Wednesday, May 26, 2010

Further Reflections on the Marijuana Legalization Initiative in California

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

My post this morning generated a pretty cool response from a site called Legal Blog Watch. Here is the post: I am treated pretty faily by the writer of the piece, an attorney named Eric Lipman. His discussion of what I said is on his blog, at the site listed above. He takes me to task a bit for what I said, but he reminded me of something improtant: Don't make a comment on the web unless you are prepared to support it. And even if you can support it, prepare to take some heat anyway. Read his post - it's pretty good.

Well, then I started looking and I found the Marijuana Policy Project at: I must admit that the articles seem pretty well-reasoned on that site. And there is a neat little video by a guy named Mike Meno at This young guy is VERY well spoken. In fact, he should be the spokesperson for at least some of the legalization effort.

My opinion on whether the initiative will pass hasn't changed - the recent drop of support for the legalization initiative indicates to me that Californians are still pretty skeptical. A comment to my last post at Public Defender Dude illustrates this. I believe that many people will let fear guide their decision-making. After al, we don't know how bad things will get when we open this box, right? And when the vast overwhelming majority of police agencies say that marijuana legalization is bad, well, who wants to disagree with the police, right?

But if spokespeople like Mike Meno are able to get their voices out there, and if prominent people actually actually start to take note of some of the silly things that those on the prohibition side are saying, then maybe things will change. For example, the U.S. Drug Czar Gil Kerklikowske just said within the last few days that, as to marijuana, the Obama administration is "not exploring prohibition." Well, that's just plain stupid. What we currently have, like it or hate it, IS prohibition. The issue is whether the marijuana prohibition should continue. Because I don't believe that the U.S. Drug Czar is an idiot (No one appoints a complete idiot for such a high profile office in this day and age), I have to believe that he is a liar. How could he not know what prohibition means? If more high-profile discussions start about the rhetoric on the other side, maybe, just maybe, legalization will stand a chance.

We can only hope, right?

Dennis R. Wilkins
The Guest PD Blogger

The Marijuana Legalization Initiative on the November Ballot

It's on the ballot for November 2010. It is a great idea, and it is a well-written initiative. The drug war has failed, [Here is the May 11, 2010 AP article: - and here's what Grits for Breakfast, an excellent PD Blog had to say: ]and the marijuana front has been an even bigger failure. Marijuana is not even as dangerous as alcohol, which has been legal since Prohibition.

And it will fail at the ballot box. Here's why:

1) Marijuana legalization is soundly opposed by most old people. Old people vote religiously. California politics has been skewed by the opinions of older voters for decades. There is no reason for older people to want to legalize marijuana - they can get vicodin easily with their prescrption drug benefits. And alcohol is even more easily available at the corner store/local liquor barn. Oh, and one last thing - all old people know very well that only DFH's use marijuana. And anything that DFH's want, old people are opposed to.

2) There are no good spokespersons for legalizing marijuana. Take a look on the web and you will find that of the many, MANY opinions that are written in response to articles about marijuana legalization, the ones in favor are usually riddled with spelling and grammatical errors. What does this mean? They are "normal people." Not NORMAL, as in the National Organization for the Reform of Marijuana Laws, but just ordinary, non-college-educated folk. Who want to smoke pot. Most rational people who have a degree of some kind won't say ANYTHING about marijuana legalization because they fear being branded as "one of them." You know - druggies. DFH's. Pot smokers. And as just about ANYONE will tell you, that is the kiss of death for just about any professional. Oh, an occasional professional person can admit that he/she smokes pot, and might even be caught with/smoking pot. But to advocate for legalization publicly? No, that professional will suffer. I won't suffer in my profession because I already defend murderers, rapists and child molesters - supporting legalization is the least of my professional "sins."

Full disclosure: I don't smoke pot. I would smoke pot occasionally, if it were legal. But it isn't, so I don't and I won't. Why? Because I am a Deputy Public Defender, an officer of the court, and I don't want to get my house searched. I don't need the headlines. And I genuinely do my best to obey the law, however stupid it may be at times.

But I despise the ruins my country has made of itself over the ever-escalating drug war. I despise the corruption in the various police departments that the new prohibition has brought us. I despise the fact that the public schools, public schools that my children go to and will continue to go to, lack funds because my government has to feed the criminal justice beast, of which the drug war plays no small part. I got a letter a week ago that said that the school district can no longer afford to bus one of my children because of budget cuts. If given the choice, I would much rather not have ANYONE do time for marijuana-related "crimes," so that our state can afford to bus children who should be bused to school.

3) Police agencies and prison guards are, or soon will be, all over this one. They NEED marijuana offenses to be a crime. If decriminalization were to happen, within 2 years we would see the effects: nothing. That's right - nothing adverse will happen. People will smoke pot like they currently do, and the only guys who will see business cuts are the marijuana dealers, the various growers (the profit incentive will be greatly reduced, so it won't be as lucrative), the middle men, the police agencies who used to enforce the drug war laws, the prison guards who will have less peope to guard, etc. The various police, sheriffs, and the California Correctional Peace Officer's Association, will end up contributing heavily against this initiative.

Another reason they will attack it? God forbid it works, because then it will become a gateway of a different kind. A gateway to legalization of almost all drugs. Remember when the speed limit was 55 MPH throughout the country? That took forever to change, with several states essentially stating that they would abandon a portion of their highway funds by allowing cars within their state to speed. When the federal government considered changing the speed limit, police and highway patrol agencies from across the nation objected loudly, predicting that the sky would fall, and that there would be an avalanche of speed related deaths. When the law was finally changed, within two years the numbers were in: deaths didn't go up appreciably. People had been speeding already - now they were just doing so legally.

The same thing will happen with drug legalization. All that we have now is a new Prohibition, one where the drug companies, the police, and criminal dealers and producers (organized or otherwise) benefit. And taxpayers pay the tab.

But the initiative, unfortunately, will fail. Because no one who sounds coherent will stick their neck out to defend it. And that is sad.

Dennis R. Wilkins
The Guest PD Blogger

Monday, May 24, 2010

Update on William Richards

I posted last year in "DNA Exoneration Close to Home." The defendant's name is William Richards. His case number is FVI00826. I have not been following the case closely. But after reading some of my posts, I realized that I wanted to know what had happened with this case. Well, I found out.

According to a news artical, and then confirmed by reading the court minutes, William Richards remains in jail. The San Bernardino DA is appealing Judge McCarville's decision, I gather on the grounds that he did not have jurisdiction. In other words, even if William Richards WAS wrongly convicted (the DA does NOT concede that he was), their claim is that a California Superior Court judge lacks the power under California law to grant him a new trial. I hope that they are wrong.

But in the meantime, William Richards remains in county jail. He was transported from prison and is now in county jail. He apparently has cancer, and he is receiving treatment for cancer while in jail. This is his second bout with cancer. It would be very sad indeed if he died either while awaiting a decision from the appellate court about whether Judge McCarville's actions were correct, or pending a retrial if it comes to that.

It is unfortunate that our system comes to this: If a man is convicted, he is forever presumed guilty, and he must move heaven and earth to get someone, anyone, to hear his plea that he has been wrongly convicted. But if a man is acquitted, he will forever be suspect as having committed the crime. The search for the truth that our system is often boasted as being all about, especially those in law enforcement and prosecution circles, is far more than not a search for punishment of those of whom are convicted.

But hey, we really are getting the kind of justice that we, as a society, have publicly demanded. Laws are rarely, if ever, seen as too punitive. Rarely, if ever, is there a cry from the citizens that laws have become too harsh (and they have, in my opinion, become far too harsh). There is far more often a cry that the laws are too soft; that judges are too "soft on crime"; that legislators are "coddling criminals." We have come to a time where we have just about bankrupted our state.

What have we spent this largesse on, you might ask? Was it that we built too many schools? Staffed too many libraries? Maintain too many parks? Run too many hospitals? No, not even close. I can't wait for all of the illegal alien haters to join in and tell me how "soft" and "stupid" I am (Some are such nice folk in person, but with the anonymity of the web, their words can become like acid), and claim that it's the illegal aliens who are bankrupting us. No. It's the prisons and jails that's doing us in.

Don't worry, though. This debate will keep on going. The new discussions of "outsourcing" our prisoners to other states, or even Mexico (I'm sure that will fly with the California taxpayers - we pay to build and staff prisons in Mexico while we go bankrupt here - sure thing, Arnie!) to come in line with the 9th Circuit's ruling on overcroding and medical care is actually good for our system. I mean, why should we pay for schools? Why should we pay for universities? After all, we have all those prisons to fill.

Just a few more years of this, and the electorate of California is gonna get mighty tired of paying a fortune to house and feed "criminals." We'll see if that becomes a clarion call for getting people the hell out of prison. We'll see.

Dennis Wilkins
The Guest PD Blogger

Wednesday, May 19, 2010

Thinking about Kyles v. Whitley

I went to a California Public Defenders Association conference this weekend. It was the first one I had been to in a long, LONG time. It was in Palm Springs, and I had a really good time. It was their 41st annual convention. The speakers were good the first day, but the next day they were AWESOME. I was really impressed with Brian Waite, a deputy PD from Orange County. His presentation on opening statements and closing arguments was simply magical. This man had a gift.

But the first day's presentation by DPD Charles Denton, of Alameda County, I think, was an excellent hands-on presentation. It was great because he talked discovery, which is something that defense attorneys like myself never get enough good insight on. The more discovery we get, the more triable a case can become. The less discovery, the worse.

Charles Denton did something that there never seems to be enough of - he talked extensively about a particular case: Kyles v. Whitley, 514 U.S. 419 (1995). If you haven't read Kyles v. Whitley, read it. You should also read In re Brown (1998) 17 Cal.4th 873, where Justice Janice Rogers Brown, now on a federal appellate court somewhere, really applied the holding of Kyles v. Whitley. The key holding of Kyles v. Whitley is the fact that the DA heads something called the "prosecution team" which includes the police and other entities that, while the prosecution may not control, the prosecution is certainly responsible for. Per Kyles v. Whitley, the prosecutor must seek out exculpatory evidence that the "prosecution team" holds.

The backstory to Kyles v. Whitley is simply amazing. Long story short (if that is even possible now), Curtis Lee Kyles is charged with murdering a woman, and the key witness is a guy called "Beanie." The problem is that "Beanie" also has a motive for the murder, and his whereabouts and actions are very questionable. It is also kind of apparent that he very well could have planted every bit of evidence used against Kyles, with the exception of some lineups by witnesses that end up being coaxed by the cops to testify falsely.

The first trial, in 1984, hangs. In the 2nd trial, Kyles is convicted and gets death. It takes 11 years to get the U.S. Supreme Court, where a bare 5-4 majority reverses his conviction. Lots and lots of evidence was hidden by the police, and it trickles out over the decade since Kyles was convicted. The majority concludes, in a lengthy opinion, that the suppressed evidence, as a whole, would have made too much of a difference in the trial. A great case, everyone should read it.

After the presentation I talked to Charles Denton and shared some of the backstory about Curtis Lee Kyles, that I mangled a bit at the time. I will share it with you now. After the 1995 U.S. Supreme Court opinion, Louisiana tried Kyles again, and there was a hung jury. They tried him again, and again there was a hung jury. One last trial, and it was again a hung jury. Thus, 5 trials in all, 3 of them after the death sentence was reversed. Louisiana finally tired of this, and dismissed the murder case against Kyles. He walked out of prison in 1998. He was on death row for 18 years. He was within 18 hours of being executed at one point. At every single trial, NEW discovery came out that the police had not disclosed. In other words, the police and DA hid evidence before every single one of 5 trials. The final analysis of the case is that it is pretty likely that Beanie was the actual killer, although law enforcement in Louisiana still think otherwise.

One final note. The dissent in Kyles v. Whitley was written by Justice Scalia, joined by (now deceased) Chief Justice Rehnquist, and Justices Kennedy and Thomas. Here is a tiny snippet of what Justice Scalia wrote, which I find fascinating in how wrong he and his fellow dissenters got the case:

"In any analysis of this case, the desperate implausibility of the theory that petitioner put before the jury must be firmly kept in mind. . . . The Court concludes that it is reasonably probable the undisclosed witness interviews would have persuaded the jury of petitioner's implausible theory regarding the incriminating physical evidence. I think neither of those conclusions is remotely true, but even if they were the Court would still be guilty of a fallacy in declaring victory on each implausibility in turn, and thus victory on the whole, without considering the infinitesmal probability of the jury's swallowing the entire concoction of implausibility squared."

Hmmm. In other words, there is NO WAY that this guy culd ever win, so why are we reversing his conviction? Oops.

Dennis R. Wilkins
Guest PD Blogger