LA Area DA seeks to elevate DAs, denigrate defense lawyers - by initiative

This is via the Los Angeles Metropolitan News (a legal newspaper), the head of the LA District Attorney's Association, Steve Ipsen, has proposed one of the most pernicious, insidious and unconstitutional state initiatives that I can ever remember seeing. Evidently, Ipsen wants to prohibit a whole class of people from donating money to the campaigns of elected district and city attorneys. Think about that, a whole class of elected official cannot raise money from a whole class of individuals: lawyers who have even one criminal case in that jurisdiction.

You want to talk about an unconstitutional, and truly disgusting idea, this is it. The theory Ipsen would say is that defense lawyers will donate money to the candidate who would advance their agenda the most, to the detriment of the rest of society.

Well, let's think of this. This would assume that the only intention and desire that criminal defense lawyers have is the unprincipled desire to get less time for their clients as a class of people. In other words, that we are in favor of crime and criminals, rather than a just adjudication of the laws on the books, or a recalibrating of the laws in a manner that is more fair to all types of people. How about this - perhaps many people who go into defense work do so because they want to ensure that all accused get a fair shot, that they are not taken advantage of by the system. They want to make sure that all people get a fair shot, so as to ensure that innocent people do not regularly get victimized by the system. You see, what Ipsen really wants is to limit money coming from political positions that he personally disagrees with. He has faith in a police state that gives all power to police and prosecutors without any check on their authority.

Sure, he will couch his position in the idea that this only applies to defense lawyers who have the potential of actual bias - cases in this actual jurisdiction. But think about it - those are the people most interested in and knowledgeable that race. Why would a defense lawyer in Sonoma County care about the race for DA in Los Angeles, or vice versa? If a lawyer in Los Angeles believes strongly enough that the administration of justice in his county is proceeding in an unfair manner, he will donate money accordingly. And this is what you would expect from locals who regularly practice in that area. It's no surprise that every year around election time my friends and family ask me who they should support for Judicial elections -I work in the field, I am far more knowledgeable than they are, so they want to know my views. Ipsen wants to effectively silence that voice so that only his voice, or those aligned with him, can be heard. To call these views anti-democratic understates how extreme he is.

Ipsen appears to recognize the rank idiocy of his position, because he puts a fall-back position in his initiative - that if the prohibition is found unconstitutional (duh!), then any candidate that accepts money from defense lawyers must make a statement stating so in all public advertising by noting the candidate is “supported and funded by criminal defense attorneys and/or criminal defendants.” Those are the words from the actual initiative! As if there is no difference between criminal defense lawyers and criminal defendants (as there is no distinction in the wording). This lays bare Ipsen's view of the role of a defense lawyer in society - a criminal.

And what does that really mean? It is quite clear what it means. To Ipsen, someone who represents a defendant is morally and legally equivalent to the person he represents. Hundreds of years of legal tradition in western civilization, the basis of all of our laws and system of justice - down the drain according to Ipsen. If you represent someone accused of a crime (rightly or wrongly, it would seem), then you are as despicable as - not the person - but the act they are accused of committing. After all, there is no distinction between the person and the crime they are charged with, because to assert they did not do it, or that they aren't guilty of the actual charges is a meaningless and fruitless activity which equates you morally with the perpetrator, who, incidentally, must be guilty.

Here's a question Ipsen. If the fair administration of justice is so important here, how about preventing ANYONE from giving money to a race in which they have an interest. This, of course, would mean that prison guards, police, sheriffs, DAs, any anti-crime group, any victim's rights group, etc, couldn't give to any race involving not just a prosecutor, but governor as well, as they have just as much influence in the system of justice in which these parties are so intricately involved. Now we're talking. Don't go waiting too long for an answer to this. Unprincipled people like Ipsen will never countenance arguments that they are inconsistent in their views.

Of course, if you read more deeply, you see even more gems here. Of course, Ipsen has to name this initiative after some victim, because without that, it may actually be discussed on it's merits rather than on the emotional plane of "what, you want to re victimize this family, you evil twit?" And why, in this otherwise totalitarian anti-democratic power grab does Ipsen throw in this little tidbit - DAs must get more money and benefits. He wants to ensure that DAs get the same pay, benefits and retirement equivalent to that of law enforcement officers - which is extremely generous. He also seeks to separate the pay and benefits of DAs from Public Defenders, and ensure that only DAs get these new, generous benefits. I've blogged about this before, but I'll say it again: You want to see who faces danger in their work, don't look at DAs, look at PDs. We are the ones who face the daily slings and arrows of our client's lashing out at the system - we are the bearers of bad tidings, we have to sit next to them as their frustration boils over, and we are the ones they eventually hit, slash, or otherwise attack.

So, when you see this further "tough on crime" initiative hit the ballots (if it ever does hit it), remember what an evil anti-democratic force is behind it, and act accordingly. The only thing we can be thankful for is that Ipsen has decided not to run for DA in Los Angeles, because a person with his views running that place would be disastrous for 10 million people unfortunate enough to live in LA County and bearing the results of him going from crazed outsider throwing grenades at the system to actually running the place, and that would be really scary.

Why are ex-Public Defenders so often bad judges

I always get excited when someone from my office makes it to the bench (someone good, that is - if the person's a total political tool, then it's not so exciting). It means that finally, someone with our perspective is sitting on the bench. So, I have to ask myself all of the time this question: Why do ex-PDs make such uniformly bad judges. I mean, there are good judges who were PDs (or private lawyers, for that matter), but so many of the best judges I know were either District Attorneys or worked in the federal system. And I don't know why.

I've heard the theories. One theory is that as a Public Defender, we've heard all of the bullshit that our clients put out and we no longer buy it. But, that would mean that only the most cynical Public Defenders make it to the bench (something that doesn't seem impossible, in light of the political process it takes to make it to the bench). But, it would seem that I would have noticed the cynicism of some of these people before they made it to the bench. Most of the time, I haven't seen it.

Another theory is that only the most politically adept PDs make it to the bench, so that when they get there they have thoroughly sold their soul to make it there, and they can't do what their conscience asks them to do when they hit that spot for fear of a backlash by the people that put them there. I guess that this is possible, but, again, I never noticed this personality trait in so many of the people that I knew beforehand who make it to the bench and completely disappoint when they hit that spot.

Another, along the same vein, is that as ex-PDs they are under a greater microscope looking for perceived pro-defense bias (something that will really get you bounced from the bench, in contrast to overt pro-prosecution bias, which will get you a sweet gig within the judging ranks, unless you go completely overboard and totally piss off every PD in the county, something that's hard to do). This holds more water, and sort of goes in line with the previous thought. By promising this independence from their prior profession to everyone under the sun, they at least feel as if they are being closely scrutinized for possible bias, and want to cover it up.

But, all of these theories work for perhaps some of my colleagues who've made it onto the bench. Do they explain all of them? Is there another reason I'm not considering? In general, I feel defense lawyers are better lawyers than most prosecutors (note the MOST, there are some prosecutors who are stellar lawyers, but the mean PD is better than the mean DA, as far as I've seen). They have spent their lives bucking the system, not playing along to get along, not following strict hierarchical rules that DAs have to follow, thinking independently. Why is it that once these people hit the bench, they do so much worse than these DAs who usually can't hold a candle to them as lawyers?

And with that post, I completely give up the chance to ever become a judge (unless people realize that maybe I'll be just as "bad" as all of those other ex-PDs that have been put on the bench, and they'll put me on as well).

Thoughts, anyone?

Remembering why I do this work

Alright, it's been a long time since I've posted. To those online and offline friends who've told me "what's going on?" I can only say, thank you for encouraging me. Work has been very busy of late, and management at our office has really become unhinged in a bad way (it's all relative, I guess. I hear enough horror stories that really makes my management pale in comparison). The net result has been that I've been offline too long. Perhaps it's drained all inspiration out of me.

That being said, there are times that things happen that have a cathartic effect on me and makes me realize why I do this, and a video on You Tube has provided that for me.



People have accused me of being obsessed with black/white issues, or rich/poor issues, or things of the like. In reality, I am obsessed with powerful/weak issues. Those who have power, and abuse it, against those who are weak and cannot fight back.

In this video, a Utah Highway Patrolman pulls a guy over for speeding. The guy evidently disagrees, and makes it clear. What is clear from the start is that the officer isn't accepting any disagreement, and goes back to write a ticket. When he returns, the person refuses to sign it. Here's where it gets really bad, and where the cop totally loses it. The person being pulled over probably had no clue that in signing the ticket, he's just agreeing to show up in court, and not admitting to any guilt (his lack of understanding of the system should've been a tip-off to the cop at this point). At this point the cop could've calmly explained "look, I know you disagree with me, but signing this ticket is just a promise to appear in court. You can explain to the judge why I'm wrong, and we can have it decided in court rather than out here, since we obviously disagree. I just have to make sure you're willing to come to court on your own, which this signature affirms. If you don't, I have to take you in cuffs to have you post bail personally. You have your pregnant wife and infant here, and I know you don't want that, so sign the stupid ticket, come to court, and we can argue about it there."

That, of course, would be the reasonable thing to do so as to explain to someone who appears otherwise law-abiding what the system is actually doing here. Instead, the cop orders him out of the car and immediately decides to arrest him, without telling him what he's arrested for. Obviously, the guy is pretty surprised by this and doesn't jump to it with his hands behind his back, and after 6 seconds (which was actually timed in one news report of the event), has his taser out and is threatening to shoot - which he does a second later or so. The victim (I love calling the arrested person that, but he clearly is one) never endangers the officer, never threatens him, and never does anything offensive other than request a sober statement of what happens.

Here's what fascinates me. The officer otherwise seems like a nice guy. He talks with the wife afterwards in a very polite manner, as if he has concern for her (this after just tasing her husband, leaving her hysterical, and threatening her as well, all for nothing). He clearly will never be disciplined for this, he tells his supervisor who comes on scene what happens (only slightly lying in his rendition), and has evidently never been disciplined in the past. In other words, this was standard operating procedure.

And yet, watching it, I felt the pangs of uncontrollable rage in me. I felt the same as I felt watching videos of 60's protesters in the south being set upon with dogs, or sprayed with high powered hoses, or watching protesters in Russia get clubbed, or with any other place where injustice plays itself out in such a blatant fashion and where society at large yawns or (worse) applauds loudly.

I am so honored to be one of those people who stands up for these powerless people. I'm not saying that every client of mine is in this guy's position - of course not, that is absurd. But the chips are stacked so dramatically against the people that I represent, and when something like this happens, there is no one otherwise there to stand up for a victim of police abuse like this and say "enough!" The problem is, society has become so inured to the notion of "lock 'em up and throw away the key" that they are now willing to lock up anyone and everyone, and society at large applauds. Honest, good people get abused now because it has become acceptable. After decades of shitting on poor minorities, the attitude has spread and the practice has followed closely behind it. Anyone can be nailed now, legal protections have become so pro-forma so as to not exist anymore. Perpetrators of these actions are protected far more than the public at large is. Police officers are seen as victims if their actions are called into question and they are investigated for their misdeeds.

The only people out there fighting against this all the time - not just in the case of the highly sympathetic white victim in Utah with a pregnant wife and infant in the car where the case is caught on video - are public defenders and other lawyers like us.

It takes watching a video like this, and feeling once again the frustration in me while watching it, that reminds me why I'm so proud to do this work.

And with that, I'm back.

Spector Jury Hangs

I know I'm late on this one, but it certainly deserves a comment. The Phil Spector jury has hung, which wasn't looking like a huge surprise as the jury's questions became more and more pointed. A few thoughts.

First of all, I certainly can understand why Judge Fidler didn't want a hung jury. This case lasted months, it was very costly, and consumed quite a bit of the Court's resources. That being said, the lengths he began going to to try and get a verdict went a little overboard. The notion of giving the jury a lesser of involuntary manslaughter during deliberations defied imagination - of course, he ended up not doing it, but the amount of press that it got clearly swayed some jurors into realizing that the judge wanted them to reach a verdict of guilty as to something.

From what I understand about the jury instruction the judge gave to the jury, and then withdrew, it appeared as if it was not a correct statement of the law. It may have been a correct statement of the law according to the prosecution's theory of the case vs. the defense's theory of the case. The prosecution's clear theory was that Spector shot Clarkson after putting the gun in her mouth - if it went off accidentally or on purpose it didn't matter, since putting it there was "implied malice," and therefore an act so dangerous to human life that the mere act of doing implies the person is acting with malice (as opposed to the gross negligence or recklessness that is required for involuntary manslaughter). The defense theory was that whoever put the gun into her mouth, Spector didn't pull the trigger, and hence, couldn't be held liable for murder. The problem is, in the abstract, one could be liable under implied malice for murder by putting a gun in someone's mouth even if you don't eventually pull the trigger. Such a scenario was never explored in this case, but giving a jury instruction that he must be not guilty if he didn't pull the trigger is an incorrect statement of the law. How a change in that instruction could've made the difference is beyond me, though. I can't imagine that there were guilty jurors out there who believe that she pulled the trigger.

The retrial is going to be as long and tedious as the first one. It's going to be a slog, and it's going to happen. There is no chance that the prosecution is going to offer Spector anything that he will take - it's too politically unpalatable. District Attorney Steve Cooley will look like a fool in public if he gives Spector anything in the single digits, and Spector, at nearly 70 years old, is not going to plead to double digit time. I just can't see this case settling, especially not with a 10-2 for guilty split. If this was one of my cases, we would settle it for about 12 years or so. That's not going to happen in this case.

Spector will probably get new lawyers. From their perspective, they've just done a great job. They hung the case, they got on TV every day, it is a boon to their career. There's almost no uphill from here, unless they win it next time (not too likely to happen, in light of the split and juror comments in this case). Reality speaking - they're gone.

For the rest of us defense lawyers, I think this is a bad thing. This perpetuates the misconception that prosecutors can't win a fair fight, and that laws need to be changed to deal with it. I'm sure that this will fuel another round of pushing for non-unanimous jurors (the "Phil Spector law?"), and also to keep cases off TV. But, more than anything, it makes future jurors think that every defense lawyer has some trick up his sleave to try and get his obviously guilty client off, and that they should not be trusted. The net result of that means that, sure as day turns into night, there will be more innocent people getting convicted by more overly skeptical jurys. And that's a bad thing, especially for us public defenders who represent the most downtrodden in society. But, I survived OJ, I'll survive this.

Larry Craig and Police Officer Opinion Testimony

One of the areas that has held public fascination in the Larry Craig situation is the vagueness of the charges and allegations against him. Put simply - what did he actually do wrong - tapping a foot and reaching with his hand? He clearly did not break any established and obvious laws by those actions (not unless laws have become so over broad and burdensome that they've even caught me, Public Defender Dude, by surprise). So what he did had to be interpreted by a police officer as being illegal, because it is not illegal on its face.

This brings up an area that I've so often railed against - police officer opinion testimony (or, as I like to put it, "my opinion is that you're guilty."). I think that this opinion testimony, whether in the context of gangs (giving an opinion that any sundry crime was committed for the benefit of a street gang so as to make minor crimes strikes, or average crimes life sentences), or drugs (giving the opinion that whatever amount of drugs that someone possessed was obviously possessed for purposes of sale), or any other area.

Prosecutors love this stuff. It's like 2 closing arguments in their case. They get a police officer who gets to get up on the stand and essentially say "I've investigated thousands of cases, and in my opinion this person is guilty, because his case falls in with all these other ones in this manner." It is highly prejudicial, and in many cases, highly meaningless. Let's face it, any old person in the world could figure out whether a certain crime benefits a gang without having to hear a police officer point his finger at your client and say "he definitely did it for the gang." How about general testimony about how a gang may benefit, or something to that effect?

And the Larry Craig case is just like that. The police officer sees something, and interprets it one way. Larry Craig interprets it the other way. It is so difficult to get a jury to realize that a police officer sees the world in a certain manner, and everything they see falls into line in that manner. When you go out looking for gay people, suddenly everyone is gay and hitting on you. Even the most subtle actions can be taken as hitting on you.

The only way that Larry Craig could have ever been convicted in this case would have been if the officer had gotten on the stand and said "I've investigated thousands of these cases, and what Larry Craig did was hit on me and attempt to have sex with me." How do you refute that? It's very difficult.

That being said, going against that kind of testimony can be very fun, as well. You get to pose hypotheticals to the police, who have to sometimes take ridiculous positions to continue to assert your client is guilty.

I had one gang case where the gang officer's testimony won the case for me. Through cross examination, I was able to put forward a whole different scenario about how the crime took place, and ask if that would be consistent with guilt or innocence, and the officer had to concede that looking at the case in that manner it made my client not guilty (of the whole crime, not just of the gang allegation).

So, I hate these types of cases, and this testimony, but a good lawyer learns how to turn it in their favor, or at least neutralize it as much as possible.

Good luck Larry (and I mean that - they're nothing wrong with being gay!).

The Lewd Conduct of Senator Larry Craig

It takes a juicy arrest like this of a prominent gay bashing Republican to drag me out of my torpor and get me posting again. The arrest and conviction of US Senator Larry Craig, a Republican from conservative South Dakota (didn't they just pass a law criminalizing all abortions?) is one of those crystallizing moments that happens with increasing frequency in society - usually the moments are crystallized by Republicans, because they have gained much of their political power by riding moral crusades and against crime. Of course, I love these cases because what they do is force normally "tough on crime" Republicans, those who have held as a general philosophy "lock 'em up, let God sort them out" to confront real issues of guilt and innocence, the fairness of the system, harshness of punishment, and whether they really live up the codes of morality they seek to impose on others.

The Scooter Libby case was a perfect example of Republicans being forced to admit that a punishment did not fit the crime. In that case, it was perjury and obstruction of justice receiving lengthy prison sentences (they seem to have gotten beyond that whole thing - they just thought this one, solitary prison sentence was too much - if given to minorities, poor people or Democrats, then it would've been too lenient). The fact remained, though, that defense lawyers are now able to present the President's statement about the harshness of prison for a first time offender like Libby in their own cases.

The Larry Craig case brings up a few issues near and dear to my heart. I'll talk about one of them today, and follow up with the others in the next couple of days.

The issues that I see are as follows: 1) absurdly defined crimes that result in criminal convictions for behavior that cannot otherwise be defined as criminal, 2) people pleading guilty to things they didn't do so as to avoid the spectacle or trouble or risk of going to trial, and 3) absolutely ridiculous "opinion" testimony of police officers which generally amounts to "my opinion as a police officer is that he's guilty, so the jury should find him guilty."

Regarding people pleading guilty to things that they may not have done, Larry Craig is a perfect example. He obviously wanted to plead so as to avoid a spectacle in which he would've been held up to major ridicule. The cost of trial such as this would've been enormous for him, and by all signs of the police report I've seen, there's a very good chance that he could've beat the charge (I have to admit, I haven't read the statute, but I'm guessing it's somewhat similar to California's lewd conduct law in Penal Code Section 647(a), of which I did a couple of trials ages ago when I did misdemeanors).

Craig indicates that he was innocent, but pled to take care of it. The fact is that he was given a great sweetheart deal, which is usually given in cases like this, which encourage people to plead to things they may not have done. I don't have an easy solution for this, of course. It sounds easy to ridicule, but I realize that we don't want people getting very harsh punishments small charges that are first offenses just because we want to encourage them to go to trial and assert their rights. On the other hand, criminalizing such minor behavior such as this, and insisting on pushing it to a filing, really stretches what is necessary. I don't know, maybe there really is an epidemic of all of these solicitations taking place in the bathroom in this airport, but I have to think that with conduct like that alleged by Craig, they could use their discretion and not file on it.

The cases that I saw so frequently usually had someone making an unambiguous action indicating intent - usually masturbation and asking the person to do something, not just brushing of a hand or foot. I have to think they could've waited for a little more unambiguous action on Craig's part before arresting him and filing the case (these points obviously bleed over to my other points on the subject).

Back to pleading, though, Craig makes it clear that people actually do take deals when they are not guilty, and, as Craig said, without the assistance of a lawyer (which he said he wished he had taken, but obviously wanted to get it over as quickly and quietly as possible that he didn't avail himself of this option). Other people don't have lawyers for other reasons, though. Some jurisdictions have crappy PDs or appointed lawyers. Some courts encourage people to plead without lawyers, making them wait a long time if they want a lawyer, and getting them out more quickly if they say they'll waive their right to a lawyer. Other courts even suggest that the offer could go up if people insist on a lawyer (believe me, they always manage to say this in a cagey manner that doesn't say it directly, but gives the person in the position of hearing the statement come away with that unmistakable impression).

So, when Craig said that he pled to something that he didn't do, this is an area where tough on crime Republicans would normally scoff and say "yeah, right." But, as Craig shows us, this does happen, and people do have reasons to plead to things that they didn't' do. So, the next time you hear someone say "I took a deal, but I didn't do it," remember that he may actually be telling the truth. Don't accept that guilty plea as the gospel truth.

Update

Boy, did I blow it with calling Craig a senator from South Dakota. As Skelly correctly pointed out, he is from Idaho. I could blame it on some factor that deflects blame from me, but I'll stand up and take this blame.

Also, TPM has more, including the actual tape of the conversation between Craig and the officer who arrested him, as well as his plea agreement and swearing that he has no claim as to innocence.

It certainly makes it look as if he would have a more difficult time withdrawing is plea.

Thank you Skelly for the correction and update.

It's About Time - A Fair Legal Talk Show Host

Finally, an antidote to the facists out there like Nancy Grace. You should check out Jami Floyd and her show "Best Defense" on Court TV. She's apparently an ex-Public Defender from the Bay Area (although that appears to be a very small sliver of her bio - she still has it in her bones), but not afraid to say that someone's guilty. She's empathetic to the defense, what they have to go through in presenting their case and fighting the obstacles that get in the way of an effective defense, and she's entertaining.

Check out her webpage on Court TV's website, and check out her show sometime on Court TV. It's apparenlty on different times in different places (and I'm always at work then regardless), but she even has a segment on the show called "The Exonerated," about people who have been convicted, sentenced, served a large amount of time, and later exonerated. Nancy Grace would probably call that section "The Released Murderers," or "The Technicalities" (innocence being a mere technicality to her). Definitely worth a look for those looking for both sides of the story to be told.

Disclaimer - She linked to me while ago, I figured it was only fair to check her out and see what she's about, and talk about her if she and her show were worthy - they certainly are.

Client Blunders

I've been getting hit lately with huge blunders by my clients - that is, blunders my clients make as my clients, not blunders they make that turn them in to my clients. I guess that I'm not down about it, even though it is resulting in much longer sentences for them, which occur on my watch. I hadn't had a client get a life sentence in a long time, and I had only a few of them (less than ten) in my career, somehow I had been lucky and managed to avoid too many.

Then I did a trial a little while ago where the defendants (three of them) were offered 17 years for an attempted murder of 5 people in a shooting. Their maximum exposure was about 5 life sentences and 120 years (meaning, first you do the 120 years - 85% of it, then you do 5 life sentences (minimum time of 7 years each, then you're eligible for parole. Hint for the math impaired - they would never be getting out).

At first, none of the defendants wanted the deal. It was a package deal, meaning all take it or none take it. The DA's perspective is that they were offering the deal to avoid trial, and if one of them wants to go to trial, then they weren't getting their end of the bargain. Since the case was an attempted, premeditated murder, then the judge had no discretion to give them that deal in the absence of the DA's consent.

As we got set to start trial, the other two defendants decided they wanted the deal, but my client didn't. So, they were forced to go through trial. Honestly, my client's case was much better than the co-def's case, but my client was closely associated with the co-defs, and he was arrested at the location, and he was identified as being with them during the shootings (the DA's position was that he shot, but my investigation had revealed that he had probably not, and that his involvement was minimal). Based on my investigation, the Def said he wanted to fight the case, and therefore forced the co-defs to have to fight their case as well.

Trial proceeded, and it went very good for us, just as it was going very badly for the co-defs. However, there was still some evidence of my client's involvement. While arguing over the jury instructions, a light bulb went off in my client's head, and he realized (despite my repeated warnings to him about this) that he could be convicted as an aider and abettor based on his association with the co-defs. He then told me, right before closing arguments, that he wanted the 17 years. Unfortunately, that deal was now off the table (most deals are on the table up until trial only). The DA said no, the judge tried to convince her otherwise, but she stood firm - no deal, even for the co-defs, who were being dragged along against their will and facing a life sentence even though they had wanted to plead guilty.

Eventually, while prevailing on most of the counts, my client was convicted of 2 counts of attempted murder (but hey, they found that he didn't have a gun, so he only aided the 2 co-defs) and criminal threats (this time with a gun). Huge victory for me? Well, he ended up getting 6 years plus 2 life sentences (far less than he faced, but still more than he was offered at 17). Interestingly, he is actually eligible for parole in about 19 years (7 for each life sentence, and about 5 of the 6 years), but realistically, he will never be paroled (very few lifers actually get paroled in California, despite otherwise being eligible - but that's a different story).

Now, I didn't beg the def to take the deal when it was offered. I realized that his case was a shakier case, but based on his close association with the co-defs, coupled with his arrest at that location minutes after the shooting (just like the co-defs), I thought that he could be very easily convicted. I also thought that, technically, the evidence on his involvement in the SHOOTING (he appeared to be involved in some of the lead up to the shooting, if not the actual shooting) was thin, and evidence of his subsequent aiding and abetting was also thin, so I thought that it was close enough that I couldn't push him too hard to take a deal. It's a fine line, but when someone has a colorable claim of innocence, or lack of guilt, I don't feel too comfortable leaning on someone to get them to plead guilty. So, I laid it all out for him in a very clear manner, and let him decide, offering him my advice, but not pushing it on him (pushing your views on your client in a case like this can be a poisonous thing to do, and you have to be very careful about it).

So, a bad decision by my client, and now I have another person doing life.

Oh, that association with the co-defs I was talking about? The 2 co-defs were two of his three younger brothers. By his insistence on going to trial, only to change his mind at the end of trial rather than the start, he got both of his brothers life sentences that they would not have otherwise have received. Obviously, his close association was the fact that they were brothers, and the fact that they lived together, at the location where the shooting took place, of outsiders who were hanging around their neighborhood.

So, as bad as it may have been for me and my client, it was far worse for co-counsel and their clients.

PDs Better than Court Appointed Lawyers?

There's a new study out which compared how defendants did in the federal system over a several year period when represented by federal public defenders and by court appointed (or "Panel") lawyers.

Now, no disrespect to any of my panel brethren here, but the study reached the conclusion that public defenders are better. I have always agreed with that.

A caveat - most panel lawyers are pretty good, and most PDs are pretty good. I just happen to think - where I practice (I can't comment on any other place) - PDs are better. This could obviously be totally different in different parts of California, or of the country.

Here where I work, PDs get paid well, so they tend to stay with the office for a long time without leaving to go private. For this reason, we have a lot of experienced lawyers to learn from. These are people that we can lean on, watch in trial, and talk to daily about our cases. Because we have a bigger office than any private lawyer can have, we always have many to learn from.

Any case that I have, chances are someone else in my office has done something similar and has motions on the subject, strategies for dealing with it, and probably more experience than the prosecutor doing the same case. Furthermore, in dealing the case, we know what these cases have gone for the in past, and have a stronger basis to get that kind of a deal when we go to settle the case in our situation. Knowledge and experience are power.

That being said, there are plenty of great panel lawyers out there. Interestingly, in my experience, most of the best of them came from either the DA or PDs office (more so from the PD's office - no apologies there), where they had the volume of cases and experience to deal with huge numbers of cases.

At a certain point, there is almost no substitute for experience. Obviously, raw talent makes a difference, but, just like in sports, raw talent alone can't do it for you. You ever wonder how professional baseball players can backhand a screaming ground ball and casually throw out a runner from 3rd base like it's nothing? With years of rote practice. This is how us Public Defenders can pick up a murder case, look it over, and have a pretty good idea how they are going to handle it and how it is going to turn out after just a few minutes of reading the file. Baseball players practice for hours a day, every day, to perfect every aspect of their game. PDs do the same thing, handling case after case, and listening to their co-workers talk about cases, until they know these cases backwards and forwards.

Defendants complain that us PDs are in bed with prosecutors because we work with them every day (the first part isn't true, the second part is), these close working relationships appear to make a positive difference according to the study. This is cited as one reason that PDs get better deals for their clients, and have a slightly lower conviction rate at trial.

All in all, it's nice to see study of how us PDs aren't those worthless dump trucks so typically depicted by our clients, but more importantly, in popular culture nationwide. We are good, effective and experienced criminal defense lawyers that any person should be confident in trusting their lives to.

The Libby "Commutation" OUTRAGE

I had vowed that I wasn't going to blog about this one months ago (because I knew it was going to happen as soon as the guilty verdicts came down), and yet, I sit here in such a rage right now about the Libby "commutation" (I write commutation in quotes because if there is a person alive who doesn't believe that this is a precursor to a full pardon after the election, then I have a bridge to sell you - or better yet, a prior promise by the president to let the case "and it's appeals" run it's course). I know that several of you out there complain to me that this blog strays too often from being a public defender blog into a political blog -point well taken, but this cannot be ignored, and this is a public defender issue.

You see, I represent those who commit crimes and actually pay for them, because they are not rich, white and Republican. They go to jail because their crimes are the "bad" crimes, minority crimes, poor person crimes, etc. Maybe I wouldn't be so outraged if I wasn't so convinced that Bush and Cheney told the principles involved in the cover up (Libby & Rove) that they had better cover up the involvement of the top two, and in return, they would get pardoned. In other words, go ahead and commit a crime to cover up our act of treason, and we'll pardon you later. Is there a person alive who believes that Bush really believes the penalty for perjury and obstruction of justice are too harsh? Or is it only applied to Libby (in other words, in contrast to his statement, he really doesn't respect the verdict of the jury)? Has he been going through some introspection concerning the harshness of punishment of late? This, the most retributive of modern presidents, who has utilized the power of pardon and commutation less than any president in a century?

Of course not, there has been been a quid pro quo that has taken place here, which has shown this whole process to be a sham. The investigation into the leak, the special prosecutor, the trial - a joke, one big joke with the outcome predetermined. The only downside for Bush is that he was forced to play his hand before the election, and not after as everyone had been hoping by putting off the sentence until after the appeal (an appeal that never would've finished if it had extended past election day, 2008).

And why is this a proper subject for Public Defender Dude? Well, I'll tell you why Public Defender Dude is so pissed off, rather than me just as a political being. I represent people who commit crimes. They have only one advocate - me. They get convicted based on (sometimes spurious) evidence. They spend very long periods of time in jail for breaking those laws. To hear this president, who has been at the forefront of retributive justice his whole political career, to suddenly be concerned that the punishment is too harsh is sick. What is really going on here, as in the US Attorney scandal, is the utter politicization of crime -Republicans can commit no crimes, only Democrats or groups that ordinarily lean Democratic (ie - poor and minority people, or people out there trying to increase voter participation, or things of the like). Public Defender Dude is utterly seething right now because the fact that we live in a country where there is no equal justice under the law has just been laid bare for the whole world to see in the most blatant, sick, evil, cynical and despotic manner possible.

Think we live in a free, equal, democratic country? Ask my clients how true that is. Or just ask me. I'll tell you to think again.

I sincerely hope the Democratic Congress doesn't let this go. I have no doubt that this had been agreed upon in advance, and that this commutation and pre-pardon are nothing more than a continuing attempt to obstruct justice. Bush's dad did it with Weinberger, North, Poindexter et al. Ford did it with Nixon, and now Bush is doing it with Libby. And to think that Republicans became outraged at the Mark Rich pardon, and now may compare that to this pardon, or blithely ignore that prior outrage to applaud this, just makes me red with anger. They did the same thing with the Lewinsky affair to compare it to Watergate (not really because they meant to say that Lewinsky was that bad, but to attempt to lower the meaning of Watergate by debasing it with comparisons to something as meaningless as the Lewinsky affair). The same thing is set to happen here by the Republican spin machine - this is no different than the Rich pardon - not to make the Rich pardon seem so terrible, but to make this seem so banal.

It is the true banality of evil.

Now that I've got that off my chest, I feel a little bit better.

I want defend cops - I'll never lose

Maybe if I get tired of representing of losing trials at some point, I'll stop representing the poor people who did not choose to go the police academy when they were 19. It is apparent that it is close to impossible to convict a police officer.

Let this be a message to any client I represent in the future who says to me "the cops are lying, I want to go to trial!" that jurors, like the courts, and the rest of the government, tends to give blanket immunity for police misconduct.

How a jury could completely acquit Mr. Love, who shot an unarmed man who was lying on the ground and only began to get up at his specific command - and then lied about it in a police report, only to change his story when he saw the video of the incident, is beyond me. However, it's clear to me, the message to other officers is clear - shoot, kill, do whatever you want, just keep the hoard away from me. Laws, justice, the Constitution, all fine and well, as long as it is not followed in MY neighborhood by MY police men.

Oh, I really need a new job. I can work for the police union, and when I say to the opposing counsel "we'll go to trial," they will really be afraid, and I really may win the vast majority of my cases.

Has Libby's sentence created a new group of Right-wing civil libertarians?

I know it grows old, my harping on the right wing's constant attempt to be tougher and tougher on crime, to put as many people in jail as possible, to run campaigns on anger and fear, resulting in a 25 year growth of the prison industrial complex that is unprecedented in our history. And I know that Dems now do it as well (they learned their lessons from Dukakis, after all, that being against the death penalty, for instance, wins them no elections). The question I have is whether the Libby conviction and sentence will be a watershed, or if the words we are hearing spoken from leading conservatives in this country are principled objections, or two-faced political blather designed to back up the notion that conservatives can never be guilty of a crime (if they were doing those crimes to further conservative causes).

So I have to ask, will the Libby situation change anything? Will the constant calls to pardon him right now mean anything? Will the comments that he was the victim of an overzealous prosecutor have any spillover to the overzealous prosecutions of people like John Walker Lindh (the "American Taliban"), Martha Stewart, or the numerous other attempts to criminalize what is otherwise non-criminal behavior.

Or, will this create a change in the really absurd law that it is against the law to lie to a federal agent. Think about it, they come to you, ask you questions, and the law requires (not under oath, mind you), that you have to tell them the truth? So if they come up to you and ask if you have pot on you, you have to answer yes or go to jail? Give me a break. But that is another law that pushes jail for things that really should not have people locked up.

So, as the jails fill with people like Scooter Libby (and I fully admit that if this wasn't a general in the war on America launched by the right wing, I would normally oppose his incarceration for an offense like this - but hey, you reap what you sow), will this begin to change the sentiments of the nation by changing the sentiments of the right wing?

Will the numerous briefs submitted by right wingers like Robert Bork (who has probably never seen a prison sentence - of non-conservatives - that he didn't like) challenging the conviction and sentence cause a ripple in the rest of the criminal justice system to finally begin toning things down?

Don't bet on it. This is not principle we're dealing with here, this is bare knuckled politics. There is no disagreement with the basic conservative doctrine of running on fear and vilification, and combating obstacle with as much brute force as possible. There is only the problem that it hit a high profile conservative this time. Rest assured, Bork, Gingrich, and the other cast of characters now calling this sentence unconscionable will be standing front and center vilifying "liberal, activist" judges the next time a sentence is reduced against someone who's not a card carrying member of the conservative movement. And they will do it with a straight face in the manner that only a true hypocrite can.

Bet on that.

Bye, bye, Nifong

Astounding as it is, the state bar of North Carolina has disbarred a prosecutor for ethical violations in prosecuting a case. Suffice it to say, getting a prosecutor disbarred for doing their core duties (as opposed to doing something unethical outside their duties, such as committing a crime on their own time) in an unethical manner is an unusual occurrence. North Carolina has a pretty tepid history of punishing prosecutors who withhold evidence. In the case of Alan Gell, prosecutors withheld important exculpatory evidence and gained a conviction putting Gell on death row for 9 years. He was lucky enough to get a new trial and get off death row in an unusual manner - through exoneration. Consider him lucky. In that case, and another, prosecutors got off with barely a slap on the wrist for wrongly putting someone on death row. You can read more about those cases here.

It is hard not to be a little cynical about this whole thing. As I've discussed previously, one of the main reasons this case has made the press, and that Nifong is getting the book thrown at him, has to do with race and class. Obviously, we all know that the defendants in this case were white and relatively well-off (playing an "upper middle class" sport lacrosse no less) and that the victim was African American and poorer. I don't think that it's a straight race or class issue, but both work hand in hand to create a very dynamic for these defendants and prosecutor than you'd see in your typical case (typical cases involve poorer people and higher percentages of minorities).

This is why prosecutors can withhold evidence on poor minorities (or even poor white people - Gell was white), and generally escape serious punishment. Now let's be clear, Nifong did some serious digging here, putting himself front and center of this absurd prosecution -probably in order to ensure his re-election. So, he was not your typical prosecutor withholding evidence, but it does bear some scrutiny that Nifong did things that prosecutors everywhere have done (I'm not saying that all prosecutors, or even that a large percentage of them, do this. Far from it, it's a small minority, at least where I practice), yet most prosecutors face little or no sanction for doing these things.

And what is the message to other zealous, or especially overzealous, prosecutors? The message is that you can continue to do this without real fear of sanction. Think about it. You're a prosecutor in a heinous case with a defendant you despise. You believe he did it, but you know you probably can't prove it. You can withhold a little evidence, plead ignorance, and have the person go away for a decade or two before his case gets reversed (which is a longshot anyways, since 90% or more of all appeals are denied anyways - even for likely innocent people - think "harmless error"), if it gets reversed at all. Or you can be ethical and watch him get acquitted right now, possibly hurting your chances at advancement within your office. Moreover, it's a blow to you personally.

Most prosecutors won't care, they'll do the right thing. However, there are a number of overzealous ones out there, aware of the manner in which the courts and state bars enable this activity, that will do the wrong thing - just because they can.

It's nice that Nifong got nailed, and got nailed the way he did. I rather think it has more to do with the type of person he dragged down rather than what he did. He went after otherwise really good people whom he dragged way down in contrast to otherwise unremarkable, or even bad people, who didn't fall far from where they already were when ensnared by unethical prosecutors. I'd like the punishment to prosecutors to be the same regardless. Remember, Nifong felt like he could act with impunity towards these otherwise good, law abiding, people only because of the well-trod path laid out before him by his predecessors. That should scare everyone.

Paris Hilton - Political Prisoner?

Alright, I have no sympathy for Paris Hilton. I think that she has spent a life of absolute debauchery brought upon by her extreme wealth, where nothing has ever been asked of her, only that she have a pulse. By her good looks and her money, she has become, to some, a celebrity. To me, she represents much that is lamentable about our society and its love of wealth and celebrity, and our willingness to lionize people for pretty much no reason at all.

When these otherwise worthless people commit crimes and get treated better than my clients, by virtue of their wealth or celebrity, it pisses me off. First of all, it gives us Public Defenders a bad rap - people assume that the reason we can't get them the same results as the Paris Hiltons in the world is because they don't have the money to hire a high priced group of lawyers like she can, and they're stuck with worthless lawyers like us. In reality, the reason they don't get the same deals as the celebrities is because they don't have enough money to hire the publicists that the celebrities do. You think many of those lawyers know the ins and outs of the criminal justice system better than those of us in court every day do? Not a chance. Some do, but not most.

That being said, Paris is clearly bearing the brunt of the backlash to her ephemeral celebrity status, the fact that she's well known for being well known, and being vacuous at that. I disagree with those who contend that no one gets long jail sentences like she did (long?) for driving on a suspended license and violating probation. I haven't done misdemeanors in over a decade, but when I did them, people regularly got long sentences - longer than this - for driving without a license while on probation for DUI. It was not unusual at all, and the fact that Paris got her 45 days was, frankly, not a huge surprise.

The area that she was mistreated was in the judge going out of his way to ensure that she spent her time in county jail, rather than on house arrest or, more likely, in a city jail (ie - private jail, or a much more cush jail). Like I said, I haven't done misdemeanors in a while, but when I did, I almost never saw a judge deny someone city jail when they requested it. I have even seen judges allow it for felonies, although most local jails will not accept felons in most situations. The jails cost about $100 per day, although they have deals for longer stays, and sometimes will waive some costs for poorer people (although that's rare). The stays are usually not that long, but I had a client do it for 90 days or so in a possession of marijuana for sale case (a felony). I have even appeared in front of this judge before and never heard him expressly deny someone city jail if they requested it (although I don't remember anyone requesting it).

However, the judge went out of his way to ensure that nothing of the sort would happen in this case. He (rightly) reckoned that if she was allowed to go to a city jail, it would have almost no deterrent effect on her, and it would be a drop in the bucket financially. But, the only reason that he knew this was because of who she was. If she was some other wealthy (but unknown) person who appeared in court on a case, he would probably have let her do the city jail, or house arrest.

And most certainly, if the person in this case was not Paris Hilton, the Judge would have never known that she had been released early (something that happens all the time in Los Angeles County due to overcrowding or other reasons). The fact that she was well known and an international firestorm took place when she was released alerted him to this fact that happens every day in his court. I could almost guarantee you that if you look up all of the booking numbers of people sentenced to jail for similar sentences by this judge on this day for similar offenses (and he handles almost no other kind of case), you would find that many of them have also been released by now as well. The judge probably has no clue about this, nor would he ever care or find out, because none of those people are Paris Hilton.

So, I think, on balance, that Paris got screwed. I have no sympathy for her, and it's probably time she got the short end of the stick for once, considering that she has gotten the long end of the stick her whole life. However, it's nice that I can point to all of our clients in the future when hey complain about me and say "hey, it could be worse, you could have Paris Hilton's lawyers, look what they did for her!"

UPDATE - I've already found 2 instances of women sentenced at the same courthouse the day after Paris who did dramatically less time in jail than Paris is slated to do. Poor Paris.

Ashcroft the hero of the 4th Amendment???

Over at Talking Points Memo, Josh Marshall has given voice to some of the murmuring about whether former Attorney General John Ashcroft is a 4th Amendment hero in light of former Deputy Attorney General James Comey's testimony before Congress last week.

For those who somehow missed this firestorm, evidently Bush Chief of Staff Andrew Card and Counsel (and present AG) Alberto Gonzalez raced to the hospital bedside of Ashcroft to attempt to reauthorize the illegal wiretaps that they were conducting outside of FISA (Foreign Intelligence Surveillance Act). This despite the fact that James Comey was acting AG in light of Ashcroft's surgery and hospitalization (and opposed to the extrajudicial surveillance). Comey heard about the pending visit, and raced there ahead of them, prompting Ashcroft, in his weakened state, to stand up and oppose it when Card & Gonzalez got there, with everyone threatening to resign if the plan went forward over their objections.

Dramatic stuff, and it certainly paints Ashcroft in a more favorable light than someone of the ilk of Public Defender Dude would normally be inclined to give him credit for (and you can go to the TPM article for more details on the many reasons to have disliked Ashcroft over the years).

More interesting to me is, how do we explain this? Was Ashcroft not as right wing and ideological as we thought? Did we underestimate him? Were these other people just so over the top that they made him look moderate?

I have a theory. Generally, I think that Ashcroft is as right wing an ideologue as we are ever likely to see. However, he has a very specific ideology that adheres to some basic principles, some of which he actually shares with those on other ends of the political spectrum (such as some degree of adherence to the 4th Amendment). It is possible to go too far for even his principles, despite the fact that his regular state is so far over the edge already. Be that as it may, he is a person of principles, and when dealing with people of principles, it is possible to go too far.

I believe that the Bush Administration is filled in many respects with people without any principles except power. The rot obviously starts at the top, but it is exemplified by people like Cheney, Harriet Myers, and Alberto Gonzalez - who appears willing to destroy the Justice Department and decades long traditions of non-political interference in the administration of justice in order to achieve short-term political gains, such as having a few hundred less people vote in some jurisdictions in order to possibly swing those votes in the GOP's favor.

Gonzalez is one of the greatest examples of a lack of any discerning principles except power. When he served as Chief Justice of the Texas Supreme Court, he struck down a law that required parental consent for abortions, angering many right wingers. I don't believe that he had any strong moral principles that made him do this (nor any compelling legal authority - the Texas Supreme Court had upheld laws banning sodomy). Later, of course he has become one of the great fighters against abortion in all circumstances, with his latest victory in the Supreme Court, it is apparent he and the Bush Administration have left Roe hanging by the most narrow of threads (one more resignation - that's all it takes. Hold in there John Paul Stevens).

In office, Gonzalez has shown a willingness to sign on to anything that Cheney has asked him to do, without the slightest reservations. Whether it is the torture memos, the surveillance program, Guantanamo, and lord knows what else (the signing statements?), he is willing to go with anything in service of power - his, and his governments. He is willing to provide the flimsiest of legal justification for whatever action the Bush administration wants to take.

Cheney and Bush, of course, wish to do whatever they want as leaders, and have only the slightest regard for the democratic process, here or in the rest of the world. Principles are completely divorced from their manner of governing. They have brought quite a few lackeys along with them that apparently agree with that.

Gonzalez is clearly one of them.
Ashcroft was clearly not. He agreed with them vociferously on 95% of what they did, but that 5% went so over the line, it was apparently too much for even him.

What can we make of the Duke Lacrosse Rape case?

I don't have a huge amount of time to blog about this right now, but the case clearly cries out for a comment or two from a public defender perspective. Let me make it perfectly clear. Had these gentlemen been from a poor minority neighborhood, had they played a less genteel sport than lacrosse (like, say, basketball), there is a very good likelihood that these people would've gone on trial a long time ago, or at the very least they would have taken a deal on the case.

Why?

First of all, they would have spent the whole pretrial period in custody. They would not have been able to go on TV all the time, looking dapper, standing by their lawyers as the lawyers proclaimed their innocence on national TV.

The typical response from society - oh, these poor guys, what they must be going through, would be totally different if they were poor and minority. Instead, it would've been, what do you expect a bunch of minority basketball players from the ghetto to do? That is, if the case had even been publicized.

Usually, publicity is bad for defendants, unless they're innocent (or the case is extremely weak), like in this case, or the Kobe Bryant case. In these cases, publicity continually points out the weaknesses in the case, and acts a constant pressure point against the prosecutor to show how the initial inclinations against guilt are wrong, and how the person really is guilty. This means that they are constantly scrambling, responding to press leaks, and things of the like, instead of sitting back and watching the defense scramble.

Rest assured, had these been really poor people, there would have been no real presumption of innocence like there was in this case, there would have been no national lamenting that they were being railroaded.

Late discovery? HA! I had a DA one time not turn over any of the evidence that my client was innocent until after the preliminary hearing - a preliminary hearing where she put on evidence and opinions that were completely contradicted by the evidence she suppressed from me until after the preliminary hearing. Why did she do this? Because she can, because she was an evil DA who would do anything she could to get a conviction, and because no one really does anything about it. The DA in the Duke case faces ethics charges, let me tell you, you can probably count on one hand the number of California DAs who have ever even been referred to the State Bar for ethics charges for things like this, let alone actually charged, let alone actually punished.

And finally, depending on the lawyers they got, there is a very good likelihood that these people would've been convicted had they been poor minorities. Without the real presumption of innocence, with the full resources of the state against them, with the word of even just one shaky witness, that is sometimes all it takes. Hell, with the way the California Courts rule on hearsay and things of the like, the prosecution maybe could've gotten a conviction here without even putting the victim on the stand. And there would be absolutely no one to yell and scream about it - except the defendants' families, and no one really listens to them anyways.

And finally, had the DNA evidence come back a year or so later exonerating the defendants, despite the DA having withheld it, plenty of corrupt California Courts would've found that it was "harmless error." After all, just because someone else left semen in her didn't mean that these people didn't rape her.

So, while letting out a nice sigh of relief that these innocent people were exonerated, just remember, there are dozens, probably hundreds, perhaps more, just like them. Facing charges on extremely weak evidence with over zealous prosecutors and compliant courts that will do nothing to stop them.

This case is not a case that can allow us to breath a sigh of relief, and to say "this proves that injustices are caught," but rather one to say "what if," and to wonder what might have been.

"Prior Bad Acts" and the Phil Spector Trial

It is an axiom of the law of evidence in criminal law, for centuries, that one's character cannot be used against one in a prosecution. The theory is that people should be convicted of crimes based on the evidence of these crimes, and not based on their character. Consider how easy it would be to convict just about anyone of a heinous crime if all one needed to present at trial was the fact that this person was a really bad person who had done bad things in the past.

For example, Charles Manson (generally the poster child for evil) is currently housed at Soledad Prison in California. Presumably, people get killed there with some degree of frequency. Assume that someone dies there, and it's unknown who did it, but perhaps Manson had the opportunity to do it. Imagine how easily a prosecutor could get a conviction against Manson if all he had to do was present evidence of what an evil guy Manson is? There would be no need for real evidence linking Manson to the crime, because most juries would be inclined to convict Manson no matter what.

However, California courts have, over the years, stripped away at that theory. Under Evidence Code Section 1101(b), and due to several California Supreme Court rulings, more and more prior bad acts of defendants are now admitted for purposes of proving that they committed the present offense.

A couple of years ago I had a murder case that was a "whodunnit." No issue at all as to motive, or intent, just who did it. There were serious doubts that the defendant was actually the one to commit the crime. The prosecution tried to present evidence that my client was convicted over a decade earlier of robbing a liquor store with a gun in order to prove his intent was robbery in this case. It was outrageous, and the judge fortunately forced the prosecution to accept a stipulation as to all elements of the crime except identification in lieu of letting in the evidence (the prosecutor would have much preferred to have brought in the priors, being far more harmful to my client than the admission that the crime was committed for purposes of robbery). Of course, the case hung, and was set for retrial. Another lawyer did the 2nd trial, and this time the judge let in the priors, and this time the defendant was convicted in mere minutes, and sentenced to life without parole plus an extra 200 years or so for good measure. the case was reversed (thank goodness, the person really was innocent).

Which brings me to Phil Spector. As noted in this LA Times article, the prosecution is bringing in evidence that Spector has menaced women with guns in the past, and harbors animus towards women in general, treating them with contempt and violence. The situation here is different, though, and actually points to areas in which the courts have probably correctly ruled that this type of evidence is admissible.

In the Spector case, the defense has alleged that the victim killed herself, or that the incident was an accident, or mistake, but that Spector never intended to kill the victim. The prosecution seeks to present these prior incidents to show that this was no mistake, or accident, but that this is consistent with Spector's pattern of activity. Consider the contrast with the case I had, where the only issue was "whodunnit," and the prosecution was putting on this evidence as straight character, for purposes of identification. Here, the evidence would rebut Spector's claim that what happened was not a volitional act on his part. This would be a more correct interpretation of the law (I'm convinced that the judge in my case was either really stupid, or really evil, or both - and he was reversed).

There is little danger in the Spector case that he will be falsely associated with the case due to this evidence - it was at his house, and she died with his gun, and he was the only one there. He has presented a scenario of how the crime took place that is at odds with his past. It's not like he's saying "I didn't do anything," and they seek to use evidence that he slapped his wife before to show that he's done "something" in the past. Here, the victim is killed in a relatively peculiar way, and the suspect denies involvement by trying to exculpate himself with a specific story. However, it's been shown that has acted in a very similar manner to this before.

It's a close call, but not that close. Judge Fidler has let some of this stuff in previously, I'm convinced that he'll let this in as well. If he excludes it, it will only be due to the lateness of the discovery, and probably not do to the relevance objection.

Gang Prosecutions - Politically Correct Prosecutions going after Low-hanging fruit

I've written about it before, but it's become ever more absurd where I practice law. As noted in this Los Angeles Times article, the Los Angeles DA is filing ever more cases with "gang allegations" against people, no matter what the case, increasing exponentially the amount of time people are getting in prison.

First of all, what am I talking about? California has passed a number of laws aimed at gang members over the years, generally in Penal Code Section 186.22. They have basically made it so that if a gang member commits a crime, the punishment is significantly larger than if any other member of society does it. Fair enough, one may say, gang members are wreaking havoc on society.

But, consider the effects. 18 year old kids who spray graffiti on a wall are suddenly being punished not with misdemeanors and a few hours of community service, or even a little bit of jail, but with felonies. And not just any felonies, but due to the gang allegation, the charges are now "strikes" (meaning that for the rest of the kid's life, he faces prison for any offense, no matter how minor, and possibly 25-life for even the most minor of offenses. This follows him forever). Furthermore, they face mandatory PRISON when convicted in most cases (that's to be contrasted with county jail, which people normally get). The prison minimum is generally at least 3 years 8 months, and can go up to 8, 9, 10 years for some of these extremely minor offenses.

Again, we hate gang members, so what the hell, they deserve more than the average person, right? That's the general consensus among society.

However, it gets even worse. Due to the fact that there is this "allegation," it must be proven to the jury. How is that proven to the jury? A police officer ("gang cop") gets on the stand and talks about how evil gangs are in general, how evil this gang is, and all of the terrible things the gang has done. They talk about what great ties this person has to the gang, what his nickname is, and generally slimes him by association with others and the things that they have done.

So consider a robbery case, one committed by a gang member, another committed by a non-gang member (or a gang member against whom the prosecution chose not to pursue the gang allegation). In the case without the gang allegation, the prosecution must prove that this person committed the offense, and if identity is not very strong, the person may very well be acquitted due to the weaknesses in the identification.

In the case of the defendant with the gang allegation, the prosecution will also present a huge amount of evidence that will amount to, not only bad character evidence, but, even worse, character assassination using guilt by association. The identification against the person may be weak, but no matter, the jury will hear all of this evidence about what a bad person this defendant is, if only by way of his associations, and will feel that where there is smoke, there must be fire.

Think about how insidious this is when the prosecution starts seeking more gang allegations against people. This means that more and more people will be charged with exceptionally weak cases, with the prosecution knowing that these people would never be convicted absent the gang allegation. Or, you get cases where the prosecution wants someone so badly that they file gang allegations on people who have weak cases just to strengthen the substantive guilt part of the case.

The net result, more innocent people convicted, more cynical presentations to the jury ("he's a gang member, convict him or else he'll go out and do a drive-by in your neighborhood"), longer prison sentences for less and less serious charges. More people saddled with strikes that result in life sentences later for ever more minor offenses. People who make minor mistakes as kids that they used to be able to outgrow now following people forever, with no chance of redemption.

I can't tell you how many ex-gang members there are out there in society who are making good with their lives in their mid-20's into their 30's and beyond. They are all over, although you probably don't notice them anymore. They could be waiting on your table, or supplying the restaurant that you go to, or even could be your professor at college. These 2nd chances are a hallmark of democratic society that allows for people to move from one strata of society to another. By taking these chances away from kids when they are very young, forever, we risk creating a permanent underclass, and worse. We risk pushing people like this into permanent gang status (they have no incentive to leave because no other part of society will ever take them) or warehousing them forever for even the most minor types of offenses imaginable.

So, there are very real world consequences for these idiotic choices that the prosecution have engaged in pursuing excessive gang allegations against these teenagers. And it is only going to get worse, in the minds of prosecutors, these are not people, only low-lying fruit that is ripe for easy picking.

6 Month Hiatus - Over?

I can't believe it's been 6 months since I've last blogged. Things had slowed down for me dramatically, mostly because I've been so busy (it's good to know for all of you taxpayers out there that Public Defender Dude has been earning his keep while eating at the public trough).

It's not that I've lost inspiration, things I see still bother me quite a bit. I've done several trials of late where absolutely absurd gang allegations were being charged against my clients, completely depriving them of a right to a fair trial. One was in an attempted murder trial that the police claimed to have witness my client do, which I hung. The other one was a robbery case that was a complete ID case, in which I'm quite sure the jury heard enough of what they needed from the gang officer to convince them that any two people sitting in the defendant's chairs with those tattoos would've been enough to convict (not to say that the person may not have deserved to be convicted, but I'm quite sure that the burden of proof dropped dramatically from beyond a reasonable doubt to something less after the cop's gang testimony).

One reason I haven't commented on those trials (don't worry, I've done others as well), is that, as a pretty anonymous blogger, too much comment on those trials during the trial would completely blow my anonymity. The other reason is that I'm just too beat, and there is just too much to say. Synthesizing it down to a single post is just too difficult.

I also get the feeling I've said so much about so many of the other things on my mind, it would just get too redundant.

So, I've said nothing.

That being said, I have quite a few thoughts on things such as Phil Spector, the firings of the US Attorneys, Scooter Libby, the death penalty, and other things.

So, I'll be back sooner rather than later, probably with a little blurb on Spector or the US Attorneys, or the future indictment of our present attorney general. There is just so much to talk about, I've been paralyzed by too many choices. Forgive me, to those who have written me emails wondering where I've been (and there have actually been quite a few). But, you've got me back.