Saturday, March 30, 2013

The origin of gay marriage

Rick Santorum thinks no one had any thought of gay marriage until the big, bad flaming gays on Will & Grace put the evil idea into our heads.

Silly man really is out of touch. Anyone who watched NBC's Must See Thursday line-up from the 90s knows Carol and Susan held a lesbian wedding on Friends 2 1/2 years before Will & Grace premiered. Friends never gets the credit it deserves.

Thursday, March 28, 2013

Gee, of course the death penalty isn't racist

People always like to try to argue against the claim that the death penalty in this country is infected by racism.  Here is one case that undeniably has an ugly streak of racism running through it. During the sentencing phase of Duane Buck's capital murder trial, the state presented evidence to show that Buck would be a future danger to society. A psychologist with a history of working in corrections testified that race of a defendant was a factor to consider in determining future dangerousness.

“You have determined that the sex factor, that a male is more violent than a female because that’s just the way it is, and that the race factor, black, increases the future dangerousness for various complicated reasons,” the prosecutor asked Dr. Quijano. “Is that correct?”
“Yes,” he replied.
Way back in 2000, a review of cases was done in Texas to identify all the cases where this doctor testified that race was a factor in determining future dangerousness. The other five are all off death row. But Duane Buck is unlucky #6 who can't seem to get the state to agree that his sentence should also be vacated. This article doesn't do anything to explain why Buck's case is being treated differently from the other five. Is it just a matter of being from a different county with a different prosecutor? You would think that having both a victim and one of the original prosecutors backing his efforts, Buck would be likelier to succeed in seeking sentencing relief. So I just can't imagine what the hang-up is.

If Duane Buck doesn't get relief on this claim and is ultimately executed, we can't have any doubt that racism played a role in it. You can't make claims at a black man's capital sentencing trial about black men posing more of a risk of re-offending than other defendants and then say race wasn't a factor in the decision made at that trial. You can't bring those thoughts into a trial in a nation with our racial history. Hell, you can't pursue the death penalty against a black man in a nation with our racial history without racism playing a role. Can't be done. (Just like Germany won't touch the death penalty with a ten-foot pole because that nation has a rather unfortunate history with its government killing people.)

I can already hear the death penalty apologists saying I'm crazy. It's just one guy. There's no reason to assume the jury considered race in choosing death. They might have had other reasons. Or that it's not a matter of racism that black men commit a disproportionate number of murders, ergo it's not a matter of racism that they get sentenced to death at a disproportionate rate.  Here's an idea. There's one sure way we could end the argument. We could just stop the executions. No death penalty, no cries that it's racist. Works for me.

Tuesday, March 26, 2013

Musings on the Prop 8 argument

You know, for all the talk we've heard today about the Prop 8 oral argument, my assessment after reading the transcript is that we really didn't learn anything.

It wasn't news that the Prop 8 proponents can't actually identify any harms to so-called "traditional" marriage from extending marriage rights to same-sex couples. Nor was it news that their argument itself is pretty darn flimsy. Even opponents of marriage equality have to admit that the legal justifications offered for denying marriage rights aren't terribly compelling.

It wasn't news that Scalia is squeamish about the gays. Anyone who read his dissent in Lawrence v. Texas was already well aware of his discomfort with the whole idea. His bizarre series of questions to Ted Olson, who argued for the opponents of Prop 8, frankly made him seem a little unhinged. I got the sense Olson had no idea what drug Scalia was on. I think it also revealed at least one deep flaw in Scalia's claimed view of Constitutional interpretation. Scalia claims he interprets the Constitution based on what the commonly-held view of any particular provision was at the time that the provision was adopted. This is how he gets away with saying things like gender discrimination isn't covered by the Equal Protection Clause. Because even though the plain words of that Amendment don't exclude women, the people who voted to adopt that Amendment certainly didn't mean for women to be equal under the law. (If that alone doesn't prove that his claimed style of interpretation is dead, dead wrong, I don't know what will convince you.)

Anyway. He badgered Olson to tell him exactly at what point prohibitions against same-sex marriage became unconstitutional. He wanted to know a date and proclaimed that he couldn't know how to decide the case if Olson couldn't answer that question. Olson did his best to say what an odd, unprecedented question that was and that no court ever has thought about any sort of issue that way, but it would have been nice if one of the other justices could have stepped in and changed the weird subject. Roberts did try, but Scalia was like a dog with a really odd bone. Maybe this doesn't seem like such an odd sequence to you, but to an experienced appellate attorney, it was a very bizarre line of questioning.

In my reading, I don't see any questions posed by any of the justices that should make anyone nervous that their vote might be shockingly unexpected.

We did learn that Scalia doesn't seem familiar with the concept of the US Supreme Court dismissing a case as having been improvidently granted. This came up during the proponent's rebuttal when Sotomayor pondered if the Court had taken this issue too early in the history of same-sex marriage. Scalia's response was along the lines of, "We can't do that bizarre and unheard of thing you're suggesting!" Which struck me as odd because it's so not-unheard of, there's a term for it.

In the end, there was really only moment that excited me. Equal Protection cases are, ironically, not treated equally. There are three levels of review. For laws that separate people on the basis of a suspect classification, appellate courts apply strict scrutiny, the highest level of review around. That pretty much only applies to race and religion. Then there's this squishier intermediate scrutiny that sex classifications get. All others receive rational basis review. For some time now, there's been a fight going on about what kind of review sexual orientation classifications should get. Generally, we're still kind of stuck with rational basis review.

This topic came up in law school and I remember pondering to the class how on earth there was any question because issues relating to sexual orientation are almost always discrimination on the basis of sex. None more so than the marriage issue. I mean, what's the line anti-same-sex marriage people love to say? Gays can get married. There's no law against a gay man getting married. He just has to marry a woman. Sure, the effect of laws prohibiting same-sex marriage is that gay and lesbian persons can't marry the person they would choose. But the actual legal prohibition is about the sex of the two parties, not their sexual orientation. To me, this seems clear as day, but I remember everybody in my class looking at me like I was nuts. (Did some people think I was somehow making light of discrimination against gays? I was just, and still am, trying to make the best argument for why discriminating against gays is unconstitutional.)

I wrote before that I was finally vindicated a tad when the federal district court judge who heard the Prop 8 trial wrote a long, thorough opinion in which he said what I've been saying all along: bans on same-sex marriage are sex discrimination and therefore merit higher scrutiny than mere rational basis. (Of course, he went on to say Prop 8 doesn't survive rational basis scrutiny, either.)

So my very favorite moment from today's argument was this:  Justice Kennedy asking, "Do you believe this can be treated as a gender-based classification? -- It's a difficult question that I've been trying to wrestle with."

Come on, Kennedy. Come to the light! It's not a difficult question, not at all. Judge Walker laid it all out for you in that opinion he wrote just for you. If you want to pick my brain on the idea, I'm available, Your Honor.

I have no idea how this case will come out. Maybe it'll be a 4-4-1 vote. Four for, four against, and Justice Kennedy ruling it should be dismissed as improvidently granted. A tie would mean the lower court ruling (declaring Prop 8 to be illegal) would rule. Maybe the decision will focus on the idea that the plaintiffs didn't have Article III standing to bring a federal case. I've got to say, I'm much more interested in tomorrow's DOMA case. That argument will be far more illuminating, I think.

We can never stop this insanity, can we? Certainly not if the rational "experts" perpetuate it.

I do not want to get sucked back into the Amanda Knox insanity. I really don't. It is supposed to be over. But somehow that case has seriously gotten under my skin because it is the nuttiest, scariest travesty I have ever seen. The cadre of internet trolls dedicated to spreading outright lies to convince people she's guilty. The way so many of these untruths have made their way into the cultural zeitgeist, so even respectable news outlets report them without realizing their falseness. How many news reports, for example, talk about the DNA on a knife without ever mentioning that the knife does not match the victim's wounds or the bloody imprint of a knife left on her bed? (Never mind that the "DNA" was actually starch, most likely from bread.) I cannot think of any case ever that has involved so much and such widespread false information. And such a committed group of people engaging in a coordinated effort to spread that false information. They spread the lies so far and so fast, it's impossible to fight it. So I wasn't going to blog about it again. I was going to be done.

Until I saw this story on today. And now I have to give Alan Dershowitz a tongue-lashing. (A keyboard-lashing?) Because I expect more of an attorney. I expect more of any attorney, really, but especially someone who has established such a reputation, has defended criminal cases, holds himself out as an expert, and makes part of his living by being someone the public can turn to for reliable analysis of legal matters.

With his reckless comments on this case today,  he has utterly failed in his duty to provide reasonable analysis based on a thorough review of the matter at hand. I have previously complained about these legal pundits who don't bother to educate themselves before expounding far and wide. It's irresponsible, to put it nicely. But it seems to be exactly what Dershowitz has done because there is no way any credible, rational criminal lawyer can research this case and find the evidence supporting conviction "pretty strong." For crying out loud, the appellate trial (the first appeal in Italy is a full, fact-finding trial complete with jury, not at all like our appeals) didn't just find her not guilty; they affirmatively found her innocent. That's a pretty good indication the evidence against her is something other than "pretty strong."

I also find it beyond frustrating when people with experience in criminal defense act like it's so shocking and such clear evidence of guilt that she was badgered in an overnight interrogation in a foreign country to give a rambling, incoherent statement that maybe she imagined being in the kitchen and could in that imagining see the suspect the police identified for her being there. The very morning after this interrogation when she got away from that police pressure and got some rest, she immediately wrote that none of that seemed real and she was sure she and Raffaele hadn't been there. To anyone with criminal defense experience, the garbled statement she gave (which, yes, unfortunately implicated an innocent man) is a textbook coerced statement. That imagining language, the hypothetical stuff, the "maybe you had a dream" stuff is the hallmark language found in false statements. (Read John Grisham's "The Innocent Man" or Robert Mayer's "The Dreams of Ada.") False confessions, including false implications of others, aren't uncommon. They are found in 25% of innocence cases, sadly. Because it's remarkably easy to get a sad, tired, confused, frightened person to say what you want them to say, regardless of that statement's truth or the consequences of making the statement. I really expect someone of Dershowitz' caliber to know and understand these things.

I'm truly ashamed of Dershowitz for these comments. I'm ashamed of every legal pundit who is refusing to call this absurd spade of Amanda Knox's persecution the absurd spade it is. There is no virtue in refusing to come to the only logical conclusion a dispassionate review of the evidence can lead to. But if you aren't willing to engage in a thorough, dispassionate review of the evidence, you don't have the right to spew your opinion as if it's worthy of credibility because of your expertise.

My first thought about the Prop 8 argument

Remember a few weeks ago, when I argued that all of the Supreme Court's arguments against putting video cameras inside the courtroom are totally specious? Well, today's coverage of the Prop 8 argument utterly and totally proves my point. Since around 11 am CST, audio recordings of the hearing have been readily available online. The evening news coverage was exactly what I predicted it would be: those artist's renditions of the justices as the graphic while the justice's words scrolled on the screen as the audio of the words played. So how exactly would the presence of video cameras instead of just audio cameras and observers in the room change anything?

They wouldn't. There's just no good reason for not putting a camera in the courtroom.

The Amanda Knox farce continues. Sigh.

I have often said I could never be a trial attorney. They do things weird in trial court. They don't always read statutes or check case law before acting. Motions that should win get denied for no reason. It's kind of the wild west down there and I wouldn't make it long before I would hurl a statute book at someone. I need things to be right while the district court needs things to be fast.

But there is one place I would be even less successful: Italy. Holy cow, is that country's criminal justice system a mess. And so perfectly willing to trash a young woman's life for all times just because, well, because you don't like the look of her.

That's all the Amanda Knox case comes down to, you know. There's no evidence against her. Not one single shred. But in Italian courts, apparently that's just proof that you're guilty because obviously you cleaned up! (While magically managing to leave the actual killer's trail of bloody footprints untouched. Impressive and clear evidence that you are cold and calculating.)

And then in Italy, when there's no blood found, that's clear proof that there is blood! And a knife that absolutely couldn't be the murder weapon based on its size becomes the clear murder weapon! And the speck of biological material on that knife becomes not starch from bread but DNA of the victim! And in Italy, there's no such thing as an interrupted burglary where the burglar (whose DNA and bloody footprints are all over the crime scene, btw) kills a resident who comes home while he's still there. No, obviously that doesn't happen but drug-fueled sex orgies turned murder committed with total strangers do!

So when an appellate trial in Italy, which is a trial with a jury unlike our appeals, hears all the evidence (again, unlike our appeals where facts can't be litigated), comes back with a finding not just that Amanda Knox and her sad former boyfriend are not guilty but are officially  innocent, it shouldn't surprise us at all that the higher appellate court in Italy can say totally innocent means they must be tried again! I couldn't work in a system that tolerated this kind of nonsense.

But I have to believe in the end, this will ultimately go away and sanity will prevail. I just have to because I might go insane otherwise. Here in the US, we eventually saw the error of our West Memphis Three ways, right? So surely some power in Italy will finally acknowledge the painfully clear truth that is there for anyone who can see: that Rudy Guede and Rudy Guede alone killed Meredith Kercher while Amanda Knox and Raffaele Sollecito had absolutely nothing to do with it. Honestly, anyone who continues to cling to the prosecution's fantastical theory of prosecution at this point is just delusional.

There are two tragedies here. First, obviously, that Meredith was murdered in such a horrible and brutal way. The second tragedy, though, is that her murder has been exploited and twisted and manipulated into this ridiculous, world-wide tabloid sensation that has destroyed two innocent people's lives while allowing the actual killer to get a greatly reduced sentence. And no matter what transpires in this latest legal twist, there will be a percentage of the world's population who continue to believe that Amanda (and therefore poor Raffaele) were involved in this crime, were there, know something at least, or flat-out committed it. They will have to carry that for the rest of their lives thanks to one insane prosecutor and a country that loves a crazy, conspiracy theory.

Sunday, March 24, 2013

You say justified warrantless search, I say rape

This story about made my day. (The Jayhawks moving on to the Sweet Sixteen actually made my day, but this was close.)

I've blogged about this incident a couple of times already. Two women in Texas were subjected to an invasive cavity search on the side of the highway, in full view of passing cars and a trooper car dashcam. The trooper actually inserted her fingers into the vaginas of these two women (who had done nothing wrong) out of suspicion that they might have drugs hidden (even though there was no sign of drugs or paraphernalia anywhere in the car.) I even previously pointed out that if I had done what the officer in question had done, it would have been called rape under my state's law.

Well, in Texas they call it sexual assault, not rape, and I am fine with that because the officer who conducted those despicable searches has been charged with it!

(The male trooper who called for the female officer was charged with theft for allegedly stealing one of the women's prescription painkillers, but not for aiding and abetting the sexual assault.)

I'm sure this is a terrifying experience for the trooper who somehow thought she was just doing her job when she digitally penetrated two innocent women on the side of the road. I'm sure it's been financially devastating to lose her job. And now to face such a serious charge must be rough. Perhaps, too, there's some frustration on her part, feeling like she's being made the scapegoat for what was standard operating procedure in her office. Were I her, it would gall me that the male trooper involved wasn't charged with anything related to the actual sexual assault.

But so what. She molested these women. That's exactly how they felt because that's exactly what happened to them. She had absolutely no legal justification for her actions, no matter that office policy said otherwise. To the extent that other troopers also engaged in these awful cavity searches on the side of the road, well the answer isn't that she shouldn't be charged because none of them ever have been. The answer is that they should all be charged. Maybe it's just that she was the first trooper dumb enough to conduct such a search without first making sure the dash cam was off.

I'm glad to see this travesty being taken so seriously. Digital penetration of the female sex organ without consent is a crime. In Texas, as in Kansas and many, many other states, digital penetration is treated just the same as penile penetration. It's rape. (Texas, like some states, avoids the word rape, calling it sexual assault instead, but it all means the same thing.) To meet the statutory elements, the penetration doesn't have to have been for a sexual purpose, either, so the trooper doesn't have that as a defense. I'm sure her defense will turn on the question of whether office policy and procedure that calls for cavity searches on the roadside can protect the individual officers who actually carry out the policy. That defense didn't work in Nuremberg and it shouldn't work here. A law enforcement office can't have a policy of rape and thus shield the individual officers who actually commit the rapes. 

By the legal definition, this was rape. When a case this obvious and documented comes to light, we need to take it seriously and treat it like the crime it is. We need to make sure every law enforcement officer in the nation knows this abusive behavior won't be tolerated. If we don't, there might well be other victims.

Your monthly reminder that I hate Nancy Grace

It's no secret that I'm not a fan of Nancy Grace. You all know by now that I don't just think she's a shrill, insensitive jerk, but that she's a disgrace to the criminal justice system and a horrible person to boot. While watching her show puts me at grave risk for a stroke, I do sometimes check in on her just to see how massively she's prejudicing the nationally-followed criminal defendant du jour. But this one I just stumbled upon while I was doing my daily round at the celebrity gossip sites.

Ugh, she's so awful! I don't pretend to know all that much about the Jodi Arias case. I have not followed it the way Nancy Grace's mindless fans undoubtedly have. I definitely have not put as much time into it as Nancy herself has. I know the basic claims of each side and frankly have no opinion because I'm not on the jury and don't know enough. But I do know that Nancy Grace is once again proving that she does not deserve that name. Talk about graceless.

So she's mad that Jodi Arias has access to peanut butter in jail? And pretty edible peanut butter at that. (Let's be honest, Nancy. Even cheap peanut butter tastes pretty good. It's one of those foods that's hard to make unpleasant.) Her poor victim (she definitely killed a guy, the question is whether it was premeditated murder or self-defense) would LOVE to eat a peanut butter sandwich, says Nancy! It's a total outrage that Jodi gets to eat peanut butter! Of course, by that logic, the victim would love to be able to take oxygen  into his lungs, as well, so Nancy should be similarly outraged that the jail allows Jodi access to oxygen.

The complaints go on that Jodi is allowed to take Spanish classes, watch t.v., play cards, and, horror of horrors, go outside! As if there is a jail or prison in this country where the inmates aren't required to have access to the outdoors for at least a short period of time on a regular basis. As if having access to t.v., study materials, playing cards, or other pass times is so unusual. The very first people who would complain about inmates losing access to these things are the corrections officials themselves. Do you know what a dangerous place jail would be if all the inmates were denied t.v., cards, books, etc., and were therefore bored to tears? Having been a prosecutor and having involved herself in criminal justice for so long, I would expect Nancy to have a better understanding of the realities of jail safety. Letting inmates watch t.v. doesn't make their life in nasty jumpsuits, behind bars, with constant noise and light, with no privacy, with someone else telling you what time to get up, eat, go to sleep, etc., and with no ability to leave some cushy, awesome life that they're all thrilled to be living. For crying out loud, no matter what little activities you let them engage in so they won't get into fights and attack guards, they're still trapped behind bars.

But my favorite complaint is that the people at the jail are treating Jodi Arias like a celebrity. Hmm. Now why might that be, Nancy? Let's just think about that for a moment. It couldn't possibly be because you and your cohorts at HLN are talking about her trial every damn day, could it? Surely couldn't be because you are coming to tour the jail where she's housed and talking to inmates about her. If you don't want criminal defendants to be turned into celebrities, then stop turning them into celebrities! There are hundreds of criminal trials that will be starting or continuing tomorrow. But you and those like you have chosen to make an example of this one, to focus on it relentlessly. Just like Casey Anthony before, Drew Peterson before that. You single out these particular defendants, analyze their cases endlessly, and then complain that they're getting too much attention. Well, this one's on you because I wouldn't have a clue who Jodi Arias is if you hadn't brought her up.

Thursday, March 21, 2013

Lifetime and its cheesy not-so-true-crime movies

TV movies on regular broadcast channels are mercifully a thing of the past, for the most part. Instead, the made-for-tv movies now show up on the cable channels, like ABC Family (churned out some cheap rom coms) or Hallmark (home of the feel-good cheese-fest). Or, of course, Lifetime, home of the woman-in-peril, family-in-crisis, and true-crime movies we all love.

I have complained before about the reckless speculation that goes into Lifetime true-crime movies. The Amanda Knox movie was shameful in its twisted presentation of the facts. Anyone whose only "knowledge" of that case came from the movie would obviously think she was guilty, or at least very suspect. Those of us who knew the facts, though, could see all the flaws in that movie. It was bad. Then there was the Lifetime movie about Drew Peterson, which I watched, just so I could criticize. The movie didn't let me down because it showed lots of scenes of Drew and his missing-presumed-dead fourth wife. Including a scene on the morning she disappeared, a scene they couldn't possibly have any reference source for what with Stacy having not communicated with anyone.

Now maybe the producers of these movies will tell you it's clear which parts of the movie must be speculation because they depict scenes that couldn't possibly be known by anyone who's around to talk. But they also want people to believe that their true-crime movies are sourced and as factual and accurate as possible.  They can't really have it both ways, though. Either your movie is based in fact or it's fictionalized. Existing in this netherworld between true and speculative is a big problem.

You know I love the First Amendment as much as anyone and I hate to see free speech infringed in any way. But I also really hate lies and reckless disregard for the truth, especially if it prejudices a criminal defendant. So I had some mixed emotions about the New York judge who issued an injunction against a Lifetime movie that was set to premiere this weekend. The defendant, Christopher Porco, challenged the movie as infringing on a New York law that prohibits the use of a person's "name, portrait, picture or voice is used … for advertising purposes or for the purposes of trade without the written consent first obtained."

I'm pretty sympathetic to Porco's claim. I've always thought there was something pretty unseemly about cheap movie productions and pot-boiler books trying to turn a profit off of someone else's tragedy. It appears that Mr. Porco has already lost his direct appeal, so he has less of an argument about potential prejudice to his criminal case than some other movie subjects have had. Sometimes, the tv movie actually pre-dates the trial, as I believe was the case for Drew Peterson. That is very troubling to me, the idea that movie producers could set the narrative that a trial defense team has to fight against.

But I also don't want media outlets to be prohibited from writing or otherwise publicizing criminal cases or other topics in the public arena. I just want there to be some accountability for media outlets who play fast and loose with the facts. People really shouldn't be allowed to make up their own facts surrounding a criminal case just because it makes the movie narrative better.

In the end, it appears that Lifetime will get to air the movie on Saturday as planned. Porco might have won that brief injunction, but Lifetime won the next round. The movie will air. It undoubtedly has scenes that can't possibly be sourced. It undoubtedly leaves out facts that would alter a viewer's perception of aspects of the case. Many viewers will undoubtedly come away thinking they know everything they need to know about Christopher Porco's guilt. (I know nothing of the facts of the case and have no judgments about it at all.) Lifetime will undoubtedly soon be hard at work at its next irresponsible true-crime movie. And I will keep thinking there's something not quite right about the whole process.

Wednesday, March 20, 2013

You remember in Return of the Jedi, when Luke defeats the Rancor, smashing the gate down on him to kill him? Jabba is outraged at Luke, so the guards all rush in to get him. But one guard has eyes only for the Rancor. He pushes past Luke and the other guards, crying, desperate to get to his beloved beast.

In his review, Roger Ebert singled out that moment as one of his favorites. He wrote that everybody has somebody. Even the nasty, human-eating Rancor.

I know that most people see my clients as human Rancors. Maybe not-quite-human Rancors. Who deserve to be caged and for whom nobody should waste any tears.

But you and they should all know that my clients all have that one guard who will cry for them. Because Roger Ebert was right. Everybody really should have somebody.

Tuesday, March 19, 2013

Could Colorado be #7?

Just last week, Maryland's legislature voted to repeal the death penalty, making it the sixth state in the last few years to do so. Today, I have spent the past 8 hours listening to testimony from the Colorado House Judiciary Committee on a repeal bill in that state. The last time Colorado considered repeal, just a few years ago, it failed by a single vote. Those in the know think this could have a shot this year.

I think it demonstrates the true depth of my junkie-ness that I have been listening to this all day, except for the hour or so I was driving home and stopping at the grocery store. And don't forget, this isn't even my state. Proponents of repeal testified first and spoke for hours. Their speakers ranged from clergy members to exonerated former death row inmates to corrections officials to defense attorneys to prosecutors to victims and their families. They spoke of the cost, they spoke of the emotional toll (a point eloquently made by the corrections official, who lamented that it's quite a thing to ask of prison guards that they put people to death), they spoke of the arbitrariness, the racial disparities.

On a depressing day (why is it snowing? during March Madness??), these speakers made me feel better about the world by standing up against state-sponsored murder. I especially appreciated the comments by victims who begged not to be put through the emotional roller coaster of a death penalty trial because I've long thought it wasn't fair to victims' families, but that isn't always taken well when uttered by a defense attorney. I even wanted to drive to Colorado and kiss one of those DAs who spoke against the death penalty.

And for the past three hours or so, we've been into the opponents, mostly prosecutors. And now I'm mad. (Other than feeling the first thrill of March Madness as Robert Morris beat Kentucky. Yay March upsets! As long as my Jayhawks aren't the upset ones.) The first prosecutor decried those proponents who had "casually" complained about the racism that plays into the death penalty. Everyone on death row in Colorado is black, so I'm not sure his righteous indignation on that point was justified. (Nor did a couple of the committee members.)

One prosecutor insisted we would never get a defendant to plead to murder again if the death penalty were repealed. (One wonders, then, how the 18 states without a death penalty manage to get guilty pleas to murder charges...)

A prosecutor insisted that these super dangerous criminals who we won't be able to kill will get out into general population because we can't, we CAN'T, keep them in solitary confinement forever. (One wonders, then, who all those specially-designed supermax prisons around the nation, including Colorado, house...)

Prosecutors are mindlessly repeating the facts of their most horrific cases, as if they didn't hear any of the earlier testimony by families who were so embittered upon being told that their loved ones' murders weren't that heinous. They argue against the death penalty because they don't think the idea of deciding who the worst of the worst are is fair to those people whose killers are deemed to be not that bad. But when the law and reason isn't on your side, you always argue the facts, so that seems to be what a few of these prosecutors are doing.

And as I'm typing, this prosecutor just said, "The Ring decision was a real technicality." Umm, the Ring case, Ring v. Arizona, was based on the Sixth Amendment right to a jury trial. Is the Sixth Amendment right to a jury trial a technicality?

These prosecutors are insisting that they have the most narrow, stringent death penalty statute anywhere in the nation, which is a laughably false statement. Almost every single intentional murder in Colorado is death-eligible. Living in a state with a truly narrow statute, I can assure these prosecutors that their statute would encompass every single first-degree murder case I've ever worked on, the vast majority of which could not be capital in Kansas.

They're insisting that abolitionists grossly overstate the number of exonerations. They insist that the last appellate court to consider the Troy Davis case reaffirmed his clear guilt, rather than finding he couldn't prove innocence. They insist that we get plenty of appeals without acknowledging that they fight us every step of the way. Then they insist that the fact that some guys get out after 15-20 years of those appeals (that they've fought every step of the way) shows that our system works! They don't dare to mention Cameron Todd Willingham or Carlos DeLuna. One of them even cited as compelling authority the concurrence Justice Scalia wrote in Kansas v. Marsh wherein he went on a wholly irrelevant tangent lambasting the abolitionists who cry  out about the risks of executing the innocents. Never mind that the math in Scalia's concurrence has been widely lambasted by anyone who can do math.

The opponents of repeal have to resort to lies, or at least gross exaggerations, to make arguments. While I was feeling kindly toward those two prosecutors who testified in favor of repeal, this last string of guys has restored order.

I hope that this really does have a chance in Colorado this year. The mere fact that they've accepted this much testimony makes me think it does. Colorado should be better than this, better than conflating vengeance and justice. The state should use its resources better. The state should stop tinkering with the machinery of death. And I should really stop listening to these opponents before I have an aneurysm.

Sunday, March 17, 2013

Debra Milke and the death penalty

On Friday, the Maryland house voted to repeal the state's death penalty, which means it will become law as it had already passed the state Senate and the Governor proposed the bill in the first place. In comments online, those who support the premeditated killing of people by the state bemoaned the fact that the death penalty has become too unwieldy, too expensive. There were the predictable calls for swift execution of those who were surely guilty. Complaints about the outrageous number of appeals death penalty defendants are allowed. And, of course, rants about the evil defense attorneys who keep these cases going so they can rake in money hand over fist with each new filing.

News also broke late last week about an Arizona woman who has been on death row for 22 years having her conviction and sentence overturned. The action came from a federal appellate court, so it would have been the 3rd round of litigation at least. Debra Milke was convicted in the 1989 high-profile killing of her 4 year-old son. Her conviction was based solely on the testimony of one detective who swore she confessed. Not that he'd recorded that confession or allowed any other witness to hear the confession. He hadn't even kept any notes from the confession. So it really came down to him coming into court and swearing that she'd confessed. That was news to her, though. She swore she was innocent and always said so and that she'd asked the detective for an attorney. She maintained the detective's version of their conversation was completely made-up.

Since the case against her so entirely rested on the credibility of that detective, her defense counsel had subpoenaed his personnel files. The prosecution fought that subpoena. They never turned over anything about the detective's history. To this day, even after courts have ordered them to turn stuff over, they have still not handed over everything. But what they have turned over was a gold mine for the defense. No wonder they didn't want Milke's trial attorneys to have this stuff so they could cross-examine the detective. They would have discredited him thoroughly in 20 minutes. The personnel files revealed case after case in which a court had found the detective had lied under oath and/or had violated a defendant's Miranda rights. Indeed, it seems the detective learned to stop telling courts when a defendant had asked for a lawyer as it only got the confessions he extracted thrown out. It seems hard to believe that anyone who had to convict a woman and sentence her to death on nothing but the word of this detective would convict if they had any inkling of his long history of misconduct.

What's really amazing in Milke's story is that once the defense finally, after years and years of trying, got their hands on the detective's files and were able to present them to a court, they still didn't prevail at first. Remarkably, a district court judge ruled all these files didn't raise any serious concern about Milke's conviction and sentence. The federal appellate court did this judge the honor of presuming the judge simply didn't read the files rather than presuming the judge read them and didn't care. And now despite their conviction resting solely on the testimony of perhaps the dirtiest cop in all of Arizona, the prosecutors still insist they're going to appeal this decision. And we still don't know what else the prosecutors are hiding about the cop's history as there are still gaps in his personnel files.

This is why I get so furious when people insist we should cut off the appeals for death penalty defendants. And it's why I got a little crazy when people rail against obstructionist defense attorneys who drag out the appeals process. Who dragged out the Milke case? Her defense attorneys who sought this incredibly relevant, probative material from day one? Or the prosecution who fought every step of the way and still haven't fully complied with court orders? Whose fault is it that she didn't get relief until 22 years later? The defense attorneys who presented compelling evidence of the detective's constant misconduct? Or the prosecutors and judges who refused to acknowledge that misconduct casts a serious doubt on Milke's conviction?

The vast, vast majority of the exoneration cases weren't found out to involve wrongful convictions until a decade or two of litigation and appeals. If we really only gave people one appeal and then a bullet, most of those innocent individuals would have been killed. Most people in Arizona were pretty darn convinced that Debra Milke was unquestionably guilty, so that standard line of fast-track executions for the "obviously guilty" would have worked against her and she'd have been killed with no one ever realizing how shady her conviction was.

So it seems only fair that the price the rabid, bloodthirsty pro-death penalty folks must pay is that we get to have round after round of appeals. Or you could demand better practices of your prosecutors. Demand that they not withhold evidence. Demand that they not fight for years to avoid testing DNA from old evidence. You really don't get to have it both ways, though. You don't get to have the permanent solution punishment and  truncated appeals. And you don't get to blame the defense bar for dragging things out. Believe me, the Debra Milkes of the country would give anything not to have to fight for 22 years to get their convictions overturned. But if we only gave them one appeal, we'd have an awful lot of innocent blood on our hands. 

Saturday, March 16, 2013

The upside of waking up on Saturday morning with beginnings of a hideous cold that only gets worse as the day progresses is getting to watch a) lots of basketball and b) a marathon of those true crime shows when the basketball gets uninteresting. So after watching my beloved Jayhawks wrap up yet another conference tournament title and assure themselves an invite to the Big Dance (I was worried...), I flipped to TLC.

The story I watched was a case from Florida involving a distraught husband whose 33 year-old and seemingly healthy wife dropped dead one night. But police and prosecutors decided it was murder and so charged the husband. The oh-so-compelling evidence against him was stuff like "he was calm one minute and hysterical the next." He said he found her slumped on the toilet. No, he said he found her on the floor. No, she might have been over the magazine rack by the toilet. Then there was the Miami beat cop who swore that the hood of the car was warm to the touch... There was also some fun stuff like some of the first responders (who took 23 minutes to get to the house, btw) swore the husband was fully dressed, including shoes, at 4 am when he said he'd been in bed.

Ok, so maybe the dressed when he supposedly had been in bed thing sounds bad. Except the very first responder says the husband was in boxers and a t-shirt. And here's the big one: the husband has an identical twin brother, who the husband called while he was waiting for an ambulance. So, yeah, all those first responders who saw a guy fully dressed were seeing the brother.

As for the other stuff, it terrifies me when police and prosecutors decide someone has committed murder before there's even any evidence that there is a murder based on the person they suspect not behaving the way they think he or she should. The calm/hysterical thing, for example. Well, for crying out loud. Do these police and prosecutors know human beings at all? What 35 year-old man with two small children whose 33 year-old perfectly healthy wife just apparently dropped dead with no warning wouldn't ricochet wildly between calm and hysterical? That's downright textbook human reaction. Moments of odd calm because this is too bizarre to be real and moments of the reality breaking through. Sheesh, if you're going to judge people as murderers based on their behavior, at least understand human behavior!

The vague inconsistencies (if they can even be called that) about whether she was on the floor or slumped over the toilet (wouldn't someone who is slumped over the toilet also quite possibly be on the floor?), well, a guy who is ricocheting wildly between hysterical and calm in the immediate aftermath of his seemingly-healthy wife's sudden death most likely wouldn't say the same thing every time. I thought they taught that in detective school, that minor inconsistencies are the hallmark of a truthful statement because someone who is innocent isn't trying to memorize a story. Whereas if your details remain too consistent, it's because you've rehearsed a particular story. Except when it's the exact opposite because the cops have already decided you committed murder, so then it's highly suspicious that you can't keep your details straight.

The end to this Dateline was happy, thankfully. After 5 years of suspicion and accusations (with all the accompanying cost), the poor widower was found not guilty by a jury. But not before the prosecutors in their closing argument accused his mother-in-law of lying on the stand (she was called as a defense witness and the prosecution alleged she was only sticking by the murdering sob so she could see her grandchildren). I'm thinking calling the alleged victim's mother a liar doesn't endear a prosecutor to a jury. The jury foreman spoke to Dateline for the rest of the jury and made it very clear that this jury didn't just find the man not guilty, they found him 100% completely innocent. They heard his frantic 911 call and heard a man who was desperate and had no idea what was happening. The jury was angry that the murder charge had ever been filed. As am I.

(I have to say, I was mildly surprised by the verdict. My mom and I always bemoan these shows that involve deaths that aren't clearly murders to begin with because it seems the juries always go with the prosecution and convict on the flimsiest supposition.)

The prosecutor was unapologetic, of course. After all, he couldn't keep it straight whether he found his wife dying on the floor or slumped over the toilet! He was calm one minute and crazed the next! The hood of his car in an un-air-conditioned garage in Miami was warm!

Oy. If I had my way, this kind of prosecution, based on pop (or should I call it cop) psychology and hunches would never happen. I would institute a rule that says if your case relies on "he didn't act the way I think he should have," you can't pursue that charge in court unless you find evidence. This deciding that a guy seems suspicious and so I'm going to suspect him and build a case for murder thing just isn't cutting it. Don't build a case against a person. Don't build a murder case. Just build the case as it exists. Leave the hunches and the armchair psychology to the people who watch Criminal Minds. Or at the very least, develop some sympathy and understanding for the fact that grief is an incredibly complex thing and people probably shouldn't be judged for how they deal with it.

But I don't get my way, so there will continue to be nonsense cases like this. Here's hoping there will likewise be more juries like this one.

Tuesday, March 12, 2013

I'm not that kind of lawyer

People always have the idea that if you're a lawyer, you must know the law. All of it. That you can answer questions on all kinds of legal topics, no matter how far removed from your own area of practice. So friends ask me to comment on any news story that has a legal angle to it. Family members bring me their tickets, their fights with utility charges or credit card companies. Child custody disputes, divorces, estate issues. Sometimes I want to respond to these questions with a reminder that I'm just a criminal lawyer.

They're not exactly wrong to ask me. I did go to law school, after all. I do know a little about administrative law, family law. I know a thing or two about bioethics and the law. I did pretty well at Contracts, Property, and Trusts and Estates (actually, 3 of my 4  highest grades in law school, oddly. Evidence was #4, which makes more sense). I took classes in all of these things and I've even retained some of it.

And if it's a constitutional law question, I really can answer that. But for the most part, I can't give the kind of answer I feel like people deserve. I can state some general principles and probably refer the asker to an attorney in that field, but I can't write a two page essay. It's a tad frustrating to feel like I'm letting people down by not having all the legal answers.

But on the other hand, I would probably hate it more if any of my family or friends came to me with a legal situation I was equipped to handle. I'd just as soon not have to help any of them face a major felony charge.

Sure, you're probably innocent, but a jury once said you're guilty, so we don't care.

It never ceases to amaze me how much effort prosecutors will put into convictions that should be overturned and how easily some courts will turn a blind eye to obviously flawed convictions. Sometimes they do the right thing, lose those blinders. But it seems like the cases wherein both the prosecutors and judges just don't see the likely innocence of the defendant are far more common.

Take this story from Texas. In 1988, Ben Spencer was convicted of a murder he almost certainly didn't commit, a fact a district court judge acknowledged at a hearing in 2008. The eyewitnesses couldn't have seen what they said, perhaps even believed, they saw. The jailhouse snitch recanted. The defendant had a corroborated alibi. The actual perpetrator of the crimes has been identified. Hearing all of that evidence in 2008, a district court judge declared Spencer innocent and granted him a new trial.

But the Court of Criminal Appeals has to review findings in a situation like that hearing. Shouldn't be a problem, though, as appellate courts are highly differential to the fact findings of trial courts. The trial court judge gets to see the witnesses, hear all of the evidence, and so is in a much better position to rule on credibility. In an issue that comes down to disagreeing with the trial court's fact-findings, the trial court's ruling is almost always affirmed. Almost always. After dithering for 3 years, the Court of Criminal Appeals rejected the trial court's findings. (Funny how standards of review never seem to count as much when they fall on the side of the defendant.)

Even more upsetting is the fact that the case is out of Dallas County, an office headed by one of the most respected District Attorneys around. At least respected by defense attorneys because he has lead one of the broadest Conviction Integrity Units as exists in any DA of County Attorney office in the nation. The Dallas County DA's office has been involved in the release of more DNA exonerees than any other prosecution office. They typically haven't fought exonerations. So it's puzzling that they won't pursue this case, that they seem unconcerned about Ben Spencer's wrongful incarceration. Or the fact that the likely killer has escaped justice (though he is in prison for life on another case).

I don't understand it. I don't understand why the appellate court would step in and preserve a conviction after a trial court has expressed such a lack of confidence in the guilty verdict. (I think declaring the guy innocent can be safely considered a lack of confidence in the guilty verdict.)  I don't understand why the prosecutors wouldn't just concede the fact that the conviction is problematic, at least. I really don't understand why they don't care if they have the wrong guy because that means they don't care if they don't have the right guy. You don't have to be a bleeding heart liberal defense attorney to be bothered by the idea that the DA's office doesn't care about getting the right guy.

This is the kind of stuff that drives me to drink. Makes me wonder how I can keep being a part of a system that tolerates this kind of injustice. It's what makes me feel so disheartened, some days I don't know why I keep bothering. But I can only imagine how much more disheartening it is for the Mr. Spencers of the world. Men whose lives have been ruined beyond repair. I only wish the prosecutors and judges responsible for keeping men like Mr. Spencer in prison felt as disheartened as I did. But if they did, they would do something about it already. So they must not. Not that it would do Ben Spencer any good if the people responsible for his continued incarceration had difficulty sleeping at night. Still wouldn't get him out on the streets, the free man he deserves to be.

Monday, March 4, 2013

No, IAC is not sound trial strategy

People always have this weird, stupid, ridiculous idea that defense attorneys and/or their clients intentionally sabotage cases so they can someday make a claim of ineffective assistance of counsel (IAC). That attorney is trying to suck, they think. That defendant is trying to proceed to trial with an unprepared attorney so he can win on appeal! 'Cause that makes soooo much sense.

Honestly, folks, no defense attorney goes into a trial intending to screw it up so badly that the defendant will have a sure-fire claim for a new trial after he's convicted. I mean, really, who even thinks that would be a logical course of action at all? Why would you try to get your client convicted so you could get him a new trial instead of just trying to win the trial? I don't understand how anyone can think this makes sense enough to actually believe a defense attorney is doing it.

If you read as many online crime articles and their comment sections as I do, you'll see more than a few people insist that the defense attorney is setting up an appeal on IAC. The stupidity makes me crazy. Especially in places like Kansas where an IAC claim can't even be brought on direct appeal, so a Kansas defendant would have to sit in prison for the duration of a direct appeal before he could even bring this brilliant IAC plan to fruition. And even then, even if the defendant won on the IAC claim, he'd still have to go through appeals on that issue and even then wouldn't be released, but would just get a new trial. Yep, that sure would be some swell strategery.

Defense attorneys don't intentionally mess up so that years from now the defendant can get relief while the defense attorney is found by a judge (or judges) to have been deficient. If any defense attorney actually thought that was a good idea, that defense attorney should have his/her head examined.
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