Friday, June 23, 2006

The Courts conspiracy of silence on police misconduct

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

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

This is what the Court said:

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

and later.....

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


Read the whole opinion here.

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

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

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

Wednesday, June 21, 2006

Should Bush Go to Jail for Flag Desecration?

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

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

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

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

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

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

"This is some nasty" - Another execution in Texas

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

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

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

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

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

Friday, June 16, 2006

A Model for Prosecutors Everywhere

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

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

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

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

Friday, June 09, 2006

Hilarious Website - How not to steal a Sidekick

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

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

Thursday, June 08, 2006

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

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

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

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

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

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