tag:blogger.com,1999:blog-56510322024-03-23T10:58:02.017-07:00Public Defender DudeThe rantings of a Public Defender constantly fighting against society's pervasive Police Industrial Complex. Enjoy the unique perspective of one whose life's work is to fight the system through the system.PD Dudehttp://www.blogger.com/profile/06067582064163477160noreply@blogger.comBlogger241125tag:blogger.com,1999:blog-5651032.post-84226523455815710332014-09-28T13:26:00.001-07:002014-09-28T13:26:31.202-07:00Why can't prosecutors convict cops?It drives me crazy! You see the police do something that's just nakedly illegal, it's caught on video, it's morally and legally reprehensible. And yet there are no charges brought, or if charges are brought they're undercharged. And even when it goes to trial the case is somehow lost.<br />
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It constantly makes me ask "why can't prosecutors convict cops?!"<br />
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I've seen so many cases of botched prosecutions of police officers over the years it's begun to resemble a pattern to me. The police circle the wagons (and even if the brass suggest the cop was dirty and they distance themselves from the dirty cop in question, the police union holds no such concern and will defend the officer no matter what, as will the willing lackeys in the press). <br />
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My first thought is that typical prosecutors are so in hock to the police that they're simply unable to bring quality prosecutions. When you've spent your whole career justifying whatever police do, made all your connections and promotions through being a backer of police, and have your whole worldview centered around a police way of doing things, it's hard to step back from that and begin seeing how this process clouds you in the case of prosecuting police.<br />
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Here's an example of the differences between the way prosecutors and defense lawyers try a case. The DA has a police report and treats it as gospel. Sure there may be mistakes on it, but generally, it's the sign of a hard working police officer writing down his general thoughts about what happened on the day in question so posterity can take a look and use it to convict some bad guy. However, to a defense lawyer, the police report is a treasure trove in little nuggets of missed information, misstatements, errors, omissions, and contradictions that we use to tie a police officer down to a particular account of what happened. When we can show that their report is inconsistent with other objectively provable facts, we hammer the witnesses obvious bias in how they wrote a report that was clearly false. And through this we win trial - lots of trials. It's really central to our way of doing business.<br />
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So imagine that a defense lawyer was tasked with prosecuting a dirty cop in a case where they wrote a report about how they were under attack when they shot someone, only to have a video surface later that contradicts that report. From the DA's perspective, they have an inconsistent statement, but DAs are used to proceeding as if the police report is generally a true rendition of the incident that happened. They are far less likely to use that as the lynchpin of their prosecution of a cop. However, us defense lawyers are used to using that false police report as the basis of our undermining of the police witness. So while prosecutors start getting caught up in things like narrative, expert witnesses, use of force experts and other police officers who will (often reluctantly) be used to bring down their fellow officers - us defense lawyers would step outside of that completely and go after police the way we're used to going after them - with their own words.<br />
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I have rarely heard of stories of the police report which understates the level of force or overstates the level of resistance being use as the lynchpin of a prosecution case - it always boils down to expert witnesses for them, and other cops being called in to question the tactics. Why not step completely out of that role and just go after these officers in particular? When they try to bring in their use of force experts to show that the offices were acting correctly, it's a pretty simple cross examination - "sir, if the officers were acting correctly, and they knew it, then you would expect them to write a truthful and honest police report wouldn't you?" And then you just hammer that witness with the police report. Don't get down into the weeds with these pro-cop use of force experts, because these guys are always saying the same thing - police are justified in any use of force any time with any amount of violence if they are in "fear." Well, rather than counter the reasonableness, counter the "fear" by showing they lied.<br />
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There's a lot of other stuff in there, and I'll come back to more of it later. But to me, the basis of any prosecution against dirty cops must be the lies they told on their initial police reports that they wrote prior to the video of the incidents actually arising.PD Dudehttp://www.blogger.com/profile/06067582064163477160noreply@blogger.com76tag:blogger.com,1999:blog-5651032.post-70058881476685310282014-09-07T17:42:00.001-07:002014-09-07T17:42:47.605-07:00Prop 36 - drugs and 3 strikes<a href="http://publicdefenderdude.blogspot.com/2008/07/proposition-scourge-of-california.html">I've written before </a>on the fact that I consider propositions to be the scourge of California politics. I still consider them to be so. <br />
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In general, I think propositions are WAY overused in California, and they've actually replaced effective governing instead by just going directly to a bunch of uninformed or misinformed voters with a fancily drawn title and promises to make the world a better place with one yes vote. Voters in general tend to be pretty low information, it's bad enough when they vote for politicians they like or don't like based on 30 second ads, but at least those politicians have to actually report back to the voters with the things they've done every few years, but a proposition is a single vote that locks something into law forever without an ability to change it (most propositions are written in a way that require super-super majorities to make even the most minor changes.<br />
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I know there's no way to legislate this, but I believe that propositions should only exist in situations where there's a broad consensus to make the change throughout society but politicians otherwise refuse to deal with. Those areas are pitifully few - Medical Marijuana comes to mind, Prop 13 and Prop 187 (respectively - the property tax initiative of 1978 and the illegal immigration initiative of 1994 which was largely ruled unconstitutional) possibly as well - even though I disagree vehemently with the last 2.<br />
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What's interesting is how there have been 2 propositions in the last generation which have gone far to reduce penalties for crime (I guess Medical Marijuana could be a 3rd), and both of them are Prop 36. In 2000, Prop 36 passed making drug treatment mandatory for certain drug offenders. Mind you, the police still arrest people like crazy for drugs, prosecutors frequently over-charge sales cases to avoid the drug treatment regime, and plenty of people are still in prison for drugs, but the numbers have gone down dramatically over the last 14 years. And crime has coincidentally (or not?) gone down as well.<br />
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The recent Prop 36 of 2012 codified the general practice of former LA District Attorney Steve Cooley, a Republican who also did not favor the abusive incarceration of low-level offenders for life under 3 strikes like his ostensibly liberal Democratic predecessor Gil Garcetti did. When Cooley came into office, he adopted a policy which mandated "2nd strike" sentences (or double the typical punishment but not life sentences) for most non-serious/non-violent 3rd strikers. The effect of Cooley's policy was incredible. Pre Cooley, LA filled the state prisons at an incredible rate with non-serious/non-violent offenders. Since Cooley, those people received hefty prison sentences, but not life sentences. Again, coincidentally (or not), crime continued to plummet in Los Angeles.<br />
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The final thing to say about Prop 36, it was mostly retroactive. This means that most inmates serving life sentences for non-serious/non-violent offenses (i.e. - huge numbers of people in LA from the Garcetti era) could petition the Court for re-sentencing as "2nd strikers," meaning they got much shorter sentences and their life sentences were vacated. It will probably shock no one that that the LA DA's office has fought most of those petitioners (there are over 1,000 from LA County alone). Despite this, many have been released, this because they overwhelmingly came from the Garcetti era and hence had more than a decade of credit for time served, so their 2nd strike sentences meant immediate release (anyone surprised that the DA's office can agree with a certain policy, but just can't quite stomach the notion of actually letting people out of prison?).<br />
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And wouldn't you know it, the recidivism rate of these 40/50/60 year olds (and older) is VERY low! Just like people argued when 3 strikes was passed back in 1994 - you imprison low-level offenders for life then you're really imprisoning many way beyond their crime years, and end up running an old-folks home for has-been criminals. And the people who argued that were mostly right.<br />
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But it is fascinating that after all these anti-crime initiatives that have helped balloon California's prison population to the largest in the country and led to higher spending on prisons than Universities in California, we finally pass 2 common-sense ones here that have paid major dividends in the state, and both are called Prop 36! Who would've known?<br />
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Of course, Californian's have a chance to go with another common-sense de-ratcheting of crime initiative this fall - <a href="http://ballotpedia.org/California_Proposition_47,_Reduced_Penalties_for_Some_Crimes_Initiative_(2014)">Prop 47</a>, which would reduce all drug possession crimes to misdemeanors. With the money saved going in large parts to our state's schools. You'll never guess who's against it - that's right, the regular cast of characters who's livelihood depends on the criminal industrial complex. <br />
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Who cares? Go Prop 47!!!!PD Dudehttp://www.blogger.com/profile/06067582064163477160noreply@blogger.com6tag:blogger.com,1999:blog-5651032.post-82018998309947641182014-09-06T18:10:00.000-07:002014-09-06T18:10:01.474-07:00PD Dude - Back posting again?Why post? Why write? How to keep it up? How to stay relevant? How to write about things that are interesting to people who look at a specific type of blog and don't necessarily want to see someone pontificating on the rest of society's issues, even though those issues are of great interest to you and you think you have something to write about? How to keep writing about what seems like a more and more narrow subject even though it's so full of interesting things on a day to day basis?<br />
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And most importantly, how to pick it up again after dropping it for so long without feeling like a fool, or artificial, or like you have nothing more important to say?<br />
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I started writing this blog more than a decade ago. It was new, I was a a lot younger, I really loved doing it. I wrote for a while, I got some nice feedback, I did it some more, and as much fun as it was, it became hard to keep it up. <br />
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So much has changed in the decade since I started writing this blog, and in the nearly 6 years or so since I last wrote for it. I had someone keep up the activity for me for a while, an earnest and hard-working public defender from San Bernardino. He wrote a bunch, I intended to collaborate with him and make the blog more vibrant, but I just simply dropped the ball, and the blog faded away. In that time, the word "blog" has changed meaning dramatically. So many webpages that were once "blogs" are now legitimate news sites. Some of them get millions of hits per day and are read religiously by people - including myself. <br />
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I guess I spent so much time away from PD Dude that it became natural to not write on it anymore. And I guess I haven't missed it <b>that</b> much, but I have missed it. I sometimes see so many things happen and want to comment, and feel I don't have a forum.....<br />
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So, for now, I'm back. I have a few things to talk about, and I'm going to talk about them.<br />
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Furthermore, I so frequently got good questions from people, I'm going to try and answer them more as well. So feel free to ask a question or two, and I'll do my best to answer them here.<br />
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But, for my one tidbit today, and the thing that's really changed the most since I last posted nearly 6 years ago, I want to go back to something I wrote about years ago. I noted on this blog more than 7 years ago that <a href="http://publicdefenderdude.blogspot.com/2007/12/why-are-ex-public-defenders-so-often.html">ex-Public Defenders tend to make really bad judges </a>- or at least some of them do. But so much has changed in that time.<br />
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Arnold, when he was governor, appointed a bunch of Public Defenders to the bench. For years the tradition had been that only District Attorneys were appointed to the bench. It started with George Dukemeijian, continued with Pete Wilson (both law and order Republicans), and ironically got even worse with Democrat Gray Davis (the ultimate law and order panderer). Arnold got better, and appointed several Public Defender's to the bench. But now with Jerry Brown, he's been appointing huge numbers of PD's to the bench, and it's really starting to make a difference. It's slow, I know it, the number of old-school law and order DA's is still high, and the appellate courts are still filled with them, constantly writing "harmless error," to affirm any conviction. But the Supreme Court is slowly changing, and I think that the lower courts will change as well. They are becoming more human, they are becoming more diverse, like our state. And there is a greater degree of empathy on the bench - both with victims and defendants. <br />
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It's not all better, mind you. The deck is so incredibly stacked against us PDs it's incredible. But we have made some strides, and while it's not even, society is changing too. They are less in favor of the death penalty, less in favor of 3 strikes, less in favor of putting drug users away, they have passed 2 proposition 36's (one for drugs one for 3 strikes). I never thought it would happen when I started this blog, but the tide of anger and antipathy is slowly turning. California has become a better place, and I'm so happy to be here to see it.<br />
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Anyways, I'll write back again soon with more comments on some of the things I've started to discuss above. Perhaps there is hope for society!PD Dudehttp://www.blogger.com/profile/06067582064163477160noreply@blogger.com4tag:blogger.com,1999:blog-5651032.post-5591252220215173032011-09-03T07:43:00.000-07:002011-09-28T18:20:30.975-07:00And You Thought You Had a Difficult Case.In New Orleans, they do things FAST. And some of the details tend to get blurred. Read this newspaper article from New Orleans: <a href="http://www.nola.com/crime/index.ssf/2010/10/new_orleans_man_convicted_of_a.html"></a>
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<br />The gist of it is that Luhron Gorman was in New Orleans with a friend, and they were running from the police. At one point Mr. Gorman and friend went into someone else's house to hide, wherein the friend robbed that family at gunpoint. The friend got away with $60. Mr. Gorman was arrested 2 weeks after the crime from a crimestoppers tip, and he starts confessing. He says he had no part in THIS robbery. He merely went in to make sure his friend did not hurt the 97 year old resident, and he never displayed HIS gun. But he also confessed that he had stolen the gun that he had on him from somewhere else.
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<br />Mr. Gorman was tried for 4 crimes within 24 hours, among which is the home invasion robbery and the possession of a stolen firearm. Although it is not evident from the article how it happened, his attorney, Public Defender Jessica LaCambre, "tried unsuccessfully to stop the testimony" of Mr. Gorman. I assume that that means that she told him not to testify, and objected when he insisted on taking the stand, etc. It appears that Mr. Gorman felt it necessary to testify, against the advice of his attorney, and that he didn't do well enough in testifying to save himself from being convicted. The jury convicted him of everything. Mr. Gorman now faces 99 years for the robbery, and 10 to 20 for the gun. At some point Mr. Gorman accused his Public defender, Jessica LaCambre, of having an inappropriate relationship with the prosecutor (I don't know what that means, but it always sounds bad), and of failing, I guess, to negotiate him a better plea deal. The article speculates that Mr.Gorman did this to either get a mistrial or lay the groundwork for an appeal.
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<br />Look, Mr. Gorman sounds pretty guilty of SOMETHING, because he confessed to numerous things. And he likely slit his own throat when he confessed to the police. Who knows how much he hurt himself by testifying, often a difficult proposition. I don't know anything about Public Defender Jessica LaCambre, but I will assume that, as a PD, she was doing what she thought was right for Mr. Gorman, trying to dodge one or two icebergs on what was obviously the Titanic. I've been accused of having an inappropriate relationship with DDA's before by clients because, God forbid, I was talking to the DDA about their case when they couldn't hear (or someone else's case, for that matter). Clients facing years in prison may be a bit paranoid, or even a lot paranoid, but, WOULDN'T YOU BE? I mean, if someone you don't know, who you don't trust, who you don't pay, is defending you it is reasonable to distrust that person. And with the horror stories defendants tell each other (too many of them true) about overworked PDs with no time, no experience, no compassion, no competence, it is all understandable. I don't know if Public Defender Jessica LaCambre, Mr. Gorman's PD, did anything wrong here. But I can say, WITH CERTAINTY, that this was a difficult case, a difficult client, difficult facts, and no client control. Bad day for the attorney, worse day for the client. I think we've all been there.
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<br />But.
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<br />Here's the things that interested and bothered me about the article. 1) The article states that the (bad) verdict capped off a contentious "Daylong trial." Really? All this was in a single day, so large a day that it had to be "capped off?". I don't know how things work in New Orleans, but wasn't there other things she could have done? If Mr. Gorman was going to testify, was there some mental defense that might have been pursued? Were there perhaps some legal flaws with the confession? Wasn't there SOMETHING that would have militated more than one day of trial? If 1 day is all that it takes in New Orleans to get, in essence a death sentence (by incarceration), then this is a bad jurisdiction indeed. That is a freight train that moves WAY TOO FAST. I my guy's getting that much time, I will make the DDA will earn it, thank you very much. And earning it means taking more than one day.
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<br />2) The jury convicted Mr. Gorman of the home invasion robbery by a vote of 10 to 2. The robbery that's going to get him 99 years. 10 to 2. 99 years. DO YOU HEAR WHAT I AM SAYING?!? A non-unanimous jury gets him 99 years? That's outrageous!!! What the fuck?!? And maybe Mr. Gorman had something going here, because two jurors surely DID buy what he was saying. I am being a little petty here, but maybe Public Defender Jessica LaCambre might have devoted a wee bit of time challenging this rigged procedure. It boggles my mind that a guy can get 99 years from a non unanimous jury. Oh, and since this was a grueling daylong trial, perhaps more time might have been spent picking the jury. Pure speculation here, but since Mr. Gorman is Black (his photo is in the article), and since New Orleans went through massive racial changes in its jury pool after Katrina (lots of African Americans left New Orleans after Katrina), maybe, just maybe, there were some Batson v. Kentucky issues here worth exploring? It's speculation, but I'm willing to bet 10 to 2 that I am right.
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<br />3) At one point Mr. Gorman was removed from the court because he was "disruptive," probably because of all those accusations he made against his Public Defender. According to the newspaper article, no explanation was given to the jury for his absence from the courtroom. Later, during that same (grueling) daylong trial, he was brought back into court so that he could be ID'd by the victim, after which Mr. Gorman testified. That sure doesn't sound right to me. Seems like there should have been a mistrial here, or at least a really strong admonishment by the judge.
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<br />Dennis R. Wilkins
<br />The New PD DudeDennis Wilkinshttp://www.blogger.com/profile/13556711089950824264noreply@blogger.com7tag:blogger.com,1999:blog-5651032.post-92134064303446995502011-09-01T15:27:00.000-07:002011-09-01T16:40:47.936-07:00Connick v. Thompson (2011) and Arizona v. Youngblood (1988) - Linked in OutrageI wanted to add an issue that I did not address in my last post about Connick v. Thompson (2011). To clarify, the facts of Connick v. Thompson are that D was convicted of an armed robbery. Later, D was prosecuted for murder, and D elected not to testify at his murder trial because of the prior robbery, and the fact that it could be used to impeach him. The robbery was used to elevate the murder to a death penalty case. It turns out that D didn't do the original robbery, and the DA knew it - they had overwhelming evidence that the robbery was committed by someone else, but they did not turn that evidence over to the defense. Blood from the perpetrator had been found, and the crime lab tested it, and found that the blood type was B. D's blood type was type O. The DDA never told the defense attorney about the blood of the perpetrator that was found and even tested, and the defense never knew to ask. The DDA had the completed test in his trial folder, showing that the perpetrator had type B blood, when the robbery trial began. No evidence was ever shown that the DDA knew what D's actual blood type was.
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<br />D was sentenced to death. After serving 18 years behind bars (He was very close to being executed at one point), D found out about the withheld evidence. With it, he was able to get both his murder and robbery convictions reversed. Because the evidence was so weak on his murder case, he was acquitted when the DA retried him. The robbery case was dismissed outright.
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<br />Thompson sued the DA's office, claiming that the DA deprived him of his civil rights by falsely prosecuting him, specifically, that the prosecuting DDA, as well as 3 other DDA's, knew about the withheld evidence, knew that it was exculpatory, knew that it proved another person committed the robbery, knew that that greatly impacted his murder case, but they deliberately withheld the evidence. The lawsuit was very successful. The jury sided with Thompson, and awarded him $14 million, one million for each year he was on death row.
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<br />The Supreme Court, in a 5-4 opinion written by Justice Thomas, reversed the lawsuit, and basically said that Thompson could NEVER succeed based on the facts of the case. Thompson had never shown that the DA ever knew about the withholding of evidence. The defense had never shown a "pattern of Brady v. Maryland (withholding exculpatory evidence) violations," required by the court to establish liability for the DA's office. In other words, the Court required Thompson to show that the DA had known about a pattern and practice of disregarding Brady duties and then failed to train the DDA's to properly comply with Brady duties. The fact that the New Orleans DA had had 4 other cases reversed for Brady violations was insufficient to show a failure to train the DDA's. Fun fact: Thompson never sued the DDA's who committed these egregious acts because, as the US Supreme Court has ruled before, individual DDA's working for the DA's office cannot be held personally liable for their acts. Final result for Thompson - he was framed by 4 different DDA's, spent 18 years in prison, 14 of them on death row, and he got ZILCH, even when a jury of New Orleans awarded him $14 million.
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<br />Here's why I write this post. In Justice Scalia's concurring opinion, joined by Justice Alito, Scalia wrote that, essentially, Brady material is purely that which is known by the prosecutor to be "favorable to the accused." In particular, because the DA had a blood test in this case that fixed the blood type of the perpetrator as type B, because the DDA did not know that D's blood type was type O, the DDA did not need to disclose it. In other words, when the prosecutor knows that there was blood taken at a crime scene that is likely from the perpetrator, and the police have had the crime scene test it, the DDA has no duty to turn it over UNLESS the DDA knows that D has a different blood type.
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<br />But here's the kicker - Scalia then quotes Arizona v. Youngblood (1988) 488 U.S. 51, 58, for the proposition that the prosecution team need not do ANY testing or preserving of evidence, and can only be dinged when the withholding is done in bad faith. Youngblood was a terrible decision, 6-3, that Scalia had joined. It turns out that it was a really, REALLY bad decision. You see, Larry Youngblood, the man with one eye who was convicted of kidnapping and raping a young boy for 3 days, and then convicted despite the fact that police failed to even TRY to get the semen evidence examined and instead had it "spoil" because they failed to refrigerate it, thus preventing Larry Youngblood's attorneys from having it analyzed themselves, yeah, THAT Larry Youngblood.
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<br />You see, after Larry Youngblood was convicted, the Arizona Supreme Court realized this was wrong and reversed his conviction, and let him go. Well, the U.S. Supremes stepped in, reversed the Arizona Supreme Court, and had Larry Youngblood sent back to jail. Although the majority opnion was not as obvious as Justice Stevens in its dislike for Larry Youngblood and the obviousness of his guilt (read Justice Stevens' opinion - it really is that bad. He basically says that, although he has misgivings with the majority opinion and the rule it was laying down, Larry Youngblood got a really fair trial and he was certainly guilty.), it is still pretty bad. The gist is: Hey, police are busy, they have no duty to help defendants and acquire evidence at the scene, or test it, or do much of anything to help the defendant because, well, we have a pretty busy system here. We can't go around questioning everything, especially convictions like these. So long as the police didn't CLEARLY have it in for Larry Youngblood, and they were just doing business like they always do, then Larry Youngblood is out of luck.
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<br />In 1998, Larry Youngblood got out of prison. Poor guy, while he was out of prison after the Arizona Supreme Court had temporarily freed him, he robbed someone of some stuff. With the extra time from the rape that he was convicted of, he didn't get out of prison until 1998. When he got out, he was sort of busy (and a little pissed off), and he failed to register as a sex offender. He was prosecuted for that, and his original attorney from his rape case, convinced of his innocence, handled the case again. This time, with new DNA techniques not available in the 1980's, Larry Youngblood was excluded as the rapist. Got that? It WASN'T him. It was another guy, someone who was in prison in Texas and who later pled guilty to the rape. Larry Youngblood dies in 2007, a broken man. From the state of Arizona he ZERO in compensation for his years behind bars. Here's the story: <a href="http://articles.latimes.com/2011/apr/03/nation/la-na-court-innocence-20110403">http://articles.latimes.com/2011/apr/03/nation/la-na-court-innocence-20110403</a>
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<br />Let me clarify my outrage. Justice Thomas and 4 other justices shit on Thompson and kick out his lawsuit. They tell him that, despite the fact that he was pretty much framed (I don't know what else you call it) on a robbery, which directly resulted in him getting the death penalty and sitting 18 years in prison, 14 of them on death row, despite the fact that when retried he was found not guilty of the murder (the robbery was outright dismissed), despite the fact that he sued the DA and got a jury to agree with him and give him $14 million dollars, he gets NOTHING. You see, the DA didn't know what his staff was doing, and it isn't his fault that they had no idea what exculpatory evidence even is. Oh, and dn't bother even TRYING to sue the 4 DDA's who saw the blood test results, knew what they meant and how exculpatory they were, yet refused to disclose them. You see, those guys are all immune from lawsuits because they were DDA's. Then, in the concurring opinion to this travesty, written by Scalia and joined by Alito, Scalia basically says, hey, what are you guys in the dissent talking about? This wasn't even Brady evidence, you see, and the DDA didn't even HAVE to disclose the blood test, because no one ever showed that he KNEW that it wasn't defendant's blood type. Yes, the police collected the blood. Yes, the police knew that it cmae from the perpetrator. yes, the crime lab had it tested. But, apparently, the DDA who prosecuted the D never bothered to find out what D's blood type was, and certainly never told the defense about said evidence. Scalia then quotes a rule which fucked a guy back in 1988 and laid down a bad broad rule to prevent the "obviously guilty" from requiring the cops to, you know, do their jobs. But Scalia never even mentions or alludes to the fact that in the very case in which that bad broad rule was laid down, that "obviously guilty" defendant, Larry Youngblood, was actually innocent.
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<br />BTW - For whatever it's worth, and it probably is worth little, both Mr. Thompson and Mr. Youngblood are black, and poor. I honestly believe that the latter fact is a LOT more important than the former, but that is how I see it. I have no problem calling our justice system racist, but they ar much more fervantly and militantly against the poor.
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<br />They have no shame. They really, honestly, truly, have no shame.
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<br />Denis R. Wilkins
<br />The New PD Dude
<br />Dennis Wilkinshttp://www.blogger.com/profile/13556711089950824264noreply@blogger.com1tag:blogger.com,1999:blog-5651032.post-28172271911923898792011-08-25T12:45:00.000-07:002011-08-27T08:43:28.923-07:00Actually Innocent? We Don't Give a Damn.This is a short post. I haven't posted in a year, so a lot of things happened that I didn't comment on. Here is a big one. In Connick v. Thompson (2011), the conservative majority of the U.S. Supreme Court ruled that even though a defendant was the victim of a prosecutor withholding exculpatory evidence, and a jury awarded him $14 million for the many years he spent on death row, he instead should receive nothing. You see, prosecutors are immune from lawsuits, and just because a prosecutor deliberately convicts an innocent man, withholding Brady material in the process, that doesn't mean you can sue his employer.
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<br />Here is a copy of the article from Slate.com: <a href="http://www.slate.com/id/2290036/">http://www.slate.com/id/2290036/</a> Enjoy.
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<br />Dennis R. Wilkins
<br />The New PD Dude
<br />Dennis Wilkinshttp://www.blogger.com/profile/13556711089950824264noreply@blogger.com1tag:blogger.com,1999:blog-5651032.post-91325963922569208242011-08-24T15:04:00.001-07:002011-08-25T12:59:22.719-07:00Another Update on William Richards, FVI00826 - Actual Innocence is a ShamI posted more than a year ago about an excellent granting of a habeas corpus petition by Judge Brian McCarville. The defendant is William Richards. His case number is FVI00826. The essence of the case is that he was accused of murdering his wife by bashing her head in. After three mistrials, he was convicted and sentenced to life imprisonment. Then he was able to obtain favorable DNA evidence, and show that there were serious with the evidence presented against him at his trial. I mean, serious. Like, they framed him. Oh, and an expert that was hot and heavy against him kind of fully recanted his testimony and/or it was all shown to be BS. Mostly anyway. One of the few times it has happened, and certainly the only time that I have seen it, Judge McCarville granted the habeas corpus petition. It is CERTAIN that if he is retried, he cannot be convicted. Not with what we now know.
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<br />Then, on 11-19-2010, the California Court of Appeal wrote and unpublished decision REVERSING Judge McCarville's excellent opinion. Appelleate Court Justice Hollenhorst wrote the opinion, and he was joined by McKinster and Richli. All three are right wing Republican tools. The opinion is as terrible as it is disingenuous. Here is my summary of the opinion:
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<br />Too bad, so sad. We don't believe your new "evidence." You may have fooled Judge McCarville, but you won't fool us. This new "evidence" should have been brought forward at trial, and in fact some of it was. So it isn't really new "evidence." And the jury didn't believe the defense then, so, again, too bad, so sad. Oh, and just because someone who is crucial to your conviction is later found to be a complete liar and kind of, sort of, mostly admits it, to some extent or another, again, too bad, so sad. You lose. Yeah, we suppose that "actually innocent" people are kind of, sort of entitled at least to a new trial. But not your guy. Oh, and did I mention that we think your new "evidence" isn't very good? Oh, and Judge McCarville didn't apply the correct standard. We could tell you the correct standard, but we are pretty busy up here, denying all your silly motions. The standard is something like: The new evidence must undermine the prosecution's entire case and unerringly point towrd his innocence. We realize this is an impossible standard, but we're going to hold you to it. Oh, and stop spending so many days on these stupid hearings for murderers, Judge McCarville - we're just going to crap on whatever you rule on anyway.
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<br />Oh, and there were a LOT of case citations - I'll spare you those. I suppose that I shouldn't get too indignant over this local travesty of justice, but I can't help myself. Let me clarify: I KNOW Judge McCarville. He isn't some bleeding heart liberal. He calls them mostly like he sees them, but like most judges in this county, he is pro-prosecution. Remember, they are all elected, and they don't get re-elected by letting people charged with crimes go free. If Judge McCarville spends the time to do a habeas corpus petition and grants it, you had better damned sure believe that that was the right thing to do.
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<br />The case is currently before the California Supreme Court. I don't expect the Court to reverse the Appellate Court. I have just about zero faith in the California Supreme Court on criminal justice issues. They are a mostly zombie-controlled, Republican-appointed bench. I met the Chief Justice recently and she seemed nice, but she is another former prosecutor plucked from convicting people and put on the bench. Some of the justices aren't too bad. I like some of Justice Kennard's opinions. Justice Werdegar too, sometimes. The newest Justice, who hasn't been confirmed yet, Goodwin Liu, is promising. But he is just one guy. I am giving the California Supreme Court short shrift here because they have written some awful opinions in the criminal defense world for about 16 years now, when Rose Bird was forced off the bench. If they reverse the 4th Circuit, Division 2, I will be amazed. I will personally sing their praises. But I fully expect them to follow Justice Scalia's dissent (joined by Justice Thomas) in In re Davis (2009) 130 S.Ct. 1, wherein Scalia stated: "This Court has NEVR held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is "actually innocent."
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<br />In other words: Fuck you. We don't care how "actually innocent" you may be. So long as you got a "fair trial," you will be punished. Period. Finality is king. Never mind whether witnesses recant their testimony. Who cares? By the way, the remedy in the Troy Davis case was to remand the case back to the district court for a new habeas petition, which everyone agreed was without any power. Said petition was promptly denied, and the denial was then affirmed by the Eleventh Circuit. Troy Davis is now getting closer to execution. He got his "actual innocence hearing," and he got to call various witness that showed 9 of 11 witnesses who testified against him at trial recanted their testimony. 9 of 11? Really? Would 10 of 12 have done the trick? How about if all 11 had recanted? The U.S. Supreme Court refused to hear the Mr. Davis's appeal from the habeas petition denial. Here is a good discussion of where Troy Davis is at now: <a href="http://www.habeasbook.com/2011/04/another-dead-end-for-troy-anthony-davis/">http://www.habeasbook.com/2011/04/another-dead-end-for-troy-anthony-davis/</a>
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<br />The lesson here? Don't get convicted the first time. Because if you do, even if you can later prove you were actually inocent, to just about ANY degree of certainty, so long as you got a "fair trial," you're guilty. Period.
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<br />Dennis R. Wilkins
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<br />Oh, and I suppose that I am now the New PD Dude.
<br />Dennis Wilkinshttp://www.blogger.com/profile/13556711089950824264noreply@blogger.com10tag:blogger.com,1999:blog-5651032.post-33291608588519876462011-08-22T15:47:00.000-07:002011-08-22T16:01:27.798-07:00I was fooledI admit it. I supported Barack Obama. I was fooled. He is a corporatist, and he does not have the interests of most Americans at heart. Don't get me wrong - I am a Democrat, a liberal, a progressive, and I can't stand any of the Republicans running. But I am really and truly disappointed in Barack Obama. I will vote for him come next November. I have to. Any of the Republican pinheads running will appoint monstrosities to the U.S. Supreme Court. Justices Elene Kagan and Sonya Sotomayor have turned out okay for the criminal defense field. Not great, but it could have been a LOT worse.
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<br />But it will be with a sad and heavy heart that I will push the button for this man. He cares only about his campaign contributions, and he isn't interested in helping the poor, or even the middle calss. Hillary would have been better. Joe Biden wouldn't have, of course, but at least it would have been honest. That said, Biden would have protected unions. In fairness, I was pulling for John Edwards while he was putting it into that other woman, while his dying wife was, well, dying. So I've been fooled before.
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<br />All of that said, I can honestly say that as I have grown older, it seems clearer and clearer that our system is hopelessly corrupted toward the wealthy, and capable of only a minimum of fairness toward those seeking justice who don't have cash. More often than not, the poor who are charged with a crime get jailed and have to await a trial that stretches further and further out. The division isn't between guilt or innocence many times, but on whether the person charged is savvy enough to know the rules of the system. But overall, the system that I have seen, and keep seeing is blanketed with a hateful attitude toward the poor, a distaste for those of color, and most seriously, an anipathy towards the rule of law, the presumption of innocence and the requirement that DA's have to prove guilt beyond a reasonable doubt.
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<br />I also see the Public Defender as an entity more and more under attack. Whatever my feelings toward a particular administration, there is a constant and growing fear that the Public Defender will be outsourced to those who will do the job far cheaper, and with just about zero care for clients.
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<br />I will talk later.
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<br />Dennis R. Wilkins
<br />The Guest Blogger
<br />Public Defender Dude
<br />Dennis Wilkinshttp://www.blogger.com/profile/13556711089950824264noreply@blogger.com3tag:blogger.com,1999:blog-5651032.post-61062605534671967422010-07-17T14:17:00.000-07:002010-07-17T15:22:09.918-07:00Connect the DotsI 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.<br /><br />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: <a href="http://www.mercurynews.com/politics-government/ci_15514924?nclick_check=1">http://www.mercurynews.com/politics-government/ci_15514924?nclick_check=1</a> 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: <a href="http://www.courtinfo.ca.gov/opinions/documents/S151961.PDF">http://www.courtinfo.ca.gov/opinions/documents/S151961.PDF</a> , and People v. Gastello - link here: <a href="http://www.courtinfo.ca.gov/opinions/documents/S153170.PDF">http://www.courtinfo.ca.gov/opinions/documents/S153170.PDF</a>. Both were handed down on June 24, 2010. Both are listed in PDF format because everyone has Adobe Acrobat.<br /><br />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.<br /><br />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.<br /><br />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?<br /><br />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.<br /><br />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.<br /><br />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.<br /><br />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.<br /><br />Dennis Wilkins<br />Deputy Public Defender<br />The Guest PD BloggerDennis Wilkinshttp://www.blogger.com/profile/13556711089950824264noreply@blogger.com82tag:blogger.com,1999:blog-5651032.post-1975233324341951772010-05-26T13:02:00.000-07:002010-05-26T21:06:01.252-07:00Further Reflections on the Marijuana Legalization Initiative in CaliforniaI 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: <a href="http://ballotpedia.org/wiki/index.php/California_Marijuana_Legalization_Initiative_(2010">http://ballotpedia.org/wiki/index.php/California_Marijuana_Legalization_Initiative_(2010</a>)<br /><br />My post this morning generated a pretty cool response from a site called Legal Blog Watch. Here is the post: <a href="http://legalblogwatch.typepad.com/legal_blog_watch/2010/05/public-defender-laments-inevitable-failure-of-pot-legalization-referendum.html">http://legalblogwatch.typepad.com/legal_blog_watch/2010/05/public-defender-laments-inevitable-failure-of-pot-legalization-referendum.html</a> 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.<br /><br />Well, then I started looking and I found the Marijuana Policy Project at: <a href="http://www.mppcalifornia.org/home/">http://www.mppcalifornia.org/home/</a> 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 <a href="http://www.mpp.org/">http://www.mpp.org/</a> This young guy is VERY well spoken. In fact, he should be the spokesperson for at least some of the legalization effort.<br /><br />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?<br /><br />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.<br /><br />We can only hope, right?<br /><br />Dennis R. Wilkins<br />The Guest PD BloggerDennis Wilkinshttp://www.blogger.com/profile/13556711089950824264noreply@blogger.com8tag:blogger.com,1999:blog-5651032.post-53369405330942400402010-05-26T01:24:00.000-07:002010-05-26T12:33:27.595-07:00The Marijuana Legalization Initiative on the November BallotIt'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: <a href="http://www.google.com/hostednews/ap/article/ALeqM5iLZNYd6C9SGpa2oeiZIqT-HKVrCQD9FMCM103">http://www.google.com/hostednews/ap/article/ALeqM5iLZNYd6C9SGpa2oeiZIqT-HKVrCQD9FMCM103</a> - and here's what Grits for Breakfast, an excellent PD Blog had to say: <a href="http://gritsforbreakfast.blogspot.com/2010/05/news-flash-drug-war-colossal-failure.html">http://gritsforbreakfast.blogspot.com/2010/05/news-flash-drug-war-colossal-failure.html</a> ]and the marijuana front has been an even bigger failure. Marijuana is not even as dangerous as alcohol, which has been legal since Prohibition.<br /><br /><strong>And it will fail at the ballot box</strong>. Here's why:<br /><br />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.<br /><br />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."<br /><br />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.<br /><br />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.<br /><br />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.<br /><br />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.<br /><br />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.<br /><br />But the initiative, unfortunately, will fail. Because no one who sounds coherent will stick their neck out to defend it. And that is sad.<br /><br />Dennis R. Wilkins<br />The Guest PD BloggerDennis Wilkinshttp://www.blogger.com/profile/13556711089950824264noreply@blogger.com3tag:blogger.com,1999:blog-5651032.post-54454008783030974582010-05-24T21:50:00.000-07:002010-05-24T22:16:20.684-07:00Update on William RichardsI 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.<br /><br />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.<br /><br />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.<br /><br />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.<br /><br />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.<br /><br />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.<br /><br />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.<br /><br />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.<br /><br />Dennis Wilkins<br />The Guest PD BloggerDennis Wilkinshttp://www.blogger.com/profile/13556711089950824264noreply@blogger.com0tag:blogger.com,1999:blog-5651032.post-28738753492832464342010-05-19T22:36:00.000-07:002010-05-24T21:32:14.984-07:00Thinking about Kyles v. WhitleyI 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.<br /><br />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.<br /><br />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.<br /><br />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.<br /><br />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.<br /><br />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.<br /><br />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:<br /><br />"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."<br /><br />Hmmm. In other words, there is NO WAY that this guy culd ever win, so why are we reversing his conviction? Oops.<br /><br />Dennis R. Wilkins<br />Guest PD BloggerDennis Wilkinshttp://www.blogger.com/profile/13556711089950824264noreply@blogger.com3tag:blogger.com,1999:blog-5651032.post-89843839465361594082009-08-11T21:05:00.000-07:002009-08-11T21:55:46.418-07:00A DNA Exoneration close to home.An amazing thing happened in my courthouse yesterday: <a href="http://blogs.cwsl.edu/news/2009/08/10/california-innocence-project-obtains-reversal-of-12-year-old-murder-conviction/">http://blogs.cwsl.edu/news/2009/08/10/california-innocence-project-obtains-reversal-of-12-year-old-murder-conviction/</a> Here is the text:<br /><br />"Today, 16 years to the day after the murder of Pamela Richards, San Bernardino County Judge Brian McCarville granted the California Innocence Project’s request to reverse the murder conviction of her husband William Richards. Finding that new evidence points “unerringly to innocence,” Richards’s 1997 conviction of murdering his wife in their Hesperia, Calif., home was thrown out. Richards was convicted for the 1993 murder after two trials ended in hung juries.<br />The reversal marks the successful conclusion to an eight year-long process. In 2001, Richards contacted the California Innocence Project at California Western School of Law, a non-profit clinical program in which law professors, lawyers, and law students work to free wrongfully convicted prisoners in California. He maintained his innocence in the murder and sought the Project’s help in requesting a reversal of his conviction.<br /><br />The California Innocence Project obtained new DNA testing on the murder weapon. Test results revealed that an unidentified male held the murder weapon and struggled with the victim. DNA testing on hair from under the victim’s fingernails also pointed to another person other than Richards. This evidence countered the prosecution’s claim that no one other than Richards or his wife were at their home on the night of the murder.<br /><br />During the Richards trial, evidence was presented indicating that a “bite mark” on the victim’s hand could have only come from Richards or two percent of the population. However, the testimony provided by the bite mark expert was based on incomplete information and poor photos. Experts obtained by the Project were able to correct the distortion in the photographs and testify that Richards could not have been the person responsible for the “bite mark.”<br />The California Innocence Project also argued that fiber evidence may have been falsified by someone employed by the County. The prosecution claimed that a tuft of 15 light-blue fibers were found in a tear in the victim’s fingernail. According to the prosecution, the fibers matched those of the shirt Richards was wearing the night of the murder. However, members of the California Innocence Project discovered that photos taken just after the victim’s autopsy clearly showed no such fibers in the fingernail. After the autopsy, the victim’s fingers were severed and sent to a county criminalist for review. Sometime after that, the fibers appeared.<br /><br />“We have been working on this case almost as long as the California Innocence Project has been in existence,” said Justin Brooks, Professor at California Western and Director of the California Innocence Project. “To say that I’m ecstatic with today’s decision is an understatement. William Richards has been living a nightmare for 16 years. First he had to deal with the murder of his wife and then he had to face his wrongful conviction and incarceration for the crime. What could be worse?”<br /><br />Jan Stigltiz, Professor at California Western and Co-Director of the California Innocence Project argued successfully in his closing that the case was purely circumstantial.<br /><br />“Other than the fact that Richards came home and found his wife, there was no evidence linking him to the crime. These cases are hard to win,” said Stiglitz. “But if you get a judge like McCarville who is willing to take a fresh look at the evidence, then wrongful convictions can be corrected.”<br /><br />Founded in 1999, the California Innocence Project is a law school clinical program dedicated to the release of wrongfully convicted inmates and providing an outstanding educational experience for students enrolled in the clinic. The California Innocence Project reviews more than a 1,000 claims from inmates each year and has earned the exoneration of eight wrongfully convicted clients since its inception."<br /><br /><br />I have only a few notes. First, good job Judge McCarville. It takes courage to make the right ruling, and he clearly made it. Second, how, EXACTLY, did the photos showing that the fiber evidence was fraudulent get found, and why weren't they produced before trial? The key piece of evidence that likely lead the jury to convict was the fiber on the victim's broken fingernail, that was likely from D's shirt. That sounds big to me. There are photos of the V's fingers, cut off after the autopsy, that show the fibers in the broken nail. Pretty damning. But, behold, apparently sometime after the trial the autopsy photos show up, and the autopsy photos show the fingers before they were removed from the body, and there are no fibers in the broken fingernail. In other words, the fiber was not present at the autopsy, but was there AFTER the fingers were cut off and sent to the crime lab. How were those autopsy photos not produced before the trial? Third, How was the DNA missed? Was this a case where the DNA wasn't as reliable as it is now? Was it too expensive?<br /><br />Finally, how many times will this have to happen for everyone else to realize that our criminal justice system is badly broken? How many guys are out there who didn't get their case before a decent judge? Who didn't have DNA evidence to "prove" that they were wrongly convicted? William Richards is lucky that the California Innocence project exists, that they took an interest in his case, and that they worked their asses off for him. Too many times, I am certain, the wrong guy gets convicted because everyone is in a foul mood about the crime, the defense attorney is not on the ball or is overworked, the DA is focused solely on convicting the guy rather than doing what is right, the police are too interested in closing their books to investiagte properly, and the judge is too focused on making sure the DA gets a fair trial, rather than the D. The juries are made up of ordinary, but usually conservative, people who want to do "justice," rather than follow the law. Reasonable doubt gets forgotten in the shuffle. In other words, the entire system evades accountability because no one is actually accountable. And even if the right guy does get convicted, when corners are cut, we lose any sense of certainty that we are, in fact, being just in punishing this person. That isn't right.<br /><br />I know that our system is not perfect. But we should not have such drastic sentences, and certainly should not have the death penalty, when there is so much uncertainty and unfairness in our system. I wouldn't want to treat those accused of crime any worse than I would expect to be treated if I were accused. William Richards got screwed, and it is our fault.<br /><br />What are we going to do about it?<br /><br />Dennis R. Wilkins<br />The Guest BloggerDennis Wilkinshttp://www.blogger.com/profile/13556711089950824264noreply@blogger.com11tag:blogger.com,1999:blog-5651032.post-90099962420466647492009-08-04T21:10:00.000-07:002009-08-04T21:34:48.860-07:00Wow, what a long timeI have been very busy with life, so I haven't posted in 6 months. I see that PDDude hasn't posted either.<br /><br />I am very burned out with being a deputy public defender. I used to enjoy the job, but now I don't. Suffice to say that I am an employee, and an employee who has been taught to fear for his job. Very sad that it has come to this.<br /><br />There was a time when I didn't care. But now I have kids to support. A mortgage to pay. I have to conform to what the bosses want. I have come to realize that I must do exactly what they say, or I will be fired. It isn't about protecting my clients. It is about satisfying my bosses.<br /><br />I believe that this country, and the State of California, are at a very crucial stage. Our legal system is melting down. The current budget crisis is goign to get worse and worse because it is the natural result of a defective system. We require an informed and motivated citizenry to make our democracy work. But we are overwhelmed on the one hand with ill-informed older people who "think" they understand what is going on, but really don't, and a swelling population of illegal aliens who have no say in the system. The poor are rapidly forgetting that that they have the power to vote, the illegals have no power to vote, and the old white guys who still have sway want something that is impossible to get - a rollback to the 1950s. we have a system that is beset with gridlock and preyed upon by those wealthy interests, such as banking and insurance industries, and the prison-industrial system, who can control our state government with a pittance of corrupt dollars. The disconnect is amazing.<br /><br />Okay, enough whining, I guess. I still hate those old-style liberals who would constantly moan about things but would never actually try solve them. How about some predictions:<br /><br />Predictions #1: The budget crisis will get worse. The only way to save our system is to honestly re-think how we do just about everything in Calfornia. Too long we have allowed ourselves to think "the little things don't matter." They do. WE CANNOT AFFORD THREE STRIKES - IT IS KILLING US. I was against Three Strikes before it was popular to be against it. I have railed against Three Strikes for moral reasons and for fairness reasons. Now we are actually closing schools to feed the beast. It's time to re-think crimes, sentencing, prisons, jails, mental health as it relates to crimes, the works. We cannot afford the system that we have, and destroying our future to keep people locked up is madness.<br /><br />Prediction #2: The feds will not be able to get california to release inmates. In a way, it is a blessing. The anti-federal government attitude is going to harden the already bankrupt Republican Party in california, further alienating them from normal people. The 9th Circuit just ordered the release of 45,000 prisoners within 2 years. Count on the state to appeal, and the U.S. Supremes to REVERSE. It will be 5-4, but it will be reversed. And this is a good thing. Because then the State will be forced to solve this crisis.<br /><br />Funny thing about crises - they often make the impossible possible. At some level too many people are actually worrying about services in California. Like Schools. Or libraries. Or electricity. Or garbage collection. Or health care. The costs of these things are set to spiral out of control in the next few years. We will have to fix these things. And in doing so, I think that it will make us stronger as a State.<br /><br />Dennis R. Wilkins<br />The Guest BloggerDennis Wilkinshttp://www.blogger.com/profile/13556711089950824264noreply@blogger.com3tag:blogger.com,1999:blog-5651032.post-49828298968825799422009-01-02T20:01:00.000-08:002009-01-02T21:25:10.438-08:00The Meltdown ContinuesTwo articles sum up what's going on with the prison crisis in California. The prison crisis is best understood when we juxtapose our ridiculous sentencing policies, such as 3 Strikes, with our ongoing unreality of finances in California. They are both part and parcel of denial of reality by those who really run this state - the People of the State of California.<br /><br />First the budget crisis. From "California Progress Report," an online publication about California politics and issues:<br /><br />"Schrag: A Series of Bad Decisions Have Compounded Current Crisis<br />By Peter Schrag<br /><br />This is usually the time for looking ahead, making resolutions, wishing for greater things. But in California we've locked ourselves into a mind-set and governmental processes that look like nothing so much as deliberate attempts to avoid thinking about the future, much less dealing with it.<br /><br />Through term limits, we've created a Legislature that has neither an institutional memory nor members who can expect to be rewarded for long-term success, and thus, with rare exceptions, lack any motivation for leadership or inclination to sacrifice and compromise in the present.<br />We have refused to change a supermajority requirement, one of the few such absurdities in America, which allows any minority to veto any budget or tax increase. If five Republicans – three in the Assembly and two in the Senate – had been willing to negotiate such a compromise, the state would have had a budget long ago.<br /><br />Their loyalty to an ideology trumps all others. This is the ideology of Grover Norquist of Americans for Tax Reform: Starve the beast. It is that ideology as much as any that has put the country into the fiscal and regulatory mess it's in now.<br /><br />We have tied ourselves into knots with a combination of governmental decisions and waves of voter initiatives whose most common characteristic, whether liberal or conservative, is short-sightedness. Among others:<br /><br />• Unfunded multibillion-dollar bond issues for stem cell research, high-speed rail, children's hospitals and for paying off past debts. With interest, the long-term cost of each will be double the advertised price.<br /><br />• A $6 billion annual "spending increase" to replace local government funding lost through an impulsive cut in the car tax.<br /><br />• Autopilot sentencing laws hastily passed in the wake of one heinous crime that continue to cost billions in prison expenses.<br /><br />• An inflexible class-size reduction program pushed through without study or serious debate by a petulant governor wishing to punish the teachers unions. It costs $2 billion a year.<br /><br />• An unfunded initiative extending pre- and after-school programs that costs close to $500 million a year.<br /><br />• Corporate tax loopholes written into the tax code in flush times that easily matched the increased spending on education and other programs that were enacted in the same years.<br /><br />• And the grandfather of them all: the convoluted, accountability-defying, state-local tax and revenue system spawned thirty years ago by the passage of Proposition 13 and the long string of state measures to bail out the locals that have been enacted in the years since.<br /><br />Those bailouts inadvertently taught all the wrong lessons: that you can have your local property tax limitations and good services, too; that the way to solve any major problem was through the initiative, not through electoral politics; that the legislature and governor who bailed you out were irrelevant and often worse; that the citizen's first concern was not community but what he could get from it.<br /><br />Those ballot measures were almost always designed not to be respectful of political minorities – their very essence was to get a 51 percent majority – or to serve the state's long-term interests.<br /><br />They were usually drawn by deep-pockets groups, and advertised to address an issue of the moment. As new problems arise, the remedy is a fix for problems present, rarely for problems yet to come.<br /><br />It's long been a truism that we're living on the investments and foresight of the past: our once-pioneering highway systems, now in terrible disrepair; the state's unmatched public universities, now increasingly struggling against the effects of declining public support; the statesmanship that created a great water system by linking the need for water supplies in the south to flood control in the north.<br /><br />Like much of the rest of the state's infrastructure, that too is now superannuated, the victim of chronic neglect. The miracle of the infrastructure – and the tribute to its farsighted creators – is that it served the state so well for so long.<br /><br />It helped drive the great California boom of the postwar decades – attracted the talented, ambitious men and women who made California the great center of technology and creativity it became. They didn't come for low taxes, but for good schools, outstanding research universities, parks, recreation and transportation.<br /><br />California historian Kevin Starr asks where the great leaders of California's future will come from. Where are the Pat Browns, the Clark Kerrs, the Earl Warrens, the Goodwin Knights, the Phil Burtons? Where are visionaries like the philosopher Josiah Royce, born in 1855 in Grass Valley, who believed that Californians would always understand that their interests lay in community, not self-aggrandizement?<br /><br />What they shared was a vision of the future, a fundamental optimism about this place. It's that kind of hope and optimism, and that kind of people that, at this time of year especially, are so much worth wishing for.<br /><br />Peter Schrag is the former editorial page editor of the Sacramento Bee. This article is published with his permission. Posted on December 30, 2008." Here is the website where I got this from:<br /><br /><a href="http://www.californiaprogressreport.com/2008/12/schrag_a_series.html">http://www.californiaprogressreport.com/2008/12/schrag_a_series.html</a><br /><br />Juxtapose this with the prison crisis. From an online article by New American Media.<br /><br />"Prison Overcrowding Crisis Unhealthy for All Californians<br /><br />New America Media, Commentary, Donna Willmott, Posted: Dec 04, 2008<br /><br />Editor's Note: California prisons have become the largest mental health system for the poor, the largest battered women's shelter, and the largest system of public housing, observes NAM contributing writer, Donna Willmott, M.P.H. Willmott is the Family Advocacy Coordinator at Legal Services for Prisoners with Children and teaches in the Health Education and Community Health Studies Department of City College of San Francisco.<br /><br />As a public health professional who has spent over 10 years advocating for prisoners' rights, I am dismayed to see the health of prisoners once again become a political football.More than two years ago, the federal courts acknowledged what every prisoner in California already knew – that there has been an "unconscionable degree of suffering and death" in our prisons. With all due respect to those who are working under the <a href="http://www.creditworthy.com/3jm/articles/cw31898.htm" target="blank">federal receivership</a> to reform prison medical care, most of the systemic issues that underlie substandard care have, in our clients' experience, remained essentially unchanged. While the Receivership has succeeded in hiring a new cadre of qualified medical providers, the fact remains that progress has been painfully slow for the 178,000 prisoners trapped in this system, and many will continue to suffer needlessly in the meantime.<br /><br />Overcrowding is at the root of this paralysis. The Receivership proposes to build 10,000 new medical and mental health beds, at a construction cost to taxpayers of over $7 billion dollars. Even if this project had the support of the legislature and received the required money, the crisis would not be solved. It's not possible to build and maintain these facilities, then recruit and retain sufficient numbers of well-trained staff for this constantly expanding enterprise without bankrupting the state. Without shrinking the prison system, it will be impossible to provide the required constitutional level of medical care to prisoners.<br /><br />Decades of failed public policy frame this crisis. Years of a tough-on-crime approach have spelled disaster for the health and well-being of poor people and people of color who are incarcerated at dramatically disproportionate rates. We have tried to use prisons as an answer to social problems, with devastating results. Our prisons have become the largest mental health system for the poor, the largest battered women's shelter, and the largest system of public housing. The social cost of decimating our already frayed safety net in order to expand prisons is beyond calculation. We sacrifice precious community resources to maintain a prison system that creates instability, ill health and disease, while failing to keep us safe.<br /><br />Perhaps taking a page from history will help us envision a new solution to this crisis. Over 150 years ago, Rudolf Virchow, the founder of "social medicine," was sent by the German government to report on the causes of a devastating 1848 typhus epidemic. Instead of recommending the simple solution of more doctors and more hospitals to avoid catastrophic loss of life in the future, Virchow called for full employment, universal education, and agricultural cooperatives as the path to preventing future epidemics. He analyzed the root causes of the epidemic, and called for a fundamental reconstruction of society to create conditions in which people could be healthy.<br /><br />If Virchow were with us today, it's likely that he would be horrified by the idea of building 10,000 beds for prisoners who are extremely frail or mentally ill, people whose incarceration couldn't possibly serve public safety. He would no doubt want us to put our resources into sentencing reform, releasing low-risk prisoners, redirecting our state budget towards universal healthcare, quality public education, training and employment opportunities, and expanding drug treatment. In short, we should be ensuring the conditions in which people can be healthy as the basis for safe communities.<br /><br />If Californians continue to pour billions into massive incarceration, it will mean more pink slips to school teachers, more children turned away from their doctors, more seniors denied in-home aid, more families forced into poverty and homelessness. What will it take to bring health care to California prisoners? It'll take a new way of looking at crime and punishment, a fundamental shift in our priorities and a commitment to social equity as the foundation for public safety. Bricks and mortar can't solve this one." Here is the website where I got this from:<br /><br /><a href="http://news.newamericamedia.org/news/view_article.html?article_id=052dc71bc4ce373b68987e05bdcea735">http://news.newamericamedia.org/news/view_article.html?article_id=052dc71bc4ce373b68987e05bdcea735</a><br /><br />Put these two together and we have a very clear picture of where we are and where we are going: nowhere fast. Our economy is melting down, and we cannot afford to pay for the basics. Our infrastructure has fizzled. And Three Strikes, as well as the bloated, horrifyingly bad and ridiculously expensive prison system in California is still a major cost in all of this. But no one, NO ONE is openly talking about sentencing reform.<br /><br />Why? Why?<br /><br />I believe it is because so many people have been such a huge, whopping lie about our cruel, unfair, and unrealistic sentencing policies, and their social costs, that standard reform is now impossible. The system will have to melt down, complete with a massive reduction in social services statewide, coupled with prison riots, for a full sentencing reform commission to be called into action. And even then change will be too slow.<br /><br />No, folks, I'm afraid that we have to lose a LOT more money in California before we ever agree to actually fix this system. But it will happen. Sooner than you think.<br /><br />Dennis Wilkins<br />The Guest PD BloggerDennis Wilkinshttp://www.blogger.com/profile/13556711089950824264noreply@blogger.com2tag:blogger.com,1999:blog-5651032.post-6464520372121450162008-12-10T19:51:00.000-08:002008-12-10T20:29:25.902-08:00The Mental Health SystemI mentioned in my last post, a month ago, that I am doing a new area of criminal defense. I'm still a PD, but I now handle those defendants who have been found Not Guilty by Reason of Inasanity (NGI), and are being held within the web of the criminal mental health system. It is a frightening system, and that is being said by an attorney.<br /><br />First, juries are notoriously skeptical of NGI defenses in the first place, so I don't get many "close" cases. I have two cases, out of around 90, where the defendant was found NGI after a jury trial. The rest pled (or did a "slow plea" court trial in front of a judge) into NGI land. The vast majority of defendants who went into NGI land by plea have done far more time than they would have had they simply worked out a deal in the first place. Let me be clear: I haven't seen one case where the defendant isn't at a minimum, mentally ill. I have a tiny number of cases where the mental illness is in remission, but they were clearly mentally ill at one time, and were almost certainly mentally ill at the time of the crime. Whether they were actually NGI at the time of the crime we will likely never know, but a fair number would not have passed muster in front of a jury. The irony is that the vast majority of my clientele would have done far LESS time in prison than they end up doing in the mental institution.<br /><br />But that is only where the fun begins. Under the NGI system, defendants can be extended past their maximum commitment date (based on their plea) every two years. They get a jury trial in extension cases, court trial when it is a life case. But some of these guys are so institutionalized that they don't want a trial. They hate being in a mental institution, but they have no idea where else they would go. So they end up begging to admit the extension and stay in. And the social workers and mental health workers constantly prey on their insecurities and try to get them to admit petition xtensions, "for their own good." Those with a life sentence never reach their maximum time, so the trial they would get is very weird (PC 1026.2 - Burden of proof on defendant, and trial is by court, not jury) and difficult to win. Lifers do a lot of time, but then again, lifers in prison do a lot of time as well.<br /><br />The cost to house defendants at one of the mental institutions in this state is $130,000+. Many of my defendants are nowhere near violent enough to justify being in a mental institution (some are, of course), but the state hasn't made anywhere else available to put them. We have something called the Conrep program, but its capacity is staggeringly, woefully inadequate for the demand. Plus, Conrep picks and chooses who they want, such that the people they take are really not worthy of such close scrutiny, but ought to be released outright. And the mental hospitals (like Patton State Hospital or Metropolitan State Hospital) simply never want to let to let NGI defendants back into the community outright - they steer their huge patient loads toward Conrep, even when Conrep has no place to put them (and no incentive to take them).<br /><br />Even though I'd rather not simply release these guys to the community without some sort of outpatient treatment, there really isn't any. The choice is keep them in an institution that costs $130,000 per year, or nothing. The LPS system isn't any better, because many of those guys are also housed at Metropolitan State Hospital, but on a different wing.<br /><br />I have people that I am trying to get out (and some that I have successfully gotten out) who really only need minimal help. But the mental institutions (and the DA, who fights with me on just about everything) won't let anyone go without a fight, and when they do let someone go they boot them in the ass on the way out. And there is a viciousness in this system that is frightening. I had a guy who had been in a mental institution for 13+ years and we did his trial. He was adamantly opposed to the idea that he was mentally ill (his attorney (me) respectfully disagreed), his case was nonetheless a decent case. His actions had been relatively benign on the unit, and he pretty much refrained from fighting and the like. But when we went to trial to fight his extension, at trial the state's doctors diagnosed him with an Axis II Anti-Social Personality Disorder, an affliction I like to call the "asshole diagnosis." After treating this guy for 13+ years, no one EVER realized he had an Anti-Social Personality Disorder until he decided to go to trial for the first time. THEN they stick him with that bogus diagnosis. Mean, very mean.<br /><br />As I said, a broken system. I will post more later within a week.<br /><br />Dennis Wilkins<br />The Guest PD BloggerDennis Wilkinshttp://www.blogger.com/profile/13556711089950824264noreply@blogger.com4tag:blogger.com,1999:blog-5651032.post-53264608507875023222008-11-16T11:04:00.000-08:002008-11-16T11:41:04.691-08:00Has it Really Been THAT Long?Awesome election results. The senate races in Alaska, Minnesota, and Georgia are all still pending. I hope that Lieberman loses his chairmanship of the Homeland Security Panel, but I won't hold my breath.<br /><br />I haven't posted in months because I have been killing myself with work. It seems that I have been under fire from the moment I went into my new position, and I don't like being where I am at in my life professionally. Suffice it to say that if I didn't have a wife and children to support that I would have left the public defender long ago.<br /><br />Or would I? You know, most of the private defense attorneys I have met are motivated primarily by money. Not that I wouldn't be as well if I were a private attorney. It is critical to get paid for what you do, and legal clients, ESPECIALLY in the criminal justice realm, aren't know for being thankful. I have had many a client promise to write a nice thank-you note after a not guilty disappear, only to reappear again with a new charge with no letter of thanks to be found. Only requests for more and better work.<br /><br />Years ago I wrote a motion to suppress for this guy on a drug charge. I got the motion granted - the DA essentially conceded without filing a response. About two years later the same guy comes back with a new drug charge, but this time with a legal search. He starts lambasting me about how I'm not working for him, and how he was able to get a similar charge kicked out two years ago because "everyone knew he was falsely accused." Seriously - he didn't even remember that I was the guy who got his case kicked two years earlier. And he went on and on about how innocent he was. I asked him whether he was as innocent now as he had been then, and he said yes. That was the only really honest answer I got from him.<br /><br />But the pressures and the options with being with the PD are sometimes very different than private work. A few years ago a private attorney I know admitted that he loved the way I could talk to my clients. I basically don't take any crap from my clients. I fight like hell for them, but I don't pull any punches with them either. People, especially criminal defendants, are basically terrified of going to jail/prison (who wouldn't be?) and they constantly want you to tell them whatever it is they want to hear. "Yes, I know that you're not guilty and we are going to win at trial, despite all that pesky evidence against you." I tend to be brually honest with my defendants, believing that it's beeter they know more than less about their defense. But he couldn't do that, because if he did, his clients would up and leave him and go to someone who says what they want to hear.<br /><br />The private attorneys I talk to make it clear that they must engage in a PR offensive with their clients most of the time. So many attorneys can spin a line of BS about how good they are that what client can actually tell how good or bad the attorney is until the results (i.e. NG? Evidence suppressed? DA won't file? Etc.) are in? And even then, the worst case a defense attorney can get is a "sure winner" because those are the ones that hurt the worst to lose and make us all doubt that we know what we are doing.<br /><br />I watched a 1538.5 five years ago where a private attorney argued with a straight face that the cop cannot follow a guy around for a few miles JUST BECAUSE HE LEFT A BAR AT 2:00 A.M. I mean, really, police can't just follow some guy around for a few miles because they leave the bar at closing time. "Was the car weaving, officer?" "Why, yes it was. And your client rolled the stop sign as well. That's why I wrote all that stuff in my report." "Your Honor, this just isn't fair, following my client home from a bar and waiting for him to mess up. It's a predatory practice, your Honor." Yes, the attorney really did argue that. Note that he never actually disagreed with the officer, he just got offended that the cop would wait at the bar until closing time and follow drivers home.<br /><br />It just seems like, for the private attorney, the issue isn't whether the isues are good, but whether the client can pay.<br /><br />That being said, having a boss and a massive caseload sucks. I want to help people, bt I also don't want to go to an early grave because I wanted to help. I don't want my epitaph to be: "Here lies a Deputy Public defender who could defend, he won his fair share of cases but in the end, he worked too hard for his pay, he was emotionally distant from his family at the end of the day, so to his widow the life insurance please send."<br /><br />Great election. Let's see if Obama will close Guantanamo now. Let's see if I can post a bit more frequently now.<br /><br />Dennis Wilkins<br />The Guest PD BloggerDennis Wilkinshttp://www.blogger.com/profile/13556711089950824264noreply@blogger.com3tag:blogger.com,1999:blog-5651032.post-33191792979253153382008-09-08T09:25:00.000-07:002008-09-08T10:19:59.138-07:00Deeper Musings About Sara PalinThe polls are shifting not so well for <span class="blsp-spelling-error" id="SPELLING_ERROR_0">Obama</span> (Tremors!) and there are lots and lots of theories. I am swayed by the idea that Sara <span class="blsp-spelling-error" id="SPELLING_ERROR_1">Palin</span> is having an impact on the race. Conservatives love her, and they are rallying around McCain in response. I will give an additional critique of <span class="blsp-spelling-error" id="SPELLING_ERROR_2">Palin</span> to add to what PD Dude has said.<br /><br />I am bothered that many people seem to treat <span class="blsp-spelling-error" id="SPELLING_ERROR_3">Palin</span> without ANY scrutiny. She is a fresh face in politics, she's pretty, and she has very little political history from which to judge her. She also has a multi-multi-million dollar attack machine behind her known as the GOP to get her message shaped. It is in this context that we should look at <span class="blsp-spelling-error" id="SPELLING_ERROR_4">Palin</span>.<br /><br />First, how did we get here? McCain was probably desperate after looking at the polls and seeing <span class="blsp-spelling-error" id="SPELLING_ERROR_5">Obama's</span> convention speech, and he wanted a "game changer." You don't need to believe me. The reports are there that McCain was going to pick Lieberman or Romney, but he realized he wasn't going to win that way. He wanted someone who would energize the Republican base and who wouldn't detract. He went deep, deep into the bench (more precisely, he picked from the grandstands) to find <span class="blsp-spelling-error" id="SPELLING_ERROR_6">Palin</span>. She is a perfect example of the politics of today and how some people win who otherwise wouldn't.<br /><br />Those of you who remember what happened to Governor Gray Davis in California will understand this. In 2003 Governor Gray Davis was deeply unpopular. California has been truly mismanaged for years, thanks to an uninformed electorate scolded by lots and lots of "special interests." Davis won re-election in 2002 through a deeply cynical maneuver: He should have faced Richard Riordan, a very popular Republican mayor of Los Angeles. But the problem with Republicans is that they won't elect those who fall a little outside orthodoxy. Riordan was pro-gay rights and pro-abortion, two really big no-<span class="blsp-spelling-error" id="SPELLING_ERROR_7">no's</span> for a Republican. But he was highly popular, and very likely could have beaten Davis. So Davis intervened in the Republican primary and spent millions of dollars trashing Riordan by saying those two things: he was pro-gay and pro-abortion. These two issues would have HELPED him in the general election, and they were pretty much the same positions held by Davis. But this was toxic to the Republicans. <span class="blsp-spelling-error" id="SPELLING_ERROR_8">Bill Simon</span>, a very conservative Republican, beat Riordan and then went on to lose. It was inevitable. Simon was great for the Republicans, but no one else liked him. Davis was tolerable by comparison and he <span class="blsp-spelling-error" id="SPELLING_ERROR_9">cake walked</span> to victory. The Republicans were pissed.<br /><br />They got even when Davis kept stumbling. Davis got gamed by Enron and others, and he just couldn't bring himself to raise electricity rates (or undo the whole "open market" electricity thing that was being gamed by private electricity companies). People in California are, were, and have been pissed for a long time about how their government is so dysfunctional. Davis was a great example of what people hate in politicians. Although he is a Democrat, he mercilessly shook down the teachers union for campaign contributions, and even changed some of his core positions when the <span class="blsp-spelling-error" id="SPELLING_ERROR_10">CCPOA</span> (California Correctional Peace Officers Association) cut him some checks. He just didn't seem to have any moral center, and he didn't have many supporters when he needed it. He even took some money from energy companies like Enron, and this made it look like he was dragging his feet and costing California billions. Voters were mad.<br /><br />The recall election in 2003 was the first time ever that a state public official was removed from office in California, although 17 other recall efforts had been done before. It was ugly. Davis was removed by a margin of 55.4% to 44.6%. <span class="blsp-spelling-corrected" id="SPELLING_ERROR_11">Schwarzenegger</span> was then elected governor (by the same ballot) with 48.6 percent of the vote. <span class="blsp-spelling-corrected" id="SPELLING_ERROR_12">Schwarzenegger</span> would NEVER, EVER have made it through the Republican primary process. Just ask some Republicans now how much they like <span class="blsp-spelling-corrected" id="SPELLING_ERROR_13">Schwarzenegger</span> and they will likely say that he is a "Socialist," or a "Democrat," or some other epithet that they hate. Point is, only through this extraordinary process did <span class="blsp-spelling-corrected" id="SPELLING_ERROR_14">Schwarzenegger</span> come to office.<br /><br />One to <span class="blsp-spelling-error" id="SPELLING_ERROR_15">Palin</span>. <span class="blsp-spelling-error" id="SPELLING_ERROR_16">Palin</span> supports abstinence-only education, and that means what it says: no sex ed in the schools. This isn't just her opinion, but the opinion of someone a heartbeat away from the presidency. She has a 17 year old daughter who is now pregnant. <span class="blsp-spelling-error" id="SPELLING_ERROR_17">Palin</span> denied funds recently (she used her line-item veto and zeroed the funds out) to a home for underage, unwed mothers, particularly those suffering from domestic violence. Message: I don't want your kids taught about sex education on the government's dime, and I don't want poor unwed mothers cared for on the government's dime, but I, myself, have a 17 year old who didn't get the message and is having a child early. <span class="blsp-spelling-error" id="SPELLING_ERROR_18">Palin's</span> own pregnancy is the subject of some really questionable judgment about why she flew 8+ hours from Texas (after waiting hours to give a speech), then drove to a little <span class="blsp-spelling-corrected" id="SPELLING_ERROR_19">hospital</span>, all after she was leaking amniotic fluid (technically she was in labor) one month early with a special needs child (i.e. Down syndrome).<br /><br /><span class="blsp-spelling-error" id="SPELLING_ERROR_20">Palin</span> lied about the bridge to nowhere (she advocated for it, then claimed in her first national address that she said "no thanks") and lied when claims to be against earmarks, yet eagerly sought them both as mayor of a small town and as governor of Alaska.<br /><br />As governor, <span class="blsp-spelling-error" id="SPELLING_ERROR_21">Palin</span> sought to fire her sister's ex-husband from the state police (and if what he did was true, he no doubt is a jerk), then instead fired the head of the state police (also a jerk who probably deserved to be fired) when he refused to fire the guy she wanted to be fired. But then she lied about the whole thing and has repeatedly sought to have the whole investigation placed under the control of a three person panel that she controls.<br /><br /><span class="blsp-spelling-error" id="SPELLING_ERROR_22">Palin</span> tried to get the librarian to ban certain books from the library because she thought they were offensive, and when the librarian refused to do so, <span class="blsp-spelling-error" id="SPELLING_ERROR_23">Palin</span> started the process to fire her.<br /><br /><span class="blsp-spelling-error" id="SPELLING_ERROR_24">Palin</span> did a nasty speech at the Republican convention where she mocked <span class="blsp-spelling-error" id="SPELLING_ERROR_25">Obama's</span> time as a "community organizer" and essentially labeled him as a guy with no real experience. What <span class="blsp-spelling-corrected" id="SPELLING_ERROR_26">chutzpah</span>. But now she hides from the press, afraid of what questions they might ask HER about HER experience, and the issues above. Her surrogates in the media, meanwhile, blow smoke about legitimate questions about her, claiming that such questions are really about the fact that she has 5 kids (So what?), or that she is a woman and Democrats are being sexist (Wow!). Never mind the fact that she is simply a political unknown,and she hasn't been through the process to find out who she is and what she stands for.<br /><br />And that is actually the point I was getting at regarding <span class="blsp-spelling-corrected" id="SPELLING_ERROR_27">Schwarzenegger</span>. He was a political nobody, with no previous office experience. He would have been eaten alive in the Republican primary because he is a "creature of Hollywood" and he is, in fact, a closet moderate. Republicans would have avoided him if they had the chance. <span class="blsp-spelling-error" id="SPELLING_ERROR_28">Palin</span>, on the other hand, would have been a darling of the Republicans. Until, of course, someone like <span class="blsp-spelling-error" id="SPELLING_ERROR_29">Huckabee</span>, or Romney, tore her apart for her clear lack of experience. Now she is the #2 girl to the oldest man to seek the presidency ever. McCain is 72. He's got a great chance of dying in office, and <span class="blsp-spelling-error" id="SPELLING_ERROR_30">Palin</span> will then take his place.<br /><br />Hats off to Republicans for getting their "stealth candidate" into the ring. I have no doubt that, between her and McCain that Roe v. Wade will be overturned. I have no doubt that people will grow more and more pissed at their <span class="blsp-spelling-corrected" id="SPELLING_ERROR_31">dysfunctional</span> government. I sure hate to lose this round (and I hated losing when Bush took it in 2000 and 2004), but I know that, if McCain wins, the American people will be getting exactly what we deserve. Maybe not what we want, but definitely what we deserve.<br /><br />Dennis Wilkins<br />The Guest PD BloggerDennis Wilkinshttp://www.blogger.com/profile/13556711089950824264noreply@blogger.com11tag:blogger.com,1999:blog-5651032.post-52732391143595939482008-09-02T11:59:00.000-07:002008-09-02T12:38:19.550-07:00About the Aquittal of Former marine NazarioJust before the weekend started, the federal jury in the trial of former Luis Nazario found the former marine not guilty. Good for him, I suppose. As a public defender, I enjoy hearing when the DA loses a case. I like it when someone is found not guilty, and a jury stands up for the rule of law. Whenever I hear a jury say (to me or to anyone else) "there just wasn't enough evidence to justify a guilty verdict," my heart skips a beat. That means that the jury was actually listening to the instructions about reasonable doubt.<br /><br />Of course, the Nazario verdict cuts another way, a way that I am not fond of. He's a cop (temporarily former, but he'll probably get his job back) and he was a marine at the time. A jury will typically bend over backwards to help this kind of defendant. The minority defendant who claims that the rock of crack was planted on him by a bad cop will lose every time, but the former war-hero-turned-cop will win every time.<br /><br />In fairness, the case against Nazario was actullay pretty tough to prove. Two witnesses, Sgt. Ryan Wheemer (whose confession during a background check started the whole thing) and Sgt. Jermaine Nelson, both refused to testify against Nazario and were found in contempt of court. Both still face murder charges in their upcoming courts-martial trials (although I seriously question whether there will be a different result). Both Wheemer and Nelson had been granted immunity, but neither was willing to rat on Nazario.<br /><br />The witnesses called by the prosecution said that they did not see Nazario kill anyone, but heard the gunshots. There apparently were no forensics and no identities to back up the prosecution case.<br /><br />There has been some discussion about whether civilian juries are "prepared to judge in cases of soldiers in combat" and I suppose that that is a fair question. But I have a different one: what on earth was the US Attorney thinking when he prepared and tried this case? I mean, really, how did he expect to get a conviction without eyewitnesses? Without forensic evidence? He knew these two witnesses would not testify. Why didn't he stop there? Without some serious proof that Nazario either killed people after they had surrendered, or that he had ordered their killing, why did he/she proceed?<br /><br />The killing of people after they have surrenedered is, and always has been, a bad thing. I was and am against all the torture stuff that happened at Guantanamo and Abu Ghraib (and the whole Iraq War, for that matter), primarily because of the human costs and atrocities. But I also don't like the idea of doing those things because later, when our people are captured, I want to be able to raise some righteous indignation to possibly prevent torture of our people if and when they are captured. That's the whole point of the Geneva Conventions - our people have some hope that their captors will treat them better if they are afraid that the whole world will vilify them if they mistreat captured soldiers.<br /><br />Long ago I was in the National Guard (and the Army before that) and there was talk of us being activated to go to the first Iraq War. It never happened (thankfully), and that war turned out to be very brief. But during that time my fellow soldiers and I had a great discussion about the Geneva Conventions. I remember one guy in particular saying he simply wouldn't abide by "any of that stuff" and that he would kill everyone, even those who surrendered to him. To him the Geneva Conventions was "for pussies." I think he was joking (he sure sounded serious), and I remember that some were swayed by his nonsense talk. I even quizzed what he would do if, like 20 or 30 Iraqis surrendered to him all at once. He said that he would kill all "those ragheads" (his words, definitely not mine). Again, some others were swayed by his nonsense talk.<br /><br />Later, when Desert Storm turned into such a huge cakewalk (thankfully) and the Iraqis were surrendering in droves, I saw a tape where 1000+ Iraqis tried to surrender to a predator drone. I'm really glad that neither I, nor my fellow Guardsmen went to that war. Or any war, for that matter. Learning how to kill is important in the military. But learning when NOT to kill is also important. I think that this kind of testing, moral and otherwise, happens all the time in Iraq today. And it is also frequently present on our city streets, tested by police officers frequently.<br /><br />Dennis Wilkins<br />The Guest PD BloggerDennis Wilkinshttp://www.blogger.com/profile/13556711089950824264noreply@blogger.com4tag:blogger.com,1999:blog-5651032.post-88480214783477410822008-09-01T23:51:00.000-07:002008-09-02T00:54:25.085-07:00Musings about the Sarah Palin thingIt feels a little like shooting fish in a <span class="blsp-spelling-corrected" id="SPELLING_ERROR_0">barrel</span>, or piling on, or something of the sort, but there is just so many places to go with this Sarah <span class="blsp-spelling-error" id="SPELLING_ERROR_1">Palin</span> pick as McCain's VP pick, that I just don't know where to begin. And I just can't leave it alone, because some of it is too glaring. A few random thoughts:<br /><br />1) Alright, I understand it, she's your precious little daughter, and we want to protect her privacy. So the question is, when she's 5 months pregnant and due in, when is that, oh, election time, WHY THE HELL ARE YOU ACCEPTING A BID TO BECOME VP KNOWING IT WILL BECOME A PUBLIC SPECTACLE????? Maybe you don't support your daughter that much after all.<br /><br />2) Why are we hearing this stuff from <span class="blsp-spelling-error" id="SPELLING_ERROR_2">Palin</span> and McCain that her daughter has "chosen" to have the baby and will marry the father (at some <span class="blsp-spelling-corrected" id="SPELLING_ERROR_3">undetermined</span> time - 10 years from now?)? In their view, having a child is not a choice, it's a crime to abort! Why use the language of her having a choice when they feel that this choice is akin to taking your live child and drowning it in a bathtub. They don't lionize their children by saying "she's chosen not to kill her 3 year old child after losing her job and going on welfare." By suggesting that a choice exists, they totally contradict their language on abortion equalling murder.<br /><br />3) So both McCain and <span class="blsp-spelling-error" id="SPELLING_ERROR_4">Palin</span> are running on this whole family values thing, like liberals are anti-American because they suggest that women can do equal work to men, and that they can choose to do so even after having children and starting families, or waiting to have families if that's what they want. And yet, we have this mother giving birth to a special needs child 5 months ago, her 17 year old daughter has clearly not absorbed much of what her mother has imparted to her on the "family values" front, and yet, Mom is going to decamp 8,000 miles to Washington DC for the next 8 years and leave her 5 month old to the care of who - her 17 year old pregnant and unmarried mother while she goes off to help a 72 year old man with cancer run the free world? Am I missing something here? What family are they valuing if not their own?<br /><br />4) Finally, this one's too good. The Eagle Forum in Alaska, a right wing organization dedicated to ensuring traditional American values in our politicians, sent a <span class="blsp-spelling-corrected" id="SPELLING_ERROR_5">questionnaire</span> to Alaskan <span class="blsp-spelling-corrected" id="SPELLING_ERROR_6">Gubernatorial</span> candidates back in 2006. Gov. <span class="blsp-spelling-error" id="SPELLING_ERROR_7">Palin</span> was kind enough to respond. You can read her responses <a href="http://eagleforumalaska.blogspot.com/2006/07/2006-gubernatorial-candidate.html"><strong><span style="color:#000099;">here</span></strong></a> on the Eagle Forum's website, but here's some goodies.<br /><br />Regarding a woman's right to choose, <span class="blsp-spelling-error" id="SPELLING_ERROR_8">Palin</span> responded: <span style="color:#ff0000;">"I am pro-life. With the exception of a doctor’s determination that the mother’s life would end if the pregnancy continued. I believe that no matter what mistakes we make as a society, we cannot condone ending an innocent’s life." </span>good thing her daughter has "chosen" to have the child.<br /><br />Regarding support for "abstinence-only" education instead of explicit sexual education, talk of contraceptive and things of the like: <span style="color:#ff0000;">"Yes, the explicit sex-ed programs will not find my support."</span> Obviously her daughter heard nothing of them either.<br /><br />Regarding allowing parents to opt out of school <span class="blsp-spelling-corrected" id="SPELLING_ERROR_9">curriculum's</span> that they morally disagree with, such as, well, Sex-ed: <span style="color:#ff0000;">"Yes. Parents should have the ultimate control over what their children are taught."</span> I'm telling you, it's getting harder and harder not to think that this came from a Saturday Night Live skit or an Onion article at this point. I mean, obviously, she opted her daughter out, to these results.<br /><br />There is so much more to talk about, it's almost not fair. The funniest thing is, most people won't care. They'll support her for whatever idiotic reason that they do, despite the fact that had she been a Democrat, they'd <span class="blsp-spelling-corrected" id="SPELLING_ERROR_10">vilify</span> her as a closet lesbian spear <span class="blsp-spelling-error" id="SPELLING_ERROR_11">chucker</span> who doesn't shave and wants to burn society's bras, imprison it's men, and establish worldwide female hegemony.<br /><br />Don't worry, there will be more, I mean, she's only been the candidate for 3 days. But like I said, it won't matter, most Republicans would rather vote for a 3rd term for George Bush than vote for any Democrat (and this is essentially what they'll be doing when they vote for McCain).PD Dudehttp://www.blogger.com/profile/06067582064163477160noreply@blogger.com4tag:blogger.com,1999:blog-5651032.post-12666914193462504592008-08-29T15:12:00.000-07:002008-08-29T16:16:45.479-07:00A Not-So-Quick Rant on the Drug War in AmericaI watched Obama's acceptance speech last night and I thought it was wonderful. The best I have ever seen. Just now, I started thinking about a few things. How about a brief, and I do mean brief, moral discussion? About the drug war? Please, please, let there be some law and order types to sign on and discuss this.<br /><br />I am opposed to the drug war. I believe that it has been a waste and that we are, essentially, punishing a vice crime that hurts very few. Obama, possibly the next President of the United States, has used cocaine. (Had he been caught in the wrong place doing exactly what he has admitted doing, we wouldn't be talking about him being the President of the U.S., we'd be talking about him being a resident of a penal institution.) He admitted that he had a problem with it. So has Rush Limbaugh, icon of the right. Oxycontin was Rush's drug of choice, but that's just a different version of a similar drug. Oxycontin is called "hillbilly heroin" because it is a cheap, pharma version of heroin. Similar effects and all that. Bill Clinton used marijuana, but he stuck to the lie that he never inhaled. Billionaire Henry Nicholas III, the promoter of the evil tough-on-crime Prop. 6 and 9 on the ballot in November has a video that was pulled from YouTube where he is using cocaine - he even admitted that it was him in the video.<br /><br />There are people in prison doing larger and larger amounts of time, sometimes even 25-life or more, for possessing tiny amounts of these drugs. The punishments for meth and ectasy are set to increase more and more, primarily because "bad things happen when people do drugs" and "people should control their bad habits." Okay, then why did Rush Limbaugh beat his rap? Why is he still on the air espousing his "personal responsibility" crap? Who listens to him? What IDIOT thinks that he has ANY moral authority to talk about ANYTHING crime-related when he "beat the system," when he constantly claimed that drug users should be "just shot?" (He said it - if not that exactly, pretty close.) I want Obama to win, but how does he have the moral authority to talk about drug sentencing, when he was once a drug user himself. Note: I have ZERO faith that if McCain were elected he would do ANYTHING to change federal (or influence State) drug laws for the good (e.g.more compassion, less prison) - Republicans have run on tough on crime for a long time now.<br /><br />How do people constantly justify not even talking about the drug war and its failure? How can we keep people in prison for decades, and keep imprisoning them, when people we know are addicted to drugs? Where is the disconnect here? Perhaps it is time to treat this as a war. In the Civil War, Sherman's strategy was to tear the heart from the Confederacy - burn everything on the way to Atlanta, burn the fields, and there will be no more resistance. When Germany invaded the USSR in WWII, Stalin's strategy was to burn everything when retreating, leaving nothing behind. Brutal strategies, but they worked. In war, you can afford to use scorched earth as a viable strategy, because everything is called for in war.<br /><br />Well how about it, conservatives? Let's just make it automatic prison for all drug offenses, regardless of what they are, no treatment, no nothing. And let's start with YOUR CHILDREN if they get addicted to drugs. Your friends. Your precious Limbaugh. Henry Nicholas III. That conservative preacher that "went astray" with a male hooker and meth in his hotel room. How about house-to-house searches to get every last speck of drugs from our communities? How do you think it will it feel when your communities are devastated, like those of the poor have become? When your kids cannot get student loans or jobs because they had a drug conviction? Perhaps that is the only answer to these "tough on crime" types who refuse to admit that drug abuse is an addiction.<br /><br />By the way, I am not of the opinion that someone who commits crimes while high should be "forgiven" or get a pass somehow. Commit a crime, whether high or not, and you face punishment. But I don't see prison, or jail for that matter, as an answer. Drugs are an escape and so many people use them. And when safe drugs aren't present, they MAKE UNSAFE ONES. People who cannot get a job, who do not see their future abuse drugs. People who have nothing to care about abuse drugs. Jail and prison don't change this.<br /><br />But I suppose the real point is, WHY AREN'T WE HAVING THIS DEBATE? Why do the "tough on crime" types always win and prevent even the mere discussion of substance abuse laws reform? Why do we keep pouring billions and billions and billions of our hard-earned tax money into a failed prison system without even debating whether we should be punishing this conduct in the first place.<br /><br />The exact same argument goes for prostitution, by the way. I am a liberal and damned proud of it, but there are far too many liberals in this state who constantly join with conservatives and everyone else to pass dumber and crueler laws, imprisoning more and more people. I have a pretty strong libertarian streak in me. I have children I love very much, and I don't want them to become junkies or prostitutes, but the best way to ensure they become good citizens is not to pass more stupid, cruel and expensive laws, but to make sure they have a better education, and the people around them have a reason to get up in the morning (like for, you know, a job). It is hard to respect a criminal justice system that we have built to breed disrespect.<br /><br />I had to get that off my chest. The hypocrisy of our criminal justice system, and how it treats the poor and the despised, has been killing me lately. Whew - I feel better now.<br /><br />Dennis Wilkins<br />The Guest PD BloggerDennis Wilkinshttp://www.blogger.com/profile/13556711089950824264noreply@blogger.com6tag:blogger.com,1999:blog-5651032.post-86562612999303103692008-08-29T09:41:00.000-07:002008-08-29T10:12:10.759-07:00Only in California - Pregnancy is Great Bodily InjurySo California has a rule which says that if you commit a crime against someone and cause them great bodily injury, then you get an enhancement. The law says that it has to be a significant injury, and has to be intentionally caused. Here's the rub, while it only adds 3 years to a sentence in most circumstances, in the last 14 years, it has also made any crime a "strike" (you all have heard of 3 strikes, right?). It also forces people to serve 85% of their time if the allegation is found true.<br /><br />So, as you can probably guess, prosecutors love this enhancement. And when they love something, they misuse it. Now, let's think of the way in which they can misuse this one: it requires GREAT bodily injury, so perhaps they could <span class="blsp-spelling-corrected" id="SPELLING_ERROR_0">stretch</span> the meaning of great so that every minor injury now constitutes great bodily <span class="blsp-spelling-corrected" id="SPELLING_ERROR_1">injury</span>; and it requires that the injury be caused intentionally, so perhaps they could try to extend accidents to "intentionally.<br /><br />If that sounds absurd, or insidious, or something else, you are right, it is. It's also what's happened.<br /><br />Just about every injury, no matter how minor, when blood is drawn, is now charged as great bodily injury. Get into a fight with someone and give them a bloody nose? Great bodily injury. Scratch someone and cut them? Great bodily injury. It used to be that the injury had to be significant. Now, no matter how minor it is, it is charged. And, since it is almost always a factual determination, no <span class="blsp-spelling-corrected" id="SPELLING_ERROR_2">judge</span> will ever dismiss a great bodily injury allegation based on insufficient evidence, so everyone charged with this must go to trial for it, no matter how minor a case it really is. Or, the prosecution can squeeze a plea out of someone in a bullshit case out of fear of going to trial. Very effective.<br /><br />The other aspect, that it must be willfully and intentionally caused, has also been under assault. The best example of that is in the area of DUI accidents. Now, I'm no big fan of drunk drivers, but if you get into an accident, someone is likely to get injured. Can anyone say that this is an intentional causing of great bodily injury like stabbing someone? Do we really call these people violent offenders and give them strikes? And think about it, more than one person is likely to be injured in this situation, so while someone who shoots at a person may come out with only one strike, a person who gets into a car accident while drunk and where no one is significantly hurt can walk out with multiple strikes (meaning he gets a life sentence if he picks up a forgery or drug possession in the future) and a very long prison sentence. Again, I'm not saying I have some great love for drunk drivers, but let's call a spade a spade - unless there's some evidence they do it serially in some manner, it's hardly violent (potentially dangerous, sure, but violent?).<br /><br />Now the California Supreme Court has just validated the latest absurdity - pregnancy is great bodily injury. I did realize that I caused great bodily injury to my wife when I got her pregnant for our two kids, but evidently I'm a violent felon worth of 25 to life. In the case at bar, some dude raped his step-daughter (not an action I advocate, by the way, I'm even willing to go out on a limb and call it evil), and got her pregnant. Now, if he is convicted of this, he faces 16 years in prison (and he has to do 85%), but if he causes great bodily injury (of course, this was originally intended to mean something like pistol whipping the person, or stabbing them, or beating them to a pulp) in a case like this, it turns into a life case. Now, again, I have no sympathy for those who bang their 13 year old stepdaughters, and if he really did cause her great bodily injury, and this is the law, the fine, give him life.<br /><br />But, let's face it, these prosecutors basically said "I want to give this guy life even though the law doesn't call for it, so I'm going to make up some bullshit to get him a life sentence." And the Cal Supreme Court went along with it - absolutely incredible. Once again, it just blows me away the extent to which California Courts will go along with whatever absurdity some idiotic prosecutor comes up with.<br /><br />The funny thing is if this was a civil lawsuit, where someone was claiming great bodily injury for becoming pregnant, the lawsuit would be thrown out as frivolous (especially if it was against some big business or corporate interest). But, if the only sanction is not money, but someone merely spending the rest of their life in prison, then whatever, let's suspend critical thinking.PD Dudehttp://www.blogger.com/profile/06067582064163477160noreply@blogger.com11tag:blogger.com,1999:blog-5651032.post-15668054406681423742008-08-29T09:16:00.000-07:002008-08-29T09:18:26.060-07:00I certainly like Biden more than PalinGive me a break, does McCain think that Hillary supporters were so desperate for a woman that they'd vote for him if he chose one as VP? Even if she's anti-abortion? Even if, prior to her unimpressive 2 years as governor of Alaska she was a mayor of a town of 8,000? At least we don't have to hear McCain talk about how experienced he is for the job anymore. <br /><br />Although, to the extent he didn't take a Dick Cheney type as his #2, that's always good.PD Dudehttp://www.blogger.com/profile/06067582064163477160noreply@blogger.com1tag:blogger.com,1999:blog-5651032.post-26003836943163647212008-08-28T00:08:00.000-07:002008-08-28T00:11:02.637-07:00I do like Joe BidenI guess it's just the contrarian in me, even to a fellow PD. Sorry Dennis, I know he can be ponderous, and this really has nothing to do with strong policy or principle issues, but I do like him. Was he Obama's best choice? Who knows, there's others I might've chosen, but he certainly could've chosen much worse, and some of the names out there didn't thrill me. I'm happy, though.<br /><br />All that matters is that Obama beats McCain. His VP doesn't matter much to me.PD Dudehttp://www.blogger.com/profile/06067582064163477160noreply@blogger.com0