Friday, July 25, 2008

More things DNA

As evidenced by the scintillating discussion about my last post on DNA (none), one can surmise that perhaps DNA is not the most fascinating table conversation in the world. A pity, actually, because it really is so fascinating, and there is actually quite a bit of controversy about it. The controversy is not about it's existence (except among the anti-evolution crowd, but that's a different story), but rather about the manner that it's used.

Since my post on DNA, I've been mildly bombarded by people on a few sides of this issue.

The most gratifying are those who are actually experts in the field who complimented me about breaking the subject down somewhat well (or poorly, but at least not too badly, or, at the very least, for simply addressing the subject, but, whatever). I also got emails from people who recommended that I attend a certain conference on the subject (in Dayton, but more information on that later). Finally, and most importantly, I got a couple of emails from defense lawyers who have huge DNA cases who know nothing about DNA, and want to learn. Of course, my post is a bad place to learn, but it's a good place to start.

Now, for Dayton. On August 15-17, Forensic Bioinformatics is hosting their annual DNA conference in Dayton. I have never been to this one, but I've been to another in this series, and it is really good stuff. It is meant for lawyers to learn about what DNA is, how it is used in criminal cases, and how to handle these types of cases. If you are a defense lawyer with a DNA case, you would be remiss not to attend this, or another conference like it. This stuff does not just come to you, you have to go out and learn it. I can tell you from my own experience that you will come away from a conference like this with a vast amount of knowledge.

There are a couple of Public Defender's offices that are serious about teaching their people (or some of their people, so they can then teach others) about DNA, which is becoming a greater and greater part of the criminal practice. There are other PD offices with their heads in the sand, not willing to put out the resources or change things up enough in their offices to get off their duff and send their lawyers to conferences like this. I can tell you this, having gone through this before, and seeing the lawyers and scientists who run these seminars, you will be much more competent to handle a DNA case after going to this. I will also say this, those PD offices who are unwilling to devote the resources to have their lawyers learn this properly are courting ineffective assistance of counsel claims, lawsuits, and facing the reality that our client's criticisms that we are dump trucks is true. So, defense lawyers, sign up if you can, you owe it to your career and your clients.

Dan Krane, of Forensic Bioinformatics, wrote to me about an interesting issue that is so obvious, it should be basic. The problem of DNA labs knowing the profile of the suspect they're being asked if the evidence matches.

I will blog on this later, but consider this. DNA analysis requires opinions to be given. Analysts have to give opinions about what the readings of a sample are, and sometimes they have to make conclusions not based on hard science about whether something that shows up is DNA or just "stutter" (basically a false reading that looks like DNA). Now, this may seem obvious, because we're talking about science here (BTW - There's no such thing as obvious, science, and police labs - it always defies rational explanation the way real scientists will bend the rules at the behest of the police), but don't you think that these scientists, looking out for the truth, should not be influenced by the suspect's profile when making a conclusion about the profile on the sample from the crime scene?

That's right, it sounds obvious, don't have the (presumed) answer in your hands while you're doing scientific analysis that also requires a little bit of opinion in the analysis.

Now, as I said, I will blog on this more later, but this goes back to that expedience desired by law enforcement to bulldoze over standards and truth in the desire to get an easy conviction. You see it from the police when they refuse to video or audio record conversations - such as between decoy cops and potential drug buyers, or prostitution johns. You see it when they refuse to video tape the alleged drugs sales they set themselves up to watch, and bust people, and convict them just on the strength of their testimony. In other words, you see science subverted in the same manner you see justice subverted in so many other ways in the criminal justice system.

More on this later, but this is why you lawyers need to attend conferences like this Dayton one.

Go to it, and let me know how it was. Unfortunately, I cannot go this year.

Sunday, July 20, 2008

Playing games with DNA

This is some complex stuff, DNA, and it gets even more complex when you try to bamboozle juries with what it means - actually, maybe it makes it less complex, but unraveling the bamboozlement gets complex. Here's what I'm talking about.

The Los Angeles Times has reported on a phenomena that those of us who have gone through more intensive DNA trainings know about, something called the Arizona Database situation. Typically, in a DNA case, the prosecution will contend that the chances of a random person having a profile that matches the suspect who left behind his DNA is one in something like 5 quadrillion (that's a one with 15 zeros after it). I've seen it get as high as quintillion (add another 3 zeros, but who's counting at this point, there's only 5 billion people on the plant, and something like 10 billion people who have ever even been in existence, now and all the way in the past). In other words, your client, the guy sitting next to you, must be the person who did it, because his DNA "matches," and the chances of that happening coincidentally are, well, impossible.

But, it turns out, it's not. This is where it gets complex, and deals with bizarre statistical things, which is why most lawyers don't really understand it, and try not to get DNA cases where there is no other evidence pointing to a suspect's guilt. You see, the DNA that the prosecution is matching is not your whole DNA profile, but just a small little part, up to 15 spots out of billions of spots, areas that are otherwise known as "junk DNA" (ie - it does not have anything to do with any traits such as blond hair, brown eyes, height, etc... It's all just random junk). It used to be that 9 matches was one in some huge number of billions, and that was enough, then it became 11, then 13, now 15. But, 9 is still enough, because it's still one in however many billion.

Until a government analyst in Arizona ran all the profiles in the 44,000 person Arizona database against each other, and found 122 people matched at 9 of those locations (or loci, as they're known in the field), something that was only supposed to happen one a billion times or so. And most of these people were completely unrelated.

Now, one would expect the FBI and other law enforcement organizations - who of course are in a search for the truth and justice - to find out why this has happened, to see if, in fact, there are cases where 2 people do have the same DNA and aren't related, to see how often this happens in other situations.

Done laughing yet? Have you read any of my previous posts about not trusting government and law enforcement? Here's another reason. The FBI did not do this. They stopped states from trying to do this. Not even through legal means, but through lies. They said things like: "tell the Court you'll lose your accreditation if forced to do this search," followed, sotto voce with "don't worry, you won't really lose it." Or how about: "tell the Court that it will tie up the system for days and can corrupt the whole system, rendering it useless." And guess what, these lies have worked most of the time. In California, the Courts have roundly refused to run the whole system against each other to see if anyone matches.

Except, in 2 states, they actually have done so. Don't worry, those of you sitting on the edge of your seats worried that they may have lost their accreditation or that the system shut down, corrupted - it all turned out fine. Oh, except they found a bunch of matches where they shouldn't have. One time they even had a match in 13 out of 13 loci, or more than a one in a quadrillion chance. The Maryland crime lab argued that those are probably, in fact, the same person, put in their twice under different names. Or maybe twins. They're so convinced it's something innocuous like that, they haven't bothered to even check.

Here's the thing: police science people (see, I can't even call them scientists they're such jokers) aren't willing to consider this possibility. Perhaps this "junk DNA" that people are comparing against aren't really junk at all. What if these code for character traits like, say, propensity for violence. While the statisticians are saying the chance of any two people having the same DNA at one of these spots is, say 1 in 10, maybe it's only one in 10 for non-violent people, but more violent people tend to have DNA that groups in the same area frequently. Then it wouldn't be so rare.

Now, I know that's a little complex, and I'm not a scientist (I sucked at math and science, that's why I became a lawyer), but it comes down to something like this. Say a Hispanic person does a murder, and leaves their DNA behind. The DNA gets compared to another Hispanic person, and they declare it's a match at 9 loci, and the chances of that are 1 in 5 billion (ie - there's no one else on the planet with the same DNA). They say this because each of those loci are completely random, there is no chance that one person has one profile over another at any of those loci.

However, what if it is found out that 1 of those loci really tends to show eye color (this is very basic, and it probably wouldn't show something that basic), another shows hair color, another shows skin tone, and another shows height. Now, the person who did the murder was 5'6", black hair, brown eyes, and slightly darker skin. If the suspect is about the same, you've described, in the Los Angeles area, probably about a million Hispanic men. Now if these loci were random, maybe it's one in a billion, but if they're not random, and you'd expect a bunch of Hispanic men to have this profile, then maybe the odds are only 1 in 30,000 Hispanic men may have this DNA profile (not all will have the same DNA, even if they have those traits, as there are a bunch of DNA spots that have to do with hair, eyes, skin and height, it just makes it more likely they'd have similar DNA). But, suddenly, you're looking at over 30 men in Los Angeles who may match that DNA.

This doesn't sound like a match to me (unless you're law enforcement, and it's close enough for government work - regardless, you're getting some Hispanic guy with a record off the street, if he didn't do this, he probably did something else anyways).

No wonder why the FBI is trying to bottle this stuff up, imagine DNA wasn't the picture perfect thing they've portrayed it to be.

Now, I know this is thick, and I probably described it poorly. If enough people write me and say "huh?" I'll try and re-do in a better way, maybe even consulting with someone who knows this better than me. If not, I'm interested in whether people understand my point here (besides the obvious, which is, another law enforcement cover-up).

Read the article for more info, they describe it better than I do.

Special thanks to reader MT, who pointed this article out to me this morning before I had a chance to look at the paper.

Friday, July 18, 2008

NY Times Article Attempts to Undermine Exclusionary Rule

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

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

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

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

However, a few things must be noted.

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

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

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

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

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

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

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

Reflections upon the law and Democracy

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

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

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

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

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

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

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

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

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

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

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

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

Now, what should we do about it?

Dennis Wilkins
The Guest PD Blogger

Thursday, July 17, 2008

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

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

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

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

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

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

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

Dennis Wilkins
The Guest PD Blogger

Sunday, July 13, 2008

The Proposition - The Scourge of California

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

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

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

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

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

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

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

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

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

Wednesday, July 09, 2008

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

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

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

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

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

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

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

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

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

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

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

Dennis Wilkins
The Guest PD Blogger

Tuesday, July 08, 2008

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

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

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

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

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

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

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

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

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

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

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

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

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

Dennis Wilkins
The Guest PD Blogger

Monday, July 07, 2008

Skelly at Arbitrary and Capricious slammed me today.

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

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

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

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

Dennis Wilkins
The Guest PD Blogger

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

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

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

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

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

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

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

The California State Bar may be starting a new trend.

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

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

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

Dennis Wilkins
The Guest PD Blogger

Sunday, July 06, 2008

What is going on here?

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

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

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

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

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

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

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

Dennis Wilkins
The Guest PD Blogger

Thursday, July 03, 2008

Has it really been 6 Months?

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

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

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

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

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

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