Saturday, July 17, 2010

Connect the Dots

I haven't posted in a long time, so let me make a short post to observe a few "connect the dots" observations - I want to connect two pieces of news and sort of juxtapose them, so that people can draw their own conclusions.

First, there have been numerous articles about Chief Justice George retiring from the California Supreme Court. There is a long list of his "accomplishments." Here is an example: I am sure he is proud of himself. And it is true that he tried hard to modernize California's huge judicial system and make it more uniform. But along with his kudos, he should get knocks for some of the many, many crappy decisions that his court has made that defy logic, most especially in the realm of criminal justice. The most recent example: People v. Low - link here: , and People v. Gastello - link here: Both were handed down on June 24, 2010. Both are listed in PDF format because everyone has Adobe Acrobat.

In both Gastello and Low the defendants were charged with a statute that California has called Penal Code section 4573. In essence, it is illegal to bring drugs into a jail. But what if a person is arrested, and has drugs on them, and THEY are brought to a jail? Well, in the intake area of pretty much all jail facilities in Californi, there is a sign that advises the defendant of PC 4573, and essentially tells the defendant that he has to fess up that he has drugs, or else he faces a straight felony when the deputies find them.

In California, possession of marijuana is a misdemeanor, unless it's for sale. Possession of methamphetamine can be a misdemeanor, at the DA's discretion. Possession of cacaine is a stright felony. But a defendant facing a charge of simple possession of any drug, even cocaine, can often get into PC 1000 diversion, or Prop. 36, or even drug court, depending on his/her record. Most simple possession cases do not result in prison time, not even for 3rd strikers. Remember, I said most simple possession cases - some still get prison based on their prior strikes, their records, other charges, etc. It all depends on the facts, the DDA, the court, the temperature outside, the relative humidity, the defendant correctly guessing the number of angels that can dance on the head of a pin, etc. But not so with a PC 4573 charge. That is a straight felony for which there is no diversion, or Prop. 36. Maybe drug court. But certainly a felony that cannot be reduced to a misdemeanor at some point. Thus, having a simple possession charge amped up to a stright felony PC 4573 charge can be a serious issue. In Low, the defendant lied to the cop, claiming that he had no drugs on him. A search found the drugs. In Gastello the defendant said nothing, after having been Mirandized at some point, and the drugs were found in a search. In both cases the defendants were convicted on straight felonies. Low was the longer opinion, dealing with the various Constitutional and statutory issues. Gastello is much shorter and pretty applies Low.

In both the Low and Gastello cases the California Supreme Court, the George court, discussed the Fifth Amendment right to remain silent, and the idea that neither of the defendants "voluntarily" went to jail. Both defendants would much rather have been somewhere else. Thus, they didn't "bring drugs into a jail" - they were brought to jail while possessing drugs. The George court ruled against both Gastello and Low, and pretty much gave short shrift to the Fifth Amendment argument. In Gastello, in fact, the better of the two cases (he remained silent, after all), the George court simply could not understand how the Fifth Amendment was implicated at all. They acted as if they had never heard of the "cruel trilemma" - the basis of Miranda. The "cruel trilemma" is as follows: A defendant has three choices when questioned by the police. 1) He can remain silent, and be thought guilty, because if he wasn't guilty he would have said something, 2) He can confess, thereby proving his guilt, or 3) He can lie, which will likely convict him as well, because his lies will be found out. This is one of the bases for the 5th Amendment and for Miranda. Like it or hate it, it is blackletter law. Instead, the Goerge court said that the defendant was correctly prosecuted for PC 4573 BECAUSE he remained silent - a "nontestimonial act." Beg pardon? His REFUSAL to confess his guilt was a "nontestimonial act" for which he could be prosecuted? Wow - that really turns the law on its head, huh?

The George court simply couldn't understand how the Fifth Amendment was implicated at all. I mean, if the defendant has drugs on him, and reads that sign, all he has to do at that point, to prevent a charge of PC 4573, is to confess to the cops that he has drugs. And, wallah, there can be no PC 4573 charge. Wow, I never thought of that. What a great idea. Next time, I will advise my client who faces a potential crime and who is afraid of the police charging him with a more serious crime to confess his crime to the police and waive his Miranda rights. That way, he won't have to worry about new charges. And I guess then I can wait to be disbarred or something.

Is the George court really this dumb? The only way to prevent a PC 4573 charge is to confess, and that doesn't implicate the Fifth Amendment? At least one unanimous appellate court thought it did. Oh, and of seven members on the Goerge court, guess how many dissented. None. Yeah, I guess that happens when everyone uses the same law clerks. Note that both Gastello and Low were written by the court's most conservative member, J. Baxter. But George gets to assign the opinion to whomever he wants, since the opinion was unanimous. And I am sure that George also had some influence on the opinion, again because it was unanimous.

Chief Justice George announced his retirement now so that Governor Arnold Schwarzenegger, a guy with the lowest approval ratings ever (even lower than Gray Davis before his recall), can name his replacement. I suppose that this is just in case Jerry Brown, the Democrat who put Rose Bird onto the court, wins over Meg Whitman in November (that race is a tossup at this point). It is no wonder that California's judiciary, especially it Supreme Court, has become the laughingstock of the free world. The trial judges in California hand out horribly punitive sentences, then the appellate court and the California Supreme Court simply affirms them, all the while the prison system is in tatters due to massive growth. Meanwhile, the Legislature dithers and passes tougher and tougher laws with longer and longer sentences, with the electorate every once in awhile one-upping them. It is no wonder that our criminal justice system has become the shame of the free world.

So, connect the dots. Chief Justice George is retiring, and the newspapers say he is a really great guy because he helped convict the Hillside Strangler. But many of his court's opinions, especially many of his court's recent opinions, really suck and are pretty much devoid of honest reasoning. Yeah, I suppose that many in California will really miss Chief Justice George. I won't.

Dennis Wilkins
Deputy Public Defender
The Guest PD Blogger