAs tend to fear undertrying their cases. One of the most devastating DAs that I know of is one who has done more jury trials than any DA in California, over 600. His cases are short, to the point, and leave out all of the fluff. He'll dismiss all weak or tough to prove charges before trial, and focus on the meat of the case. He also is a phenomenal trial lawyer and gives a great closing argument. He thinks creatively and strategically, not only about what he can prove, but what the result will be if he puts up too much evidence.

I have found that the most creative and best thinkers are defense lawyers. In general I believe this because I think that the defense side attracts people who are more creative, who are freer thinkers, who are less authoritarian and don't think of things in a top-down manner as is more common in law enforcement, military, or other stricter and more hierarchical organizations. Defense lawyers tend to be more individualistic, contrarian and non-conformist, so they don't get caught as easily thinking inside the box. These are visceral feelings on my part, not well formed or documented, but consistent with what I have seen over my years of practice. The best DAs are the ones who are able to think outside the box well, who anticipate several moves away, and who don't get trapped into believing their own case too much. More than anything, though, defense lawyers are used to making mountain out of a molehill, since that is what we so frequently are given to work with. DAs usually have the deck stacked so much in their favor (at least here in California), that they are rarely forced to work in the manner that defense lawyers are.

I think that Sneddon made a large mistake in being too believing in the family, especially the mother. If he didn't believe her, why would he proceed on the counts that were predicated on her testimony, and which required her to even hit the stand. If he did believe her, it probably owes more to the hubris consistent with so many California DAs who are used to winning just about all of their cases, and who work with a missionary zeal and belief in the justness of their cause, regardless of the glaring weaknesses that shout out at them. Failure to notice these weaknesses and deal with the case accordingly may very well have caused him to lose this case.

Tuesday, June 21, 2005

How was Killen convicted of Manslaughter`

I spend half of my murder trials thinking of ways to get a manslaughter out of a murder (this includes offers to plead to manslaughter, often to the maximum of over 20 years). Most often, these attempts fail. So, I'm wondering, and perhaps someone can tell me, how did Killen get a voluntary manslaughter out of his particular set of facts (I understand, by the way, that just about any prison sentence is probably a life sentence for him, and that as compromises go, his is not particularly helpful, but still, you never know what may happen down the road to let him out at some point, or what a judge may do with a manslaughter conviction coupled with his age - he may not get the rest of his life in prison after all)?

Let's see, if I recall the case correctly (admittedly, most of my facts come from reading recent newspaper accounts, accounts from classes I took in college, and sadly, the movie Mississippi Burning), the local Klan stopped these three guys on the road and lynched them, then buried the bodies. Did the defense put up a defense of "heat of passion," that somehow the local Klan was so inflamed by federal interference into their local customs that this amounted to a heat of passion? If so, how does that square with his defense that he wasn't there that day? Did they put up a defense of "I wasn't there, but if I was I was acting under extreme heat of passion?" I had always considered those to be losing arguments, and had counseled my clients to pick one - heat of passion/self-defense or alibi, but not both. Maybe I need to reconsider.

Or, maybe, the old south really lives on in some form or fashion. Was this jury trying to cut this guy a break because he was a good old boy that had the right idea but was a little misguided in the way he went about it? I dunno. I'll read more to try and get some insight. If anyone knows, I'd be interested in their thoughts. Please respond to the comments so I can start to understand. Was this a legal decision, or was it a political one?

As a backdrop, I have to believe that those southern conservatives that run Washington these days won't rail against this verdict and call the jury "kooky" the way they do against things like the Michael Jackson verdict, or, perhaps a closer analogy, the first Menendez jury (where the jury hung between murder and manslaughter).

UPDATE: Thank you to Jonathan Soglin for pointing this out, but I guess it shouldn't surprise me that the NYTimes has a better rendition than CNN of how the jurors reached a verdict of guilty only on the manslaughter and not the murder. They report here that some jurors said that there was insufficient evidence of Killen's intent in setting this up.

Mr. DA mentions the possibility of misdemeanor manslaughter, before pointing out what has been sitting there in my mind the whole time - Jury Nullification (this is probably in the minds of many, but people are too afraid to raise the old specter of white southerner jury nullification in civil rights trials as being "unfair" to the south, and since the south does run the country these days, we can't be mean to them).

I just can't see what else it could be. Is there any doubt that there was a plan from the very start to kill these civil rights workers. Let's face it, evidence was presented that Killen gave instructions on where to bury, how to bury, to wear gloves, they used the local police to detain the people to put the plan in action, they killed them for no reason at all. I'm feeling pretty inadequate right now, I have trouble getting manslaughters on cases where one gang member shoots another gang member who previously beat up his homie, or where he went into a rival's territory, got shot at, and shot back and killed someone, or where a guy accused of stealing someone else's drugs gets attacked by 3 guys with guns and kills one of them. I got manslaughters on all of them, but it was like pulling teeth, and I had to go to trial first on 2 of them. But this takes things to a whole new level, if you can go and execute people and have a jury of your peers call it manslaughter, I need to do a better job of jury selection, I guess. My clients are right when they complain that they're not getting a jury of their peers when there are no fellow gangbangers on their panel.

Tuesday, June 14, 2005

Jackson NG

I've been away from the computer for a day, but I had to get to one to post to say "I told you so...." I can't get over what one of the jurors said, something to the effect of "we figured he's probably molested other kids before, but we didn't have enough evidence to convict him of this offense." Oh lord how I'd love to have a jury some day who said something like that about one of my clients, but that kind of stuff doesn't happen to public defender clients.

However, laws are chaged because of cases like this, they just don't affect those for whom the law was changed, only the poor, unpopular shmoes who live in quiet anonymity and are convicted daily on less evidence. Remember, the reason the law exists allowing prosecutors to bring in prior (even uncharged) acts of sexual misconduct against a defendant was a response to the last Michael Jackson flare up 10 years ago when he paid the kid off to the tune of $20 million. What new laws will come out of this trial, I wonder.

Wednesday, June 08, 2005

No News on Jackson

Still awaiting a verdict. I've already gone on record (I believe) as saying that I think it's going to be a not guilty. I'll say it again. One thought around my office was whether this may be a hang, and this certainly seems like the type of case that would normally hang. However, I was thinking about it, you rarely see high profile case hang. In the office we were trying to talk about situations where high profile cases hung, and we only came up with a couple. The first Menendez case hung, but later resulted in a conviction. That case had nothing of a profile like the criminal trials of the mid-90's through now, and it only hung between degrees of murder and manslaughter, which is different than disagreeing over the basic facts of what happened. I think that one of the recent high profile corporate fraud cases hung as well, which one escapes me at this time. But, essentially, it is much more rare for high profile cases to hang as compared to the run of the mill cases.

I'm curious about everyone's prediction, post a comment and let me know. Go on the record so you can't try and say "I told you so" later.

Wednesday, June 01, 2005

Arthur Anderson Conviction Reversed

Yes, the conviction of Arthur Anderson accounting firm has been reversed by the Supreme Court, with William Rehnquist of all people writing the majority opinion. Yes, that Rhenquist, who so frequently pooh poohs just about every defendant's claim of trial error. You see, for the rich, corporate and powerful, he's willing to look in every possible place to ensure that that the conviction was properly obtained, sorry if you're a poor minority. But, this is not the purpose of the post.

2 things come to mind here, but one caveat first. I really have no love for Arthur Anderson, and any of the things that they, or the rest of corporate America, pulled, while looting the country. In fact, I really detest the lawyers who played a role in the looting by telling the companies how much they could stretch the boundaries of legality and still get away with it (hopefully). This is really one of the joys of being a public defender - you don't ever have to advise people how to break the law, how much they can get away with, how to commit their crimes better or more legally. You get a case and the facts are there. You investigate it, you represent a person's position, but you do not become an advocate for their wrongdoing, only for their legal position. So many of these corporate lawyers stood there in the corporate boardrooms and became vehicles for immoral thievery - legal or not. But those are not my points, here they are.

1) Many have been saying that Arthur Anderson got off on a technicality (see here and here, for instance) - really, only a non-trial lawyer could ever say that. As anyone who has done a trial, especially a criminal trial, knows, the jury instructions are insturmental in the real determination of guilt or innocence. Absurd instructions that imply that just about anyone could be found guilty (as apparently existed in this case), will probably result in just about anyone being found guilty. The instructions are insturmental, because they assign the level of culpability a jury needs to find to convict, they determine the types of acts one must commit to be guilty, etc. For instance, if you are charged with murder in a car accident without drugs or alcohol (not impossible by the way), and the instructions say that any death at the hands of another constitutues murder, then you will likely be found guilty of murder, even if you did nothing wrong in causing the accident (as in if the victim caused the accident). The instructions are paramount. It's clear that you helped to cause someone's death, but does that make you a murderer? Does that mean if the case is reversed due to jury instructional error that you got off on a technicality? Of course not.

Point 2 - The Justice Department doesn't really care about the reversal because, from their perspective, the damage has been done already. Ditto the judge. In Anderson's case, the fact of the conviction, even reversed, destroyed the firm, which is what the prosecution wanted. And if the prosecution wanted it, then so did the judge.

An interesting dynamic takes place here. After there is a conviction, everyone just says "they've been convicted." In everyone's mind, the game's over. When the conviction gets reversed (which is very rare, by the way, at least for non corporate defendants), then everyone assumes that they got off on a technicality, just because the subject of jury instructions are so esoteric. So everyone says "well, they were guilty anyways." If they're ever retried (why bother now that the company's out of business), the presumption will be that they are probably guilty since they were previously convicted.

So, the attitude of the prosecution and judge are "get a conviction no matter what, that changes all burdens and presumptions to those of guilt, and that's really what matters."

Furthermore, the damage is done. The company's gone. In the case of defendants exonerated after a decade on death row, prosecutors have the same attitude - just get a conviction, we'll let the appeals courts sort out what happens after that, all that matters is that we can say "they're guilty."

That presumption follows people around for the rest of their lives (assuming they're so lucky to live much of those lives outside of jail), unless, of course, you're a right wing ideologue, in which case you can have convictions reversed and claim that this means you were innocent with impunity (see Oliver North and John Poindexter). Or, if you are a right winger, you can also claim that the search is illegal, even though you've spent your whole career railing against courts that are soft on crime for tossing out convictions of people for illegal searches and seizures (see Rush Limbaugh). Or you can pooh pooh the meaning of your non-violent drug use even though you've called for poor blacks to be incarcerated for the same (see Rush Limbaugh again). But I digress (I really couldn't resist those digs).