tag:blogger.com,1999:blog-22488811497499259342024-03-05T05:03:02.728-08:00Preaching to the choirMy opinions are my own, but the world would be a better place if everybody agreed with me.Shttp://www.blogger.com/profile/12429147325673256508noreply@blogger.comBlogger1168125tag:blogger.com,1999:blog-2248881149749925934.post-69195253827946800312018-04-02T21:38:00.000-07:002018-04-02T21:38:36.658-07:00This won't help make it stopMany factors contribute to our police brutality problem. Systemic racism, widespread gun ownership, fear. But one factor that doesn't get talked about enough is the way our courts and prosecutors are overly deferential to police. All a police officer has to say is, "I had a fear for my safety."<br />
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Those magic words almost always work to get a prosecutor to say the case is unchargeable, as in the case of <a href="https://www.nytimes.com/2018/03/30/us/baton-rouge-alton-sterling.html">Alton Sterling</a>. No charges were filed even as video showed the police officer threatening to kill the man, which would seem to show something criminal attorneys call premeditation and intent. Or to get at least one juror to refuse to convict, as in the death of <a href="https://www.cnn.com/2016/12/05/us/michael-slager-murder-trial-walter-scott-mistrial/index.html">Walter Scott</a>. A juror steadfastly refused to vote to convict that police officer even as video showed the police officer shooting a man in the back as he ran away.<br />
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And they work to get a majority of the United States Supreme Court to confer qualified immunity on a police officer, as in today's case <i><a href="https://www.supremecourt.gov/opinions/17pdf/17-467_bqm1.pdf">Kisela v. Hughes</a>. </i>Police responded to a call of a woman acting erratically, hacking at a tree with a knife. The majority calls it a large knife while Justice Sotomayor, in dissent, calls it a kitchen knife. I picture one of my standard chef's knives I use almost daily. Upon arrival, police saw a woman holding a knife facing another woman, about 6 feet apart. They saw no threatening movements, no brandishing of the knife, heard no threatening words. They asked the woman to put the knife down, without identifying themselves as officers, but it didn't appear she was even aware of their presence. Two of the responding officers saw no immediate threat. But the third opened fire. Through a chain-link fence.<br />
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The victim, who fortunately did not suffer life-threatening injuries despite being shot 4 times, sued the police officer, alleging a violation of her Fourth Amendment rights. The district court granted summary judgment to the officer and dismissed the case. Now, that sentence means a lot to me, but I went to law school. Summary judgment is when the district court rules for one party in a civil suit (usually the defendant) without trial. The standard is supposed to be that the court views all facts in the light most beneficial to the other party, or that the facts are not in dispute, and viewing the facts that way, there is still no way that party can prevail. It is supposed to be a very stringent standard, aimed at claims that fail legally, not claims that fail if a finder of fact believes one party's version of the facts over another's.<br />
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The Ninth Circuit Court of Appeals looked at the facts of this case and found this wasn't a proper vehicle for summary judgment. That court reversed the district court and remanded the case for a trial, where a jury would decide whether the officer's actions had been reasonable. It was hardly a radical decision from that court to say, you know, if she was just standing there holding a common kitchen tool at her side, not screaming or seeming agitated, not threatening anyone, the woman she was talking to didn't feel threatened, she may not even have been aware the officers were there, and the other two officers didn't see any reason to shoot, maybe a jury should get to decide whether the officer's actions were reasonable.<br />
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But the Supreme Court thought that was unreasonable. The high court reversed the Ninth Circuit's reversal of the district court's summary judgment. So the victim doesn't get a trial. A jury doesn't get to decide if the officer's actions were within the boundaries of what we want our police officers to do.<br />
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And so police officers who shoot people will continue to face very little scrutiny. It's not even that they don't face consequences; they don't face scrutiny.<br />
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It doesn't have to be this way. There is nothing in the text of the Fourth Amendment that says police officers can't be sued in civil court for shooting people. But 7 members of the nation's top court choose to see it this way, so here we are for now. We have a lot of work to do.Shttp://www.blogger.com/profile/12429147325673256508noreply@blogger.com8tag:blogger.com,1999:blog-2248881149749925934.post-19258090298584022018-03-27T21:05:00.002-07:002018-03-27T21:05:16.842-07:00This has to stopIt just keeps happening. Faster than we can learn the names.<br />
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<a href="https://www.cnn.com/2018/03/27/us/sacramento-stephon-clark-shooting/index.html">Stephon Clark</a>. Murdered in his own back yard in Sacramento. Holding a super threatening cell phone.<br />
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<a href="https://www.cnn.com/2018/03/25/us/houston-police-shooting-danny-ray-thomas/index.html">Danny Ray Thomas</a>. Gunned down in the middle of a Houston street in broad daylight while he was clearly in a state of great emotional distress and in need of help and understanding.<br />
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And so many others, some whose names we've already let slip our minds despite our best efforts to remember. We try to remember, but there are just so damn many of them. Unfortunately, in so many of these awful cases of police slaughtering black men in our streets, the name of the victim has been surpassed by so many new names, we barely notice when the authorities quietly announce that there will be no charges or other repercussions for the murderers. I mean officers of the law.<br />
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As we learned today, the officers who murdered <a href="https://www.cnn.com/2018/03/27/us/alton-sterling-investigation/index.html">Alton Sterling</a> will face no charges. Because of course they won't. Because we long ago decided that officers can act as judge, jury, and executioner based on their own fear, as long as its reasonable. But we long ago decided to accept it when they say they acted based on their own fear and that fear was reasonable no matter what. And, of course, we long, long, long ago decided that it's inherently reasonable to fear black men.<br />
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This has to stop. It has to stop. We have to make it stop. And we can. We the people actually have the power to make it stop. That's the thing that so many people don't seem to get. The police and prosecutors don't get to dictate to us the rules by which they do this job we pay them for. We can tell them this isn't acceptable. We have that power. It's way too many forgotten names past time for us to use that power.<br />
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I don't have any words of wisdom or ideas for how to make this stop. I'm too tired to fight right now. I'm just sick to death of trying to remember these names. There need to be no more names for me to try to remember.<br />
<br />Shttp://www.blogger.com/profile/12429147325673256508noreply@blogger.com10tag:blogger.com,1999:blog-2248881149749925934.post-16662329293938844592017-08-29T23:01:00.000-07:002017-08-29T23:01:53.286-07:00In which I defend an alleged wife-killer named PetersonI'm just going to throw this out there, and it's not going to be popular. I don't think Scott Peterson killed Laci. Honestly, I never have.<br />
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Here's the thing. The state's theory was he killed her sometime overnight on the night of December 23. Never mind that multiple witnesses are sure they saw her walking her dog the morning of the 24th. Never mind that the house showed no signs of struggle or clean-up. Never mind that there is computer evidence from the morning of the 24th that shows she was web browsing. Never mind the burglary that happened right across the street the very morning she went missing. And why exactly was their dog found out wandering around alone, leash still on, if it hadn't been out with Laci that morning when Laci was taken? So he killed her overnight, but then waits until 1 pm on the 24th, broad daylight, to take her body into a standard aluminum boat, no hidden compartments or anything, everything just out in the open to be seen by any passers-by, to a busy marina? That makes no sense.<br />
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This isn't a boat with a cabin or hidden compartment. This boat doesn't have hidden smuggling bays a la the Millenium Falcon. This is the kind of boat that holds no secrets; anything that is in the boat is visible to anyone who walks past. This is NOT the kind of boat you use at 1 pm to dispose of a body. If you have accidentally or otherwise, killed your pregnant wife the night before, you do not go to the Berkeley Marina in broad daylight the next afternoon in this particular boat to dispose of her body. You either do that body disposal in the cover of darkness, and preferably not at a location where you have to get a receipt to show you were there (yeah, he had a receipt), or you go to the middle of nowhere. You don't casually drive the body to this populated marina in the middle of the day, knowing that anyone who happens by will be able to see what's in your boat. You don't just hope that no one will notice the body-shaped, tarp-covered bundle in your boat.<br />
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You know who would put Laci's body in that body of water? The actual killer who quickly realized that the entire world had its eyes on Scott Peterson and knew that he'd gone fishing the day his wife had disappeared. Her body wasn't discovered for months, after all. It doesn't take a genius to realize if you actually knew where Laci Peterson's body was, it would be in your best interests to move it so that if were found, it would fit perfectly with the set public theory that her husband had killed her. Why let it be found somewhere else when you can use confirmation bias to your benefit?<br />
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The world, thanks to folks like Nancy Grace, had decided Scott Peterson was a bad dude long, long before Laci's body was found. People just felt in their bones that he'd killed her. So he could play with his new girlfriend, so he could be free, etc., etc. This feeling was so strong, so overwhelming, that it made people forget to care that there was never any actual physical evidence against him. Or that there were eyewitness accounts that absolutely destroyed the prosecution's theory about the time of death which also basically made it impossible that Scott was responsible. He was believed to be guilty from the very beginning, for being a cheating bastard who didn't cry. But the problem is his cheating bastardness isn't actually evidence. The evidence, the actual evidence related solely to Laci's disappearance and death, doesn't quite point the way the public's gut believed it would. So people just ignored the evidence or found convoluted reasons for dismissing it. Facts are stubborn, though, and not that easily avoided.<br />
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I know I've been quiet for a long time and it may seem strange that this is the thing that gets me to post again. But, A&E is running a limited series about this case and I feel like finally people might be receptive to hearing the doubts I have always had. A man was sentenced to death because the public hated him, even though the prosecution's theory of the case makes no sense and requires us to ignore an awful lot of evidence and logic. I'm really not convinced Scott Peterson killed Laci and I don't think you should be, either. Shttp://www.blogger.com/profile/12429147325673256508noreply@blogger.com9tag:blogger.com,1999:blog-2248881149749925934.post-17454667101849981612015-08-20T21:41:00.003-07:002015-08-20T21:41:58.848-07:00In which I am feeling utterly and totally defeated because of a man I will never meetIt is because of <a href="http://www.theatlantic.com/national/archive/2015/08/the-retrial-of-a-texas-man-imprisoned-despite-his-overturned-conviction/401876/">cases like this</a> that so many criminal defense attorneys burn out, run for the hills or the beaches or the forest. It is so hard to be part of a system that allows this to happen, that considers this an acceptable result.<br />
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Jerry Hartfield has been in prison for over 35 years. Even though since 1980, he has not had a conviction. He hasn't been sitting in a county jail waiting for trial with the attorneys working on things that lead to the trial being delayed. He's been in the state prison system, being treated like he was convicted of rape and murder. For decades.<br />
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His own lawyer didn't seem to understand that having his conviction overturned meant the state didn't get to continue to hold Hartfield. It was that very lawyer who worked to get the governor to commute Hartfield's non-existent death sentence to life. And then that was it. Hartfield sat in prison. He sat and sat and sat. With no conviction, no sentence, no authority to hold him at all.<br />
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All until finally some other inmate looked through his paperwork and discovered the blatantly obvious error. So Hartfield began raising the very logical and thoroughly undebatable argument that his right to a speedy trial had been denied.<br />
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That's a constitutional right, you know. It's one that matters. We don't allow states to hold on to defendants, imprison them indefinitely without requiring those states to present evidence in court, to prove their cases. Why we don't allow defendants to be held indefinitely without a conviction shouldn't require explanation. Evidence disappears, memories fade, witnesses die. It becomes more and more difficult for defendants to counter claims against them the longer the gap between the alleged crime and the trial.<br />
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As <a href="http://rantsofapublicdefender.blogspot.com/2013/01/know-what-constitutional-speedy-trial.html">I wrote before</a>, that Jerry Hartfield's constitutional right to a speedy trial has been violated is not something any rational person can deny. But, sadly, as <a href="http://rantsofapublicdefender.blogspot.com/2014/04/apparently-there-is-one-district-court.html">I also wrote before</a>, the person charged with deciding that issue was woefully irrational and refused to release Hartfield. Even in part blamed him for his plight, for the prosecution's utter and total failure to do anything after his original convictions were reversed, for the state's prison system's utter and total failure to release him.<br />
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And now a jury has reconvicted him of that 1976 crime. 125 people on the state's witness list are now dead. The murder weapon is missing. Other pieces of physical evidence are long gone. But, gee, his ability to defend against the state's accusations couldn't have been too prejudiced because a jury found him guilty beyond a reasonable doubt. So, I guess we're all good now. Those 30+ years of the state of Texas ignoring Jerry Hartfield is just wiped off the slate.<br />
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I am so disheartened by this result, I have no more words. <br />
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In all honesty, with no hyperbole, I have to say I do not know how to continue working in a system that considers this outcome justice.Shttp://www.blogger.com/profile/12429147325673256508noreply@blogger.com11tag:blogger.com,1999:blog-2248881149749925934.post-14065176587638266162015-07-27T22:41:00.001-07:002015-07-27T22:41:39.895-07:00In which Donald Trump's lawyer doesn't know the lawWe already knew that Donald Trump is not in any way, shape, or form qualified to be President of the United States. Reality tv show host, he can handle. But leader of the free world is way, way above his skill level. While many of us might think that Putin is a loser and Kim Jong Un is a dummy, diplomacy requires not saying those things out loud. The Donald doesn't know how to do anything in any other way than as loudly as possible.<br />
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But today we further learned that Donald Trump's lawyer is, well, I guess I'm gonna do it. In terms The Donald himself would approve, Donald Trump's lawyer is a loser and a dummy.<br />
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Many decades ago, The Donald's first wife, Ivana, made an accusation about a sexual encounter with her then-husband. To all English speakers, the description she gave sure sounded like a rape. A she said no, he did it anyway, there was force involved rape.<br />
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This allegation has been known for decades, was in fact covered in a book published in 1993. But The Donald is running for president now, so it came back to light today. The Donald's attorney responded to the questions with an epically incorrect legal answer. According to The Donald's attorney, "And, of course, understand that by the very definition, you can’t rape your spouse...You cannot rape your spouse. And there’s very clear case law.”<br />
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I'll give you a minute to facepalm. Let me know when you're ready to resume reading.<br />
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You're ready now? No, yeah, he really said that. Need a little more facepalm time? I get it.<br />
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Ok. Let's just be clear about one thing. In every state in this country, having sex with a person who has said no, who has not consented, is rape. Period. End of story. Ring, vows, certificates, none of it matters. No means no regardless of marital status and no state in this country has said otherwise since 1993.<br />
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It's true that (shamefully), there used to be laws in these United States that said that it was a defense to a rape charge that the defendant is married to the victim. These laws stemmed from the gross, patriarchal, despicable idea that sex was a marital right due to men that women couldn't deny them. Fortunately, our society eventually said that was a big load of hooey and all of those laws have been changed. All of them, in all 50 states. There are still some states that distinguish situations of intoxication or other incapacitation, but let's not make ourselves angry dwelling on that stuff right now. Instead, let's focus on the fact that any time a conscious person says no or otherwise does not consent to sex but is made to engage in sex against her (or his) will, it is rape under the law. And no state will claim the defendant has a defense by virtue of being married to the victim. The last such law was repealed in 1993. Phew.<br />
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The Donald's lawyer doesn't know this. He doesn't seem to understand any of the law as it relates to rape and consent and marriage. Now, the lawyer might now claim he was referring to the law at the time of this alleged incident, which I understand to be around 1989. But sadly for the lawyer, the law in New York (which I believe would have been the relevant jurisdiction) stopped recognizing marriage as a defense to rape in 1984. So that doesn't even save this guy.<br />
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This lawyer's answer today was that you can't rape your wife. That hasn't been the law anywhere for over 20 years and in New York for over 30 years. So, yeah, this lawyer is a dummy who gives horrible legal advice. Which kinda makes him a loser. It certainly makes him someone none of us should feel comfortable being so close to a top-of-the-polls presidential candidate.<br />
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So we actually did learn some good stuff today. We learned that The Donald's lawyer badly needs to attend some Continuing Legal Education courses. We learned that The Donald doesn't surround himself with the best and the brightest as his chief lawyer is at least 30 years out of date on some key points of law. We didn't really learn that The Donald is a megalomaniac who thinks he can do what he wants with people he controls (like his wives) because this allegation has been public for over 20 years.<br />
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As for the lawyer, I hope the one thing he learns is this: You're fired.Shttp://www.blogger.com/profile/12429147325673256508noreply@blogger.com4tag:blogger.com,1999:blog-2248881149749925934.post-58172768117628759122015-07-16T22:07:00.001-07:002015-07-16T22:07:30.483-07:00We're terrible at treating mental illness in this country. We ignore it, we discourage people from talking about it, we don't pay for treating it. People bemoan the lack of mental health treatment in this country, the fact that our standard way of dealing with mental health issues is to imprison folks. In the abstract, when talking about the big picture, a lot of people seem to get it. They get that we don't treat mental illness, we criminalize it, and that this is tragic.<br />
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This is a common refrain I hear from people in all walks of life. But most of you who say this, who bemoan the lack of mental health care in this country, are full of crap. Because when push comes to shove, most people faced with a particular individual refuse to accept mental illness as an "excuse." Which is how we get to James Homes, the Aurora theater shooter, being convicted of murder instead of properly being found not guilty by reason of mental disease or defect.<br />
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The guy is nuts. He dyed his hair orange. He booby-trapped his apartment. His parents tried and tried to get him help. People at his school were alarmed by his increasingly erratic behavior. The guy's brain just isn't right. Don't tell me he premeditated, he planned, so that proves he wasn't mentally ill. You're just proving you don't understand mental illness at all if you think planning and total psychosis are mutually exclusive. They most definitely are not.<br />
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In Colorado, once a defendant meets the threshold for a defense on the basis of insanity (or mental disease or defect), the burden shifts to the prosecution to prove beyond a reasonable doubt that the defendant is not suffering from mental illness. In theory, that's quite a burden. From everything I have anecdotally seen about James Holmes, it's almost impossible to think the state could do this. Knowing what I know about death-qualified juries (they're predisposed to convict) and the way Americans refuse to accept mental illness as an "excuse" for behavior (even though that's exactly what it is), I don't trust this jury's verdict. Not for one second.<br />
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Instead, I think this verdict is proof that the reason mental illness doesn't get the treatment it deserves in this country is because deep down, most Americans don't really believe mental illness is a real thing. Most Americans think James Holmes, Andrea Yates, John Hinckley, Jr., or other psychotic people knew exactly what they were doing, knew it was wrong, and could have stopped themselves if they'd wanted to. Never mind that the illness is in the brain itself, so expecting ordered thought to overcome the disorder is kinda like expecting a color-blind person to know the thing she's seeing is red even though her brain sees it as green.<br />
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I'm losing hope that we as a nation will ever take mental illness seriously. <br />
Shttp://www.blogger.com/profile/12429147325673256508noreply@blogger.com1tag:blogger.com,1999:blog-2248881149749925934.post-78393755862522980102015-06-16T20:40:00.000-07:002015-06-16T20:40:05.582-07:00So I've been really quiet lately. I know that. I feel like a little bit I've lost my voice.<br />
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In a way, I feel like my life has turned into a Wile E Coyote cartoon. Like I've run off a cliff and the drop is coming, but it just won't quite happen. Family health issues. Financial issues. Dog issues. Work issues. The hits just keep coming and yet somehow, I haven't fallen yet.<br />
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I don't feel I'm able to keep up with everything (or anything) I want to do out of life, that I can't continue to be the truest me I can be because I'm still just churning my legs so madly, hoping the inevitable fall might miraculously not happen. <br />
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There's a huge part of me that just wants the damn fall to happen already. If I could just fall, then I could start picking up the pieces, maybe move on. But so far, I've managed to prevent the fall. I haven't come close to making it back to solid ground, but I've kept my legs churning enough that I've avoided the abyss.<br />
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It's exhausting. I just want resolution. I want to fall already. Fully, completely, irrevocably. This endless holding on needs to be done.<br />
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And I really need to get back to being me.Shttp://www.blogger.com/profile/12429147325673256508noreply@blogger.com4tag:blogger.com,1999:blog-2248881149749925934.post-88201016249227035392015-04-20T23:02:00.000-07:002015-04-20T23:02:01.776-07:00In praise of Kansas. On Felony Murder, anyway.An amazing thing happened today. I read a news story and it made my beloved state of Kansas seem better by comparison. I didn't know that could happen any more.<br />
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When it comes to felony murder, though, Kansas actually does do it better than some other states, Indiana in this specific instance.<br />
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Most people have a general sense that of what felony murder is. The simplest definition is that it's a killing in the course of an inherently dangerous crime. You break into a home and kill the surprised homeowner, you can be found guilty of felony murder. The death doesn't have to be premeditated or intentional. So if you're fleeing the crime scene in your car, police in pursuit, and you cause a car accident that kills someone: felony murder.<br />
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Felony murder as a concept was designed to ensure people who committed violent felonies that lead to someone's death wouldn't avoid punishment for murder because the state couldn't prove critical elements, like premeditation and intent. First degree murder varies a little from state to state, but that is generally the top level offense that requires both premeditation and the intent to kill. In Kansas, second degree murder simply removes that element of premeditation. A second degree murder is an intentional killing. Then there are the reckless murders, the voluntary manslaughters (think heat of passion killings), and the involuntary manslaughters. Felony murder was designed to make a prosecutor's job easier by allowing them to get a first degree, top level murder conviction, without all that pesky proof of intent to kill.<br />
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As a concept, it's not a terrible idea to say if you're going to break into a person's home with a gun and that homeowner ends up dead, we don't much care if you didn't go in intending to kill anyone. If you decide to commit a dangerous crime, especially if you bring a deadly weapon, and you kill someone, you really ought to suffer some serious consequences.<br />
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But the way felony murder works in practice, it covers non-triggerpersons. It covers getaway car drivers, even people who had no idea anyone was bringing a gun. Say you're part of a deal to buy $50 of pot and something goes sideways, leaving the buddy you went to the deal with dead, killed by the dealer. Well, selling drugs is an inherently dangerous felony, so you could find yourself grieving your friend from a jail cell as you face a felony murder charge.<br />
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Or even worse. You could be a stupid teen and decide to break into a home with 4 of your friends. You could all think the house was empty, you could all be totally unarmed. Then when the homeowner, who was home after all, confronted the intruders with a gun, killing one of them, you could be facing a felony murder charge. In Indiana, anyway.<br />
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That is what happened to <a href="http://www.usatoday.com/story/news/crime/2015/04/19/men-became-murderers-without-killing-anyone/26027173/">4 teens from Elkhart, Indiana</a>. Four young men who were teens when the break-in happened are now all serving sentences in the five-decade range when not one of them nor their dead companion were armed. The only person who had a gun was the homeowner, the only shots fired a lawful act of self-defense. We've come a long way from making sure an armed criminal who kills someone doesn't convince a jury to convict him of some lesser crime.<br />
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And this is what brings me to how Kansas does it better. While a lot of odd scenarios can lead to felony murder charges in this state (that small-time pot deal is a real case), the Elkhart case is one that could not happen in Kansas. Here (and in many other states), we have recognized one limitation on the felony murder doctrine. When the act is the result of the lawful act of a third party, there is no felony murder.<br />
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When a homeowner or other crime victim kills an assailant, that is a lawful act of self-defense. When a police officer kills the criminal (assuming it's a proper police kill), it's a lawful act of defense of self and/or others. The Kansas rule is that no criminal liability can attach for that intervening, lawful act. Kansas is not alone in limiting felony murder this way. The last time I researched this question, the no felony murder for a lawful act rule was the rule in the majority of felony murder states.<br />
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Evidently, Indiana is not in that camp. Instead, Indiana wants to incarcerate these 4 young men for decades. The oldest of these guys is now 20; the break-in happened in 2012. So we're talking about dumb guys who were 15, 16, 17 years-old when they stupidly, criminally broke into a house they thought was empty. No doubt they committed a serious crime, one that undoubtedly traumatized the homeowner. No doubt the homeowner's life has been altered forever by the events of that day, through no fault of his own. And it's no doubt a tragedy that one of these foolish young men lost his life. But I don't see how society is made better by having the other four young men lose most of their lives, either.<br />
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In Kansas, these guys would have been convicted of aggravated burglary. Depending on their criminal histories, many of them might have been eligible for probation. To me, that seems a far more appropriate outcome. Our prisons are full enough without locking away for life teenagers who didn't kill anyone. We've gotten so far away from what felony murder was originally meant to be. It's past time to rein this out of control theory of murder back in. The Indiana Supreme Court heard arguments on the Elkhart case in February. I would guess the decision should come later this year. This would be an excellent chance for Indiana to restore a little sanity to its felony murder rule. Really, Indiana, it'll be ok to be like Kansas here. Just this once.Shttp://www.blogger.com/profile/12429147325673256508noreply@blogger.com0tag:blogger.com,1999:blog-2248881149749925934.post-44665015623135436262015-02-08T23:43:00.000-08:002015-02-08T23:43:27.109-08:00Alabama's Supreme Court Chief Justice Roy Moore is on the verge of proving that those who do not learn from history are doomed to repeat it.<br />
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On a personal level, Justice Moore has already been removed from Alabama's high court once for openly defying federal court orders. He didn't want to give up his view that his god's law was supreme, even after a federal court told him to. But the ethics boards that govern judges weren't moved because they actually follow the laws of this land. And in this land, when a federal court orders a state court to do something and bases that order in the United States Constitution, the state courts have to follow that order. It's not a matter of choice, it's not open for debate. A federal court order is not a suggestion.<br />
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Evidently, Justice Moore hasn't learned that lesson because he got himself voted back to the role of Chief Justice of the Alabama Supreme Court and has now "ordered" all the probate judges throughout the state not to issue same-sex marriage licenses tomorrow, in defiance of a federal court ruling. Justice Moore doesn't think that a federal court has any authority to declare the state's same-sex marriage ban to be unconstitutional, so he is telling state judges they can't follow that ruling. He still doesn't seem to understand that the Supremacy Clause of the US Constitution exists and applies to Alabama laws such that when an Alabama law (the same-sex marriage ban) conflicts with federal law (here the Equal Protection Clause of the 14th Amendment), the federal law is supreme. Neither Roy Moore nor any other Alabama state court judge gets to ignore a federal court order. This round will not end any differently for Justice Moore than the first round did.<br />
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But there's a greater lesson from history that Justice Moore doesn't seem to have learned from, either. Alabama (and a whole bunch of other states) picked a fight with the federal government a century and a half ago. When you really think about it, what Alabama was fighting against back then boils down to the same stupid crap Justice Moore is fighting against now. I'll assume Justice Moore is one of these history revisionists who will wax poetic for hours on end about how the Civil War (or the war of northern aggression?) was all about state's rights, the nature of our federalist system, yada, yada, yada. I'd guess that he would be the type who would never, ever, ever admit that what it really came down to was slavery. No matter how anyone tries to spin it, though, slavery was absolutely the thing at the center of the fight. Alabama and its sister states of the confederacy wanted to maintain the right to own and keep slaves, to treat a class of people as something less than full citizens (or even citizens at all) deserving of all human and civil rights. You can talk about how that conflict manifested in various ways, but all roads lead back to this. Sure it was about states' rights: the states' right to allow slavery.<br />
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So here we are 150+ years ago, and this justice in Alabama once again, in open defiance of federal supremacy, is asserting Alabama's right to treat some people as less than equal, less than fully deserving of recognition, just less. Because that's really what this same-sex marriage fight boils down to. The Justice Moores of the world don't want to be told that they have to accept these families. They don't want to have to recognize couples and families that they think aren't worthy of recognition. The Justice Moores of the world are clinging to their old ways, not open to change. They definitely don't want to have to confront that they might have been wrong in those old ways. The states have the right to discriminate. (Never mind that the 14th Amendment was written in direct response to the Civil War.)<br />
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Well, Alabama was wrong about slavery and they're wrong about discriminating against gays and lesbians. Just like Justice Moore was wrong to defy federal court orders years ago as he is to "order" state judges to defy them now. Of course, it's no surprise that people want to pretend that the Civil War was about something more principled than slavery because everyone today recognizes how indefensible slavery is. I similarly hope 150 years from now, people will have as hard a time justifying this anti-gay bigotry.<br />
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I feel pretty confident in saying that the only way history will repeat here is that Justice Moore will once again get into trouble for not following the laws of the land, the laws he's sworn to uphold. I certainly don't think one lone once-removed judge is likely to spark another civil war. Instead, I'm going to hold out hope that the next wave of Alabama residents, and possible judges, will learn that defying federal courts in order to maintain a social order that oppresses unpopular minorities is a bad choice to make.Shttp://www.blogger.com/profile/12429147325673256508noreply@blogger.com0tag:blogger.com,1999:blog-2248881149749925934.post-28387733023439621422014-09-26T21:03:00.001-07:002014-09-26T21:03:16.887-07:00Konpai!My first conscious sports memory was George Brett hitting a homer off Goose Gossage in the 1980 ALCS. For 4 of the previous 5 years, the ALCS had been the Kansas City Royals against the New York Yankees. Those damn Yankees won every time. Until George Brett, the greatest 3rd baseman of all time (and, no, don't bother arguing with me on that one), stepped up to the plate that fateful October night. I was 7. I knew it was a big moment. I knew the Royals winning was big. But it was my dad's reaction that really stuck with me, because he understood. He told me, "That was a man deciding his team was going to win and making it happen. Not many players can do that."<br />
<br />
The Royals finally broke through the Yankees' chokehold that year and got to the World Series in 1980, though they never threatened to win the series that year. 5 years later, my Royals made the World Series again and they won it, as dramatically as anyone had ever won it. Prior to 1985, no team had ever come back from a 3-1 deficit in a 7-game series, but the Royals did it twice. First against the Blue Jays in the ALCS and then against the Cardinals. And the Don Denkinger out call in game 6 of the WS wasn't that big a deal, folks. It would only have been the first out of the inning. We still only needed 1 run to tie that game. And the Cardinals didn't have to fall apart so spectacularly in game 7 anyway. I've always believed 1985 was destined to be the Royals' year and it would have happened no matter what.<br />
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But then the very next year, our beloved manager was diagnosed with a brain tumor. And all hell broke lose. The team started losing. George Brett and Frank White retired. The devoted and beloved owners died. For 29 long years, the Royals were mired in misery. Losing year after losing year. 100 loss year after 100 loss year. We became the laughing stock of MLB. A punchline in "Pitch Fever." The team other team's fans don't bother to show up for. We sort of contended in 1994 until a strike ended that season. We definitely contended in 2003 until August. Then last year, we finally ended with a winning record, but still we ended on game 162. Every year, for 29 damn years, we ended on game 162, the last game of the regular season. Every other team in every professional sports league in the US has had at least one playoff appearance in those 29 years. Except for the lovably hapless Kansas City Royals.<br />
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It's been a rough 29 years to be a Royals fan.<br />
<br />
Until this year. Until tonight. Until we beat the Chicago White Sox 3-1, thus clinching a playoff spot, even if it's only in the WildCard game.<br />
<br />
In 2014, the Kansas City Royals will play a game 163. And it feels amazing.<br />
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Let's go, Royals.Shttp://www.blogger.com/profile/12429147325673256508noreply@blogger.com1tag:blogger.com,1999:blog-2248881149749925934.post-25872866763124935582014-08-20T20:42:00.001-07:002014-08-20T20:42:06.790-07:00If a cop commits a crime on video and in front of dozens of witnesses, is it still a crime?Imagine you were walking down a street with a weapon, say a scary-looking assault rifle of some type. Imagine you turned to a person walking down the street near you and said, "I will fucking kill you," while pointing said scary-looking assault rifle at said person. Now imagine it was all caught on video tape with lots and lots of cops around. Just imagine what would happen to you.<br />
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I'll tell you: you'd be arrested and charged with aggravated assault. That's one of those crimes cops won't wait to present to a DA for formal charging and an arrest warrant. Cops can actually just arrest you if they see you commit a crime.<br />
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Now let's change the hypothetical a tad: imagine the person you pointed your scary-looking assault rifle at while threatening murder was a cop. What do you think would happen to you then? Personally, I think you might be lucky to avoid seeing a few new holes in your body next time you looked in a mirror (not that you'd really be able to look in a mirror because the number of new holes in your body would be incompatible with life). At the least, you'd be surrounded, tackled to the ground, probably roughed up a bit.<br />
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But, if you're a cop, well you'd just keep going about your merry business of crowd dispersal and intimidation. Sure, one of your colleagues would pull you away from the guy you were threatening to kill. Probably that colleague would suggest you should cool your heels a bit.<br />
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It wouldn't be until the next day after the bystander who caught the incident on video uploaded it before people really noted your out-of-control, criminal conduct.<br />
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Of course, <a href="http://www.nbcnews.com/storyline/michael-brown-shooting/cop-suspended-threatening-kill-protester-ferguson-n185331">this really did happen</a> last night in, where else, Ferguson, MO. That video went viral. Thanks to that, the cop was identified. None of the witnesses could have identified him last night because cops in Ferguson are still refusing to wear badges or anything else with identifying information. He was asked his name and responded colorfully.<br />
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Now that the video has gone viral and the cop has been identified, he has at least been suspended.<br />
<br />
I could go off on a tangent now about why so many legislators are so infuriated by teacher tenure because it means experienced teachers who have proven their classroom abilities can't just be fired for any reason. Teachers are worried about being fired for things like political reasons or as punishment for speaking up for particular students. Teachers are not trying to keep jobs they're bad at; nor does tenure protect bad teachers. But still, we put an end to teacher tenure in my state.<br />
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Meanwhile, just try to fire a cop. A bad cop, a dirty cop, a rogue cop, a murdering cop. They're impossible to fire. Even when you have video of them brazenly threatening someone. They get suspended, usually with pay. They get thorough investigations, hearings with representation, the backing of the police union. Heaven forbid a cop caught on tape threatening a pedestrian should just be summarily dismissed. Can't have that!<br />
<br />
But suspending this cop isn't enough. He should be charged with a crime. Aggravated assault is, with a deadly weapon, putting someone in fear of harm. What this cop did fits the bill in my book. I would accept a plea down to criminal threat because I'd be a very reasonable prosecutor. But I wouldn't accept letting it go without criminal prosecution. Any non-cop who pulled that crap would be under arrest already. This guy should be, too.<br />
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Think of what that might do to calm tensions in St. Louis County if this cop were immediately charged with a crime. How many images have we seen in the past week of cops acting like thugs? Pointing their weapon muzzles at citizens instead of holding them in a downward position. A cop calling protesters "fucking animals." Snipers atop armored vehicles. Tear gas being thrown, journalists being arrested. And throughout it all, I've seen so much evidence of cops who don't see the people on the streets of Ferguson as the community they volunteered to protect and serve, but as underlings who are to do exactly as they are told, regardless of the rightness or lawfulness of the order. I've seen contempt, not compassion. I've seen disgust, not desire to bridge gaps.<br />
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Forcefully letting the community know that cops in St. Louis County do not have a license to threaten, do not have authority to make citizens fear for their lives would be a strong first step to improving relations between the residents of this county and their police force. Charging this cop with a crime we have video of him committing would let the people of Ferguson (and the rest of the US) know cops are accountable in a very real way for their very bad behavior. Oh, and charging him with a crime when we have video of him committing that crime would also just flat be the right thing to do.Shttp://www.blogger.com/profile/12429147325673256508noreply@blogger.com2tag:blogger.com,1999:blog-2248881149749925934.post-12807798453866089732014-08-09T11:46:00.002-07:002014-08-09T11:46:39.781-07:00No, John Hinckley Jr. must not be charged with murderIs the coroner who declared James Brady's death a homicide trying to make a political point? Was s/he subjected to pressure from any prosecutors or police? Or is this coroner just a stickler who says that because the health issues that led to Brady's death can be directly traced back to a gun shot wound he suffered 33 years ago, the death was the result of another human's actions and was thus a homicide?<br />
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I really don't know what the medical examiner's office was thinking when it labeled this death a homicide. But what I do know is that trying now to prosecute John Hinckley Jr. for murder would be a stupid, pointless waste of time and resources. It shouldn't even be considered.<br />
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I've seen it happen too often that prosecutors file charges without doing research about whether there are bars to those charges only to realize weeks or months later that the charges aren't prosecutable. No one benefits from this kind of react first, research later prosecution. It's not fair to a rape victim whose attacker has finally been identified after decades to let her think the man will be prosecuted because you didn't bother to research the statute of limitations first. Or to tell a grieving parent her son's death will be treated as a murder when the murder laws of your state don't allow that.<br />
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In articles I've seen today about this homicide finding, I've seen some rumblings that the case is being "investigated," that prosecutors are "reviewing the ruling." I hope they will actually carefully review the law and think about the case before filing anything because there should not, cannot, be a new trial.<br />
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30 years ago, a jury found John Hinckley Jr. was not guilty of charges related to the shooting by reason of insanity. That legal finding ought to be binding on the state. You can't undo that jury finding, can't ignore it, can't say it doesn't matter now. It does. It's law of the case. <a href="http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/08/08/may-the-government-try-john-hinckley-for-james-bradys-murder/?tid=collaborative_1.0_strip_1">Eugene Volokh agrees with me on this</a>, and also explains some other legal bars to prosecuting Hinckley now.<br />
<br />
So for legal reasons, no one should seriously think trying to prosecute Hinckley for murder now is a worthwhile idea. And prosecutors should think through all of these legal obstacles before they file any charges, not after.<br />
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But there's a non-legal reason for letting this go, too, even if he could be prosecuted. John Hinckley was insane when he decided shooting President Reagan was just the thing to impress a woman he didn't know. A jury had no trouble making that finding. As a result, Hinckley has lived in mental health facilities since. Yes, he's now allowed passes so he can spend time at his mother's house, around 2 weeks a month. But he's been supervised and treated for decades. For over 30 years, he has been prevented from hurting anyone again.<br />
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Preventing him from hurting anyone is precisely what the criminal justice system's goal for this case was. We have already achieved all we could hope to achieve with Hinckley. He is still within a court's jurisdiction. He is still required to accept supervision and treatment for his mental illness. If his mental health deteriorates, there are already procedures in place to restrict the freedoms he has earned. Nothing more would be gained by trying now to put him in prison (where, by the way, it's almost guaranteed his mental illness would not be nearly as well treated).<br />
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The Hinckley case was a watershed moment in the criminal justice system. The outrage that a man who was insane at the time of his crime was found to be insane at the time of his crime was enormous (even if utterly unjustified). There was a false but very strong sense that he "got away with it" by being housed all these years in a mental institution instead of a prison. As a direct result of this case, states across the country altered their laws on mental illness as a defense to crimes. These new laws made it much harder for defendants to rely on mental illness as a defense at trial. The intent of these changes was to make sure the Hinckleys of the world would go to prison, not some "cushy" mental hospital because there was somehow something unjust about treating a person with profound mental illness as a person with profound mental illness.<br />
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Trying to prosecute him now would demonstrate that we've learned nothing about how wrong those knee-jerk reactions to his original verdict were. Our prisons are overrun with mentally ill inmates because we've criminalized mental illness. People like John Hinckley Jr. should be in mental hospitals, not prisons. As a society, we're better off when we treat mental illness and show compassion to those who suffer from it instead of throwing them away in prison as people too damaged to bother with.<br />
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The justice system's treatment of John Hinckley Jr. has been exactly what it should have been. There is nothing to correct, no reason to pursue new responses to his 33 year-old crimes. There is no reason to reopen that case. Here's hoping the powers that be know that.Shttp://www.blogger.com/profile/12429147325673256508noreply@blogger.com0tag:blogger.com,1999:blog-2248881149749925934.post-79182008264081333522014-07-31T07:12:00.000-07:002014-07-31T07:12:04.951-07:00Forensic sciences in the criminal justice system: still a complete messRemember 5 years ago, when the <a href="http://rantsofapublicdefender.blogspot.com/2009/02/national-academy-of-sciences-has-now.html">National Academy of Sciences published a comprehensive report</a> about the state of forensic crime labs and their impact on the criminal justice system?<br />
<br />
Among the systemic failures noted by the NAS (and others, notably defense attorneys):<br />
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<br />
<ul>
<li>that crime labs are too inextricably linked with the prosecution and investigators, thus infusing bias into the testing process</li>
<li>that no national standards existed for many testing disciplines</li>
<li>that results are overstated in court</li>
<li>that junk science is passed off as conclusive evidence</li>
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Well, this might surprise you, but nothing much has changed. Why? Well, I'd suggest it's because the institutions that are currently in charge of the crime labs and the types of testing done don't want things to change. Because admitting things need to change is tantamount to admitting past mistakes. And we know prosecutors, the FBI, and pretty much everyone else involved in prosecuting people don't much care to admit past mistakes.<br />
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Now we learn that<br />
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<blockquote class="tr_bq">
<span style="font-family: inherit;"><span style="color: #333333; font-size: 18px; line-height: 32.400001525878906px;">Nearly every criminal case reviewed by the FBI and the Justice Department as part of a </span><a href="http://www.washingtonpost.com/local/crime/justice-dept-fbi-to-review-use-of-forensic-evidence-in-thousands-of-cases/2012/07/10/gJQAT6DlbW_story.html" style="border-bottom-color: rgb(212, 212, 212); border-bottom-style: solid; border-bottom-width: 1px; color: #2e6d9d; font-size: 18px; line-height: 32.400001525878906px; text-decoration: none; zoom: 1;">massive investigation</a><span style="color: #333333; font-size: 18px; line-height: 32.400001525878906px;"> started in 2012 of problems at the FBI lab has included flawed forensic testimony from the agency, government officials said. <a href="http://www.washingtonpost.com/local/crime/federal-review-stalled-after-finding-forensic-errors-by-fbi-lab-unit-spanned-two-decades/2014/07/29/04ede880-11ee-11e4-9285-4243a40ddc97_story.html">Washington Post</a></span></span></blockquote>
And the FBI's initial response was to stop the review. A see no evil kind of response, perhaps? If we stop digging, we'll stop seeing all the bad things we've done in the name not of science but of convicting people.<br />
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Some of the stuff that was reviewed for that 2012 investigation, and that still needs to be reviewed, includes "hair matching" which I put in quotes because it's such bunk. Tip if you're ever on a jury: if a lab analyst gets on the stand at your trial and starts talking about "hair matching," know said lab analyst is full of it. Unless a hair left at a crime scene has a follicle from which DNA can be extracted, there's no way for a person to use any scientific method to claim to match that hair to the hair of a particular person.<br />
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At yet, the FBI did it all the time. The first questions about the conduct of some FBI examiners were raised in 1997. And yet, we still don't have a thorough review of all the cases those examiners touched. People are on death row. People have been executed. But still, to this day, the FBI is dragging its feet about honestly assessing the scope of the problem. With that, I will presume, they're not being as insistent and urgent about making changes as I would like to see. (As I would hope anyone interested in justice and good science would like to see.)<br />
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No one benefits when the FBI, or its state and local counterparts, play fast and loose with science in the name of nailing the perp. That kind of mentality leads to wrong results. The evidence, when properly and neutrally examined, should lead investigators to suspects. Too often, though, crime labs that have any connection to, and thus a vested interest in, the investigation look at the evidence with the hope of using it to convict the pre-determined suspect. When crime labs and investigators work for the same team, investigators can get a little too tempted to tell the lab analysts what result they need to see. All forensic sciences are capable of having the results cajoled, massaged, overstated, or just flat manipulated. Yes, even DNA isn't exempt from this because there is always a human element of interpretation to any test result. This is a large part of what the FBI uncovered when it was conducting this review, finding that analysts in court were grossly overstating results, indicating far more confidence in matches than science called for. Heck, in many situations, declaring a match at all isn't supported by the science. But when your colleague is really sure this suspect is the guy and there are no protocols telling you you can't declare a match...<br />
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This is why national standards matter and were recommended 5 years ago. So we can't have an overzealous fingerprint analyst in Oklahoma be willing to declare a match based on 3 points of similarity instead of 8 or 9. So we can do away with scientists with all their sciencey credentials coming into court and telling jurors they did "microscopic hair analysis" and the crime scene hair matched the defendant's hair.<br />
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This is why the NAS recommended crime labs be made independent of police and prosecutors offices 5 years ago. So that crime lab analysts wouldn't be part of the prosecution team, but would be free to analyze the evidence free of that bias. Scientists left to their own science devices and purposes would never have come up with that microscopic hair analysis nonsense. Instead, it was thought up by FBI employees who were part of the team trying to catch the bad guys.<br />
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It is disheartening to see the FBI is still dragging its feet about acknowledging problems with bad evidence, overstated testimony from its analysts, and the bias that comes from working for the agency that's charged with arresting the bad guys. It is horrifying to realize how many people have been executed or incarcerated for decades based on this type of evidence.<br />
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There has been far too much delay already. We desperately need to clean up our approach to forensic sciences in the criminal justice system. One more day of delay is inexcusable.<br />
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Shttp://www.blogger.com/profile/12429147325673256508noreply@blogger.com0tag:blogger.com,1999:blog-2248881149749925934.post-79472735959641005092014-07-29T21:04:00.001-07:002014-07-29T21:04:13.277-07:00Sometimes defending can be funOh my, I so would love to be the lawyer who gets to present this defense to a court:<br />
<br />
<blockquote class="tr_bq">
<span style="background-color: white; color: #333333; font-family: georgia, 'times new roman', times, serif; line-height: 23px;">Former Gov. </span><a class="meta-per" href="http://topics.nytimes.com/top/reference/timestopics/people/m/robert_f_mcdonnell/index.html?inline=nyt-per" style="background-color: white; color: #326891; font-family: georgia, 'times new roman', times, serif; line-height: 23px;" title="More articles about Robert F. McDonnell.">Bob McDonnell</a><span style="background-color: white; color: #333333; font-family: georgia, 'times new roman', times, serif; line-height: 23px;"> of Virginia and his wife, Maureen, on trial for conspiring to use his office for personal enrichment, outlined an unexpected defense on Tuesday: Their marriage was so broken that they did not communicate enough to conspire about anything. <a href="http://nytimes.com/">NYTimes.com</a></span></blockquote>
It really doesn't get better than a fun, novel, delightfully devilish, slightly snarky argument.<br />
<br />
Too often, we're stuck with nothing. We're stuck with the cigarette butts at the crime scene with my guy's DNA were planted there by the real culprit. Or the scratches all over the defendant's neck that just happen to match what the victim said she did to the perp really came from climbing through bushes to find that sad, stray kitten. Or I just happened to be in the bathroom when the real perp came in, killed the victim, and then left without a trace after which I then went and tried to revive the victim, thus explaining why my bloody footprints and fingerprints and DNA are all over the crime scene.<br />
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In short, we often don't have a whole lot to work with.<br />
<br />
But this, yeah I could work with this.<br />
<br />
Q: Now Mr. and Mrs. McDonnell couldn't stand each other, could they?<br />
A: No.<br />
Q: They never voluntarily stayed in the same room together?<br />
A: Never.<br />
Q: Mr. McDonnell called his wife "The noose around my neck?"<br />
A: More than once.<br />
Q: And Mrs. McDonnell joked about spiking his food with cyanide?<br />
A: Daily.<br />
Q: So the prospect of the two of them working jointly on a plan to use his office to enrich themselves?<br />
A: Slim to none. And slim just left town.<br />
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It would be fun to ask these kinds of questions of all the witnesses. Just how much did these two hate each other? How acrimonious was the relationship? And how did it manifest? Affairs? Broken dishes? Cold, dead silence?<br />
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There could be a lot of shared smiles with the jurors, maybe a few titters. It's stressful as hell to have someone's life in your hands. Being able to bring a little levity to the courtroom helps. And having an argument you can really sink your teeth into is the dream.<br />
<br />
So enjoy, McDonnell defense attorneys. I know I would.Shttp://www.blogger.com/profile/12429147325673256508noreply@blogger.com0tag:blogger.com,1999:blog-2248881149749925934.post-7743906276553552392014-07-23T18:51:00.000-07:002014-07-23T18:57:53.023-07:00AngryTonight, I am angry.<br />
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Legitimately, thoroughly, heart-breakingly angry.<br />
<br />
I am angry for my colleagues in Arizona. For days, weeks, months, the intrepid defenders representing Joseph Wood, who was executed today, have been fighting to get information about the lethal injection process. They, like any good defenders, wanted to know what the procedure would look like, what drugs would be used, where the drugs came from, what kind of training the people administering the drugs had. They argued to court after court that we couldn't assess whether executing Joseph Wood would violate the Eighth Amendment prohibition on cruel and unusual punishment without that information. Not only were they shot down by every court, they were vilified by the public, criticized in online comments sections, accused of filing frivolous motions, grasping at straws, doing whatever they could to eek a little more money out of the taxpayers. And in the end, they had to watch someone they cared about (because it is possible to care about people even after they've done horrible, terrible, heinous things) suffer through a prolonged death. (In a way that proved they were right all along to want the information they had sought, but small comfort that is to them tonight.)<br />
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I am angry for the portion of the American populace that wants no part of the death penalty. We think it's ugly, dirty, beneath the dignity of this great nation. We think intentional killing is wrong no matter who does it or why. Tonight, we feel guilty, we feel sorrow, we even feel dirty because we haven't been able to stop things like what happened to Joseph Wood in Arizona tonight. Our failure to win the day on abolition of the death penalty makes us complicit in your murder and that makes me angry.<br />
<br />
I am angry for the reporters who had to watch Joseph Wood's prolonged death, that included him gasping and struggling for breath for nearly two hours. I am angry for the prison guards and other staff who were charged with trying in vain to do this thing they had no business doing. These are people trying to do their work, trying to be honest and lawful and genuine. And yet, they will now be forced to remember forever the sounds of Joseph Wood gasping for breath, the sights of him struggling as his execution went against plan. Actual people are tasked with carrying out the acts that will end human lives and with documenting those acts for the public. Those people pay a price and I am angry on their behalf.<br />
<br />
I am angry for all of the men and women on death row throughout the nation who have to live in purgatory on earth, wondering if that could be the fate that awaits them next week, next year, or 10 years from now. No matter what you've been or done, no one should have to live with that kind of mental torture. We none of us think what their victims endured was ok because human beings shouldn't treat each other with such carelessness, such disdain. True adherence to that ideal means we shouldn't be ok with treating any human beings that way, no matter how much some humans might "deserve" it on some cosmic score card of pain.<br />
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I am angry as hell at the people who insist on keeping the death penalty alive in this country. It should be a relic, something we discarded along with lynchings, Jim Crow laws, denial of women's suffrage, and any number of other things civilized, enlightened societies are better without. I am furious that they insist some people waive their rights to live, deserve whatever manner of torture we can think of, etc., without recognizing the cost the rest of us pay when harmless, defenseless people are intentionally killed. We will be a better society when those people are finally defeated. I am angry that they keep us from being our best selves.<br />
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I am angry for Joseph Wood. He suffered a terrible, painful death. He gasped for breath, snorted, struggled for almost 2 hours. He will never now be able to tell us what it felt like. And while, yes, his victims also undoubtedly suffered in ways we will never be able to imagine, that doesn't make it wrong for me to condemn his suffering on top. We are supposed to be better than common criminals. If I could speak to Joseph Wood, I would tell him how righteously angry I am on behalf of his victims. That anger towards his actions does not in any way limit my ability to look Joseph Wood's torturers in the eyes and express the same righteous anger about Wood's subsequent suffering. Any time a human being suffers at the hands of another human, anger is justified.<br />
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There is no good way to kill a human being. Death is ugly. When left to run its own natural course, death can also be beautiful, transcendent even. But the ugliness is always there. When it comes as the result of the intentional act of human hands, there's no hiding the ugly. The ugly will always reveal itself. There is no method human beings can devise of intentionally killing each other that won't eventually reveal the ugly underbelly. Firing squad, hanging, drawing and quartering, lethal injection, electrocution, even Madame La Guilllotine herself. Every single method has been botched. Every single method has resulted in human suffering. Every single method is beneath us.<br />
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There is no good way to kill a human being. So for the love of all that is good, stop freaking trying.<br />
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There will never be a good way to kill a human being.Shttp://www.blogger.com/profile/12429147325673256508noreply@blogger.com1tag:blogger.com,1999:blog-2248881149749925934.post-20073801008614584412014-07-16T22:06:00.001-07:002014-07-16T22:06:37.152-07:00Listen to the smart judge, CaliforniaI've long known that California, of all states, had by far the most dysfunctional death penalty system. At last count, they had 748 defendants on death row. In total, over 900 individuals have been sentenced to death since California reinstated the death penalty in the post Furman-era of the mid-70s. Yet since 1976, only 13 people have been executed. If you take the total amount the state has spent on death penalty cases since 1976 and divide it by those 13 executions, it's a staggering number (as in several hundred million dollars). Since 2006, there haven't been any executions and there's no reason to think there will be one any time soon because the state has no execution protocols in place. Meanwhile, new death sentences are being imposed every year, so the death row population is ever-increasing.<br />
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I knew that the average length of time defendants spent on California's death row dwarfed the national average, that death row inmates in Cali were more likely to die from natural causes than execution, etc. I knew that one of the main problems was a lack of resources. Not enough lawyers, to start, because there's not enough money to fully-staff public defender offices and way not enough money to entice private attorneys to take on these cases. Then, of course, there's no money for the additional resources a defense attorney needs to handle post-conviction procedures correctly, like to hire investigators and experts, track down witnesses, etc. I knew that the death penalty in California was a pointless exercise in futility.<br />
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But even with all that knowledge, I was still not quite prepared for the depth and breadth of the dysfunction in California as it was laid bare today in a federal district court opinion finding the California death penalty system to be unconstitutional. The defendant, Ernest D. Jones, through his lawyers at the Habeas Corpus Resource Center (HCRC) argued that the systemic dysfunction and delay that permeates every level of post-conviction review in California rendered his death sentence arbitrary in violation of the Eighth Amendment. Arbitrariness is a key word in death penalty case law; it's the thing we've been striving to pretend doesn't exist in our death penalty schemes. In this context, the arbitrariness argued by the defense and agreed to by the federal court was in how few death sentences will actually be carried out and that there's just no telling which few inmates it will be carried out on. There's really no rhyme or reason to why those 13 guys were the ones who were executed. No will there be any sensible distinction between the say 5-10 guys now on death row who are executed and the other 740 who will avoid that fate.<br />
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Because of the ridiculous delays and the sheer randomness of which cases finally make it through the system, this federal district court judge found California's death penalty unconstitutional. It's what people in the know have been saying for years. It's beyond refreshing to see a judge own it.<br />
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The thing that most floored me as I read this decision was how long it really takes to get attorneys appointed on direct appeal. In a normal state where the process is working as it should, the appointment of appellate counsel* should happen at roughly the same time as the pronouncement of sentence. A defendant is formally sentenced, the trial attorney files the notice of appeal (often on that day, but definitely within about 10 business days), and appellate counsel is appointed. It's not at all uncommon for all of that to be done on the day of sentencing. It's pretty easy to write a name on a form and then send a copy of that form on to appellate counsel. Then appellate counsel gets the appeal rolling, filing the necessary documents at the appellate court, requesting transcripts, etc.<br />
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But in California, it's not that simple. In California, as I learned in today's decision, it takes 3-5 years for appellate counsel to be appointed. 3-5 years. That is 3-5 years that a person newly convicted of murder and sentenced to death must wait around in prison without an attorney, without anyone to ask about the process, without anyone on his side. Maybe to some of you, that doesn't inspire a whole lot of sympathy. But to me, being in prison and facing a death sentence without one single person to turn to for guidance is unimaginable. One thing I wonder about is whether the transcripts are being prepared in those intervening years or whether that process waits until there is an attorney appointed? It's bad enough that defendants have to wait 3-5 years before an attorney begins working on the case, but it would be even worse if "working" on the case involves all that preliminary, time-consuming stuff like compiling the record and ordering transcripts.<br />
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California's death penalty quagmire doesn't get better after the direct appeal, either. There are lengthy delays in the appointment of the attorneys who handle state and federal habeas review. This is the part of the process that frustrates the crap out of kill-happy politicians and a public who doesn't understand why there are so many appeals. But it's an essential part of the process. Generally, it's only in habeas proceedings that defendants can raise issues related to the performance of trial counsel. Since effective assistance of counsel is a constitutionally-guaranteed right, it's kind of a big deal to make sure that right wasn't denied. And yet, in California, again, we're talking an average of years before habeas counsel is appointed.<br />
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The delays inherent in California's death penalty system aren't because defendants are pulling tricks and being difficult. It isn't because attorneys are filing frivolous motions and meritless appeals. It's because for literally years, there is no one doing anything on these cases. There is, in fact, no one to do anything on these cases.<br />
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That the California system has been irretrievably broken for years is not news. Back in 2008, a commission offered numerous suggestions for clearing up the quagmire. But in 2014, nothing has changed. The courts are more backlogged than ever.<br />
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Really, this judge just had the courage to say what so many people have been thinking for years. California, your death penalty is a joke. No, worse. It's a disaster. You've hopelessly, irrevocably mucked it up. It cannot be fixed. You will never execute the defendants you have already sentenced to death; you will definitely not get to any new death sentences. You're throwing bad money after good into this thing and getting absolutely nothing out of it. So stop. Just stop. Take this decision as your opportunity to once and for all get out of the death penalty business while you still have some dignity.<br />
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The only way for California to fix its death penalty is to abandon it.<br />
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<span style="font-size: x-small;">*It really needs to be different counsel for a couple of reasons. Trial work and appellate work are very different beasts, for starters. But you also want fresh eyes on the case and counsel who will be free to identify if prior counsel made mistakes.</span>Shttp://www.blogger.com/profile/12429147325673256508noreply@blogger.com4tag:blogger.com,1999:blog-2248881149749925934.post-45682001060546820862014-06-17T22:11:00.002-07:002014-06-17T22:11:46.543-07:00And we'll never be judgesI don't want to be a legislator or a political appointee heading some bureaucracy. I don't want to be a city or county commissioner or a school board member. I don't even want to be a judge.<br />
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But it really chaps my hide to know (not think, not guess, but know) that even if I wanted to pursue any of those jobs, the job I've dedicated myself to thus far would disqualify me. Once a public defender, never an anything else in public life.<br />
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We, the public defender community, have long known that we were not going to be able to stay in this role if we someday want to be judges. Fortunately for me, I'm an advocate through and through, so that was never a problem for me. But I have colleagues who would have loved to be judges, and who would have been marvelous judges, who get overlooked at every opportunity. Part of that is the networking angle. We're not attending the right meetings (because we can't afford it and our offices can't afford to cover us), we're not meeting the right people, becoming known in the right circles. Of course, prosecutors get to be judges, but public defenders don't.<br />
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It's more than just the financial aspect, though, because even those who do much private criminal defense work don't get to the bench.<br />
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It really shouldn't come as a surprise, then, to learn that being a public defender is a bar to all kinds of other jobs. We saw earlier this year how representing a particularly disliked death row defendant, no matter how tangentially and no matter how meritorious the issue, <a href="http://rantsofapublicdefender.blogspot.com/2014/03/i-didnt-know-defending-cop-killer-was.html">disqualified an attorney from joining the Justice Department.</a> And now <a href="http://m.arktimes.com/arkansas/blogs/Post?basename=right-to-counsel-no-protection-for-politically-minded-lawyers&day=17&id=ArkansasBlog&month=06&year=2014">we see that the ratio of former prosecutors and judges to former public defenders in Congress isn't a fair fight</a>, either. The key comparison: right now, the House has 32 former prosecutors; since 2000, only 5 former public defenders. I'd be curious to see the resumes of those former PDs, too, because I'd guess they had work between being public defenders and running for office. Prosecutors can run for office; public defenders have to have transition jobs before they can run.<br />
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The <a href="http://www.washingtonpost.com/blogs/the-fix/wp/2014/06/17/why-being-a-public-defender-is-increasingly-bad-for-your-political-future/">Washington Post story</a> has examples of attack ads that have run against those defenders who do try to run for public office. Defend one accused murderer or child rapist and that'll be the first thing your opponent points out about you. I know exactly which case of mine would be the first mentioned in the attack ad against me if I ever tried to run for office. I think I can guess which would be second. After that, though, there's a whole slew of stuff to choose from. They'd need to buy a full half hour ad to properly rake me across the coals for all the bad guys I've tried to help.<br />
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What is this about? Why is public defender work so disrespected? Except it goes beyond disrespect. Public defender work is downright despised. I can't even work up a whole lot of anger about it, anymore. The public defender hate just leaves me feeling so defeated.<br />
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We're good people. We're good lawyers. We're not idiots who just couldn't get better jobs. We actually do this work because we believe in it. It's work you should believe in, too, if you like the Bill of Rights. It doesn't just stop at the Second Amendment, you know. There are, in fact, 4 Amendments that focus on the rights of those suspected of and charged with crimes. One of them even guarantees every criminal defendant the right to the assistance of counsel. So you could even say we're true patriots, doing a job specifically outlined in the Constitution. You're welcome, by the way, for all that security in your person and effects against unlawful searches.<br />
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But instead of getting thanks, we get crapped on. We're laughed at, derisively called "public pretenders." (Yeah, that's really original and we've never, ever heard it before.) We're confronted at parties with outraged queries of how on earth we can sleep at night. We're vilified on comment forums. We're the red-headed step-children of state agencies, being asked to do more and more work with half the resources of other state lawyers (I'm looking at you, prosecutors). Then when we still manage to do good things with those limited resources, we're just more hated. And to top it all off, we're not allowed to have any role in public policy discussions because there's always someone there to point out that the work we do is somehow "incompatible with justice."<br />
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It's a sin and a shame that the perspectives that we have aren't valued, that our experiences aren't represented in state houses or Congress, that we aren't desired contributors to policy discussions. We would actually have something worthwhile to contribute, if you'd all stop insulting us and hating us long enough to listen.<br />
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But you won't and I'm too tired to fight. So, go on. Keep hating and disrespecting me, my colleagues, and the work that we do. Just know, though, that if any of you anti-public defender folks ever get arrested for DUI or accused of rape or murder, one of us will be there to stand beside you in court, no matter what sort of mud and disrespect you've flung at us. We don't pick and choose who is worthy of a defense. We stand on the principle that everyone has Constitutional rights that should be respected. Even you jerks who wouldn't vote for one of us because of our principles. We're just that damn principled.<br />
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<br />Shttp://www.blogger.com/profile/12429147325673256508noreply@blogger.com4tag:blogger.com,1999:blog-2248881149749925934.post-7174717525865593062014-06-10T19:46:00.001-07:002014-06-10T19:46:24.821-07:00Gitmo: The elephant in the Bergdahl roomThe President struck a deal to get an American soldier held by the Taliban in Afghanistan back and the world went crazy. By the world, I really mean tv pundits and Republicans who knee-jerk oppose anything and everything this President does. People who just weeks ago were criticizing him for not getting Bowe Bergdahl back were all of a sudden incensed that he struck a deal with the Taliban to do just that. (And don't even get me started on Andrew Napolitano's ridiculous "he could be charge with giving aid to terrorists for releasing these guys" nonsense.) It's been fascinating to watch from a political standpoint.<br />
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But there's a really important legal, criminal defense even, point that must be emphasized. What we should learn from the Bergdahl incident is this: Gitmo is now and has always been a terrible, horrible, no good, very bad idea and we have got to end it. We are running out of time to find a graceful way to end it and denial about the need to end it isn't helping.<br />
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For centuries, the world has recognized certain rules about how to handle captured enemy soldiers during war. Countries were allowed to keep those soldiers, rather than release them so they could wind up back on a battlefield killing again, but within accepted parameters. And when the war was over, everybody sent the captured soldiers back home. The more amorphous war on terror, where we weren't really fighting a defined foreign power made things a tad more complicated. We weren't at war with Afghanistan itself, just the nasty elements that were allowed to grow in the more lawless regions of that country.<br />
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When the prison/detention camp thingy in Cuba was first created, it was a creative extension of normal international prisoner of war standards. We called the Taliban and Al Qaeda fighters we captured "enemy combatants" so we could detain them under international prisoner of war standards rather than trying to put them all through criminal court. It was definitely uncharted territory, which made it so tricky.<br />
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But that was over a decade ago. At some point, we had to know we couldn't just hold these guys for the rest of their lives. Some who had provable ties to actual terrorist acts, like Khalid Sheikh Muhammad, we could try in criminal court, where presumably they will be convicted and we can then hold them forever. Because due process and international law both allow people convicted of murder in criminal court to be incarcerated for life. Combatants captured on a battlefield, not so much. We were never going to be able to make criminal charges stick against most of them, the vast majority of them, even. At some point, we were always going to have to start sending them home, even the really bad, high-ranking Taliban guys. It doesn't matter how much they hate us or how much harm they might hope to do to us. The French and the British didn't stop hating each other the moment a war ended, but they still sent each other's men home. Even if that meant they'd face off in battle again some day. We just don't get to keep them forever.<br />
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So since we have to accept that reality that eventually we will have to close Gitmo and release most of its inmates, we might as well get something for them when we can.<br />
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In the wake of the Bergdahl swap, it would be nice if we could have a serious discussion, then, about what we are going to do with all the rest of them. When and how will we release them (there is no "whether"), to which nations, and with what, if any, conditions. It would be lovely if we could calmly and rationally face this reality head on, if we could think about what other things we might negotiate about as we release more detainees. Instead of speciously whining that we made America less safe on behalf of the son of a man who looks too Muslim.Shttp://www.blogger.com/profile/12429147325673256508noreply@blogger.com1tag:blogger.com,1999:blog-2248881149749925934.post-91905822732249658292014-06-03T19:01:00.001-07:002014-06-03T19:01:40.161-07:00Q: When is a 12-year-old an adult? A: NEVER!Way back in my law school days, I interned at a public defender office in Wisconsin, working on juvenile cases. I saw a wide range of cases, from Pokémon card theft to vandalism to battery. There was arson and some plain old runaway stuff. I saw a case involving a teen girl subjected to a search of her bra that wasn't too different from a US Supreme Court case. I saw kids from all different kinds of families, different socioeconomic backgrounds. And I saw kids of all kinds of ages, as young as 8, as old as 17.<br />
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Know what I didn't see? I didn't see one single juvenile I might have mistaken for an adult. Didn't matter what they were charged with or how old they were. They were universally just scared kids. (And I knew from scared kids as I was a 26 year-old broke law student.) The 14 and 15-year-olds I saw would have gotten crushed in the adult criminal system. <br />
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So I come with that perspective when I say I cannot fathom what on earth the prosecutors in Waukesha County are thinking by charging two 12 year-old girls as adults. It boggles the mind.<br />
As I've ranted before, <a href="http://rantsofapublicdefender.blogspot.com/2012/06/teenagers-really-arent-adults-really.html">Teenagers really aren't adults</a>, so we shouldn't treat them as if they are when it comes to crime and punishment. But these girls aren't even there yet. They're still looking ahead to their teenage years! Go to any 7th grade classroom anywhere and try to find me even one kid who you would feel comfortable putting in adult court. I'm telling you now, that kid does not exist.<br />
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I can't believe I have to write this. I don't want to have to keep beating this very sad drum. But there is no justification for charging and trying a 12 year-old child as an adult. None. Doesn't matter what the crime is, what the child's IQ is, or what the child says about why it happened. All 12 year-old kids are kids and need to be treated as such.<br />
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Please, prosecutors of the nation, stop making me have to rant about this. Just stop doing it. We have a juvenile justice system for a reason. It's to deal with the 12-year-olds who commit crimes, yes even very serious crimes. Trust it. It actually can work if you let it.Shttp://www.blogger.com/profile/12429147325673256508noreply@blogger.com3tag:blogger.com,1999:blog-2248881149749925934.post-90421149159581341042014-06-03T16:11:00.002-07:002014-06-03T16:11:52.321-07:00Did you hear the one about the judge beating up the defense attorney?I don't know what's going on in Brevard County Court. I don't know if their courts are hopelessly back logged with defendants waiting for court dates. I don't know if the prosecutor's office there is charging too many cases, refusing to negotiate deals, if the public defender's office is stretched too thin due to understaffing, or some combination of all of the above. But there is clearly something happening, leading to some simmering tension.<br />
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That tension boiled over yesterday when Judge John Murphy asked assistant public defender Andrew Weinstock what he wanted to do with a case and the PD doggedly said more than once that he wasn't waiving. The conversation was about whether Weinstock's client would get a speedy trial. It sure seems the judge was determined to get a waiver of that constitutional right. The judge was certainly annoyed at the PD's refusal to cooperate. It can be very inconvenient for courts when defense attorneys actually insist on protecting their clients' rights. The judge told the PD he was pissing him off, told the PD to sit down. The PD said he had a right to be there and to stand up for his client.<br />
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What happened at first isn't all that odd. It's the kind of exchange that most judges and PDs will have at some point. "Please waive your client's constitutional speedy trial right because my docket is a mess and I don't know how we'll fit it in," says the Judge. "Not our problem," replies the PD.<br />
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It's what happened next that sets this one apart. The Judge said he would throw a rock at the PD if he had one. Then he suggests the two should go outside. And the PD does. The video doesn't follow the pair into the hallway, but an altercation can be heard, some thumps, and I thought I heard some profanity. <a href="http://www.cbsnews.com/news/florida-judge-accused-of-hitting-lawyer-outside-courtroom/">This article</a> includes the video.<br />
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The PD says as soon as they got into the hallway, the judge started punching him. No discussion, no attempts to work out their personal differences, just punching. After a minute or so, the judge comes back into the courtroom (to some applause, yikes) and takes a minute to gather his breath. Doesn't seem like the PD returned fire at all. For all the bravado he exhibited leaving the courtroom at the judge's invitation, he surely knew a lawyer punching a judge is a career-ending move sure to land that lawyer in jail for at least a night.<br />
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Now, I can get plenty ranty about what this judge did to the PD. The PD was absolutely wrong to leave the courtroom as he did, though, of course, one rarely exhibits the best judgment in the heat of the moment. Ideally, the PD would have stuck to his guns on the waiver issue and then asked for recusal after the threat of physical violence. But the judge is totally at fault here. You don't get to punch people! You definitely don't get to punch defense lawyers for having the gall to defend their clients' rights!<br />
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This judge should be removed from the bench. I'd be ok with him not facing criminal charges if he suffers that consequence. He does not belong on the bench, with people's lives at stake, if that's how he handles conflict, especially when the conflict is purely because a defense lawyer refuses to bend to his will. What defense attorney would feel comfortable appearing before this judge now? I wouldn't. Even if he wouldn't hit me, the real physical intimidation that occurred in this case with this attorney will linger in his courtroom. So far, the only statement has been that this judge will not sit on any of this attorney's cases, but I don't think that begins to address the problem. This may have been the only attorney to have suffered actual physical injury at this judge's hand, but it won't be the only attorney affected.<br />
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But there's much, much more to this than has been covered in any of the articles I've read about the incident. The judge went on to do something else that should get him removed and that sheds more light on what his real motivations were. <br />
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The entire time this incident was occurring, the poor defendant stood quietly and respectfully at the podium. He was still there when the judge, and the judge alone, returned to the courtroom. He stood there quietly as the judge composed himself and regained his breath. And then, the judge addressed him.<br />
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The judge asked the defendant what he wanted to do. Not about sticking with that attorney or being reassigned, not about sticking around to see if another PD could show up to continue the scheduling hearing. Nope, he asked the defendant a substantive question about setting a trial date. Did the defendant want a trial date or did he want to waive his speedy trial right? That's right, the judge went back to a defendant who was represented by counsel but whose counsel was not in the courtroom because said counsel had just been beaten up by the judge and asked the defendant to waive the very constitutional right his counsel just got beat up for refusing to waive! Of everything that happened, that to me is the most outrageous. The judge couldn't get that damned public defender to cave, but maybe not that he's out of the way, the defendant will.<br />
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A judge doesn't get to interact that way with a defendant who is represented by counsel. He certainly doesn't get to create a conflict with the attorney so the attorney can't come back in the courtroom and then treat the defendant as an unrepresented defendant. What is a defendant supposed to think at that moment? If I don't waive my right, what will this judge do to me? A defendant shouldn't have to worry that he will suffer consequences for invoking a constitutional right.<br />
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Fortunately, this defendant stood firm and refused to waive his right. Had he waived it, that should have been a slam-dunk win for the defense because no way would that waiver have been valid. But none of that takes away from how unacceptable it was that the judge asked the question in the first place. He had no business conducting any business with that defendant while he stood in court without his appointed attorney. I wonder if any other defense attorneys (or prosecutors, for that matter) were in the courtroom when the judge addressed the defendant. I would hope one would have stood up and suggested no hearing should proceed in that fashion. But what lawyer would want to challenge that judge after what had just happened?<br />
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What this judge did is despicable and it is behavior that has no place on any bench in any courtroom.<br />
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<br />Shttp://www.blogger.com/profile/12429147325673256508noreply@blogger.com7tag:blogger.com,1999:blog-2248881149749925934.post-43215967294856907902014-05-30T20:25:00.003-07:002014-05-30T20:25:55.827-07:00Public defenders don't get to pick our clients. We don't get to pick what kind of cases we get. I take whatever client and whatever conviction comes through my door. I believe that's the only principled way for me to do my job. The presumption of innocence applies to all defendants, no matter how obnoxious or unpleasant. And the constitutional guarantees of due process, etc., apply to all charges. I wouldn't be honoring what I say I believe in if I would turn a client or a type of case away.*<br />
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This doesn't mean, though, that you don't sometimes read the details of a case that fell to someone else and think, "I'm glad that one didn't land on my desk." <br />
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<span style="font-size: x-small;">*unless, of course, a personal conflict develops, in which case the client is better off if I pass the case off to someone else. But I do all I can to avoid those conflicts from developing.</span>Shttp://www.blogger.com/profile/12429147325673256508noreply@blogger.com0tag:blogger.com,1999:blog-2248881149749925934.post-42890356446324430752014-05-28T00:55:00.001-07:002014-05-28T00:55:24.873-07:00#Yesallwomen includes this womanEvery time we have a mass shooting/murder incident, there is the inevitable discussion about what will we do, with some insisting the real issue is gun control and only control, others it's all mental health care. People will often deflect or even ignore the part of the discussion about the topic they don't want to address, insisting this one topic is a distraction from the real issue and those who would talk about it are therefore part of the problem.<br />
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A funny thing happened after this most recent shooting in Santa Barbara, then. Besides the usual gun control and mental health discussions, a third topic made its way to the forefront: misogyny and violence against women. Based on the alleged shooter's video rants and written manifesto in which he refers to women as mentally ill, wicked, the source of all evil in the world, and the predominant source of his misery, it seems a fair topic to bring in. So someone started a hashtag movement on twitter, #Yesallwomen. Women started sharing tweets that for many of us hit very, very close to home. Things like "because we teach girls not to get raped instead of teaching boys not to rape," "because we hold our keys in our hands like a weapon when we walk alone at night," "because if a guy buys my daughter a meal, it does not mean he gets to sleep with her."<br />
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Of course, predictably, a backlash then started, with hashtags like #notallmen, as if tweeters sharing these experiences hate all men, think they're all equally responsible for all the bad things a few men do. And that it was a distraction to the real issue, was someone co-opting this tragedy for political gain, etc. It's easier to react defensively, to knee-jerk reject a topic out of hand, than to listen and be thoughtful.<br />
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Maybe this hashtag trend has not a whole lot to do with this one mass shooting, but that doesn't make the comments being made any less valid. It doesn't mean the conversation women are trying to get started isn't an important one that men should hear, whether it's entirely comfortable or not. Because the cold, hard truth is I don't know one woman who doesn't have in mind what her offering to #Yesall women would be.<br />
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Since the #Yesallwomen trend began, I've had lots of tweets in my head, things I would contribute.<br />
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But I haven't and I'm not entirely sure why. Nothing I would post on twitter is anything I would be ashamed of or wouldn't defend. I say it's largely because my twitter feed is dedicated to sports and it's somehow not socially acceptable to foray too far into other topics. But that's never stopped me from tweeting about the death penalty or other controversial topics. Maybe it's just because I have too much to say, too many stories that can't be contained in 140 characters, and couldn't settle on just one or two.<br />
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Because there are so very, very many reasons to post to #Yesallwomen.<br />
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Because we equate female genitalia with weakness and male genitalia with strength.<br />
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Because a powerful woman must have a pair of brass ones.<br />
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Because a baseball player with a bad arm throws like a girl.<br />
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Because when a guy who kept trying to go out with me and wouldn't take no or silence for an answer finally drove me to send him an aggressive email telling him to leave me alone, the response was that I needed to up my meds.<br />
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Because when I didn't respond to another guy on his time table and explained I had been busy at my regular Thursday martini night with my besties, he responded that the image of a bunch of "sexy ladies" at martini night intrigued him and that he was sure we would eat him alive. Because, obviously, my friends and I regularly get together for cheap drinks to provide random men with fantasy material and we are all maneaters.<br />
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Because as this hashtag is trending all over social media, a male friend who I thought of as pretty aware and a feminist liked a stupid Internet post about how much men love see-through yoga pants, complete with pictures and obnoxious captions. And because what I want to do is share that post with a comment about how yes, even this kind of thing, is what the hashtag is all about, but I'm afraid it will come across as scolding this friend. (even though he probably deserves it.)<br />
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Because just this spring, there was a huge discussion amongst legal bloggers about what women should wear in court.<br />
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Because I have driven past my own house when I thought a car might be following me. And because when I told this to a male friend, he was totally stunned. It had never occurred to him to worry he was being followed.<br />
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Because people say that boys are easier to raise than girls, that teenage girls are a nightmare, that girls are horrible, to each other, to their mothers, etc.<br />
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Because even some women say things like "women are awful to each other," perpetuating the idea that women are catty, gossipy, unworthy of friendship. <br />
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Because people still think boys should be taught "don't hit girls" instead of just "don't hit."<br />
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Because no one asks men if they're going to go back to work after the arrival of a child. No one asks men if they're going to stop working after the wedding. No one asks men if they're going to change their names after the wedding. And if a man decides not to take his wife's name after the wedding, no one is going to passively-aggressively insist on addressing letters, invitations, etc. to him using his wife's last name anyway.<br />
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And because if you comment on any of these piddly little things, if you point to any of these specific incidents or comments as a minor piece of evidence about a much larger issue, you're told to lighten up, have a sense of humor, or not be so sensitive.<br />
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These are just the things I came up with off the top of my head in the space of 10 minutes. I haven't even touched on the birth control and abortion debates (which so often boil down to women needing to keep their legs closed, pay for their own promiscuity, and suffer the consequences of her slutty, slutty actions while the responsibility of men is ignored). Or the school dress codes that tell girls not to be distractions to boys. Or the studies that show that lots of today's 11-14 yo boys still somehow have the idea that girls should put out if boys spend money on them.<br />
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And I still have more. So many more.<br /><br />
Because medical research is still disproportionately geared toward men, leaving women more vulnerable.<br />
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Because women are still more likely to die from heart attack related incidents in hospitals because women's symptoms are still overlooked, downplayed, and thus treatment is delayed.<br />
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Because some people still persist in thinking of rape as somehow a "worse" crime than murder. This ones even worse because it's tied to a false claim of focusing on a woman's agency and bodily autonomy. But it's not. Both crimes deny a person agency and bodily autonomy. Duh. One denies it permanently and irrevocably for all time. Being raped sucks, no doubt. But no woman or man should think a woman might have been better off to have been murdered rather than raped. No woman's sexual purity or autonomy is more important, more valuable than her life. It sickens me that I even have to say that. <br />
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Because prison rape jokes are made constantly. Some even actively wish prison rape on particular defendants. All sexual violence is unacceptable.<br />
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Because the word that means "believing men and women are equal and deserving of equal rights" is considered a dirty word and something many women refuse to be associated with. <br />
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Because the fact that I am single, especially at my age, is somehow "my fault" and everyone feels free to offer an opinion on just what I'm doing wrong and how I should change to fix it.<br />
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Sure, women in this country today have far more opportunities than the woman of my grandmother's generation, or even my mother's. While my grandmother had to forgo college because the family's money had to be saved for her four younger brothers' educations, my mother and her daughters knew from early on a college education was non-negotiable. Women are all over higher education now. There are fewer and fewer work barriers, as well. The ranks of women in my profession are nothing like what my grandmother might have expected. Last I checked, more women are now graduating from law school than men. (Though it's not all rosy in the workforce. Women are underrepresented in the ranks of corporate CEOs and there's still that pesky pay issue, for example.)<br />
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Equal access to education and the workforce are the big things that are frankly easier to address. You can pass a law about discriminating against women in the workplace. Equal access to education can be the topic of a lawsuit. But you can't write a law to stop certain men from feeling entitled to grope the first women they find on dance floors. You can't sue men who think "make me a sandwich" jokes are funny or who feel threatened by women who earn more money than they do. So that "little" stuff is what lingers, long after the law technically recognizes equality.<br />
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That's what #Yesallwomen is about. This piddly little crap, all the hundreds (thousands?) of insidious little ways women are still somehow a little less than men. Even if some men and women don't want to acknowledge these things are true or a problem, it's been downright cathartic to write them out and stop pretending this crap doesn't get to me. <br />
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So there. Think my rants are all just the ramblings of a hormonal bitch (ooh, because while men's hormones also cycle regularly, you never hear anyone write off a man's comments with a derisive reference to his time of the month) if you want. Think I'm overblowing little things that don't matter. Each of the above is something I have personally encountered, heard, dealt with, and been negatively affected by. Feels pretty good to air all those grievances for once.<br />
<br />Shttp://www.blogger.com/profile/12429147325673256508noreply@blogger.com1tag:blogger.com,1999:blog-2248881149749925934.post-41482277212918727852014-05-27T18:23:00.001-07:002014-05-27T18:23:23.356-07:00Umm... I have a pithy saying hanging on the wall of my office. It's something along the lines of, "Sometimes you have to admit there's no authority for your position because no judge has ever been that stupid before." Only it's phrased a tad more, umm, colorfully.<br />
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It's true, though. Every once in a while, an appellate attorney finds herself desperately looking for an actual case law cite for some legal proposition that is so obvious, it has never needed to be stated before. It's like the legal equivalent of having to find a reference to cite for the fact that the sky is blue or up is up. There aren't any cases to cite for some basic propositions because no one has ever thought it was any other way and thus there's never been a need for an appellate court to spell it out.<br />
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For example, I would never have thought anyone would question that if a trial were held,a jury selected and sworn in, and then the prosecution just declined to participate in any way, as in they put on no evidence, the only option would be for the district court to enter a directed verdict of not guilty and the state would not be allowed to appeal it. Seems pretty obvious, like one of the lowest level proofs 9th graders learn on the first day of geometry. The state has the burden of proof. Putting on no evidence at all does not meet that burden of proof. Only choice is an acquittal. Acquittals are not appealable. Simpler than simple. A + B = C.<br />
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But I guess it's not that simple to everyone, thus once again proving that my wall quote is sadly true. Because as of today, there is now written authority from the United States Supreme Court on this point, made necessary by the Illinois Supreme Court's total bungling of this simple issue.<br />
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First, let me explain one type of "decision" SCOTUS issues. It's called a "GVR." Grant, vacate, and remand. To get SCOTUS to consider your case, you have to file a petition for certiorari. The vast majority of those are denied. About 70-80 are granted each year. Those are the cases the court hears argument on and issues long written opinions on. It's quite common, though, that for each cert petition that is granted and argued, there are several others involving the same issue. Those petitions won't always be denied, but can be held. Then when the main opinion is issued, the court will "GVR" the other petitions, with instructions that the lower court should reconsider the issue in light of that newly-announced decision. Those cases will show up on the generic weekly order list, with only a short paragraph heralding that the petitioner has technically just "won" her case at the Supreme Court.<br />
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Today's order list had a more unusual "order" on it in the form of a short "<a href="http://www.supremecourt.gov/opinions/13pdf/13-5967_7m5e.pdf">Per Curiam</a>" decision. A per curiam decision is one that isn't attributed to one particular justice as an author. In some cases, it might mean no one justice wants to take the heat, but more often (and in this case) it means they're all just really in agreement and it's not worth their time to worry about who will get the credit. In this case, the written decision/order was necessary because what the Illinois court did couldn't go uncorrected, but not worth SCOTUS' time as a full grant-with-argument because, duh, there was just no question about what the result had to be. It all leads to the oddest little thing I've ever seen from SCOTUS.<br />
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Now, maybe this is the kind of thing that's really only interesting to a total legal nerd like myself. But it sure made me giggle this afternoon.<br />
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In short, here's what happened. The state had trouble finding its two critical witnesses. So they got a trial continuance. And another one. And I think at least one more. It was a little unclear how much work they were really putting in to tracking these two down. Finally, about 4 years after the incident leading to the charges, the state ran out of patience from the trial court and got no more continuances. The state participated in jury selection and sat back as a jury was sworn in. Now, for constitutional double jeopardy purposes, the most basic tenet of law is that jeopardy attaches when a jury is sworn. It has been that way for far longer than I've been practicing law. The state declined to dismiss the charges without prejudice, which would have allowed it to refile the charges at a later date. They instead insisted that only another continuance would suffice, but the trial court was pretty much done waiting for these witnesses to be found and the state did have other witnesses on its witness list, after all.<br />
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The state informed the judge that it would not be participating in the trial. The judge replied, "We'll see how that works." The judge then, in front of the now-sworn jury, asked the state if it had an opening statement. The prosecutor said, "Respectfully, the state is not participating in this case." Ok, then. So the judge invited the state to call its first witness. "Respectfully, your honor, the state is not participating in this case."<br />
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Any law student who'd taken two days of criminal procedure should know what to do if representing the defendant at that point. "Your honor, the defense moves for a directed verdict of not guilty. Respectfully, of course." And any person who'd taken zero days of law school should know the only choice the judge would have at that point would be to grant that motion, declare the defendant not guilty, and end the case. Which is exactly what the district court judge here did.<br />
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The state appealed. Odd as most lay persons know the state can't appeal an acquittal. But odder still, the Illinois Supreme Court found the acquittal to be inappropriate because jeopardy had never attached because the defendant never faced the "threat" of conviction. Can't be convicted if the state doesn't even try... An inexplicable ruling. Indefensible. Totally wrong because the clear authority has long, long been that jeopardy attaches when a jury is sworn. Period. Moreover, from a practical standpoint, this ruling would have been a disaster. It would have allowed any prosecutor anywhere in Illinois to unilaterally force a continuance by just refusing to participate when the trial court wouldn't agree to said continuance. No matter how much any court wants a particular defendant not to get off, that should be an unacceptable possibility. It would be chaos. So the US Supreme Court rightly issued a short, sweet little decision saying, "Duh, no." They said it a lot more kindly than I would have were I Justice Per Curiam. (A colleague and I were wondering who actually did write it. She theorized Scalia, but I said there's no way Scalia would have been that gentle.)<br />
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I'm not sure how many prosecutors the nation over would have thought to try this. I can't imagine how many appellate courts nation-wide would have given prosecutors the green light to pull such a stunt. What the Illinois Supreme Court did was really pretty stupid. At least now, if another court anywhere in the country decides to be that stupid, there will be authority for the poor defense attorney dealing with said stupidity to cite. Because in the end, it seems, there is always one court who will eventually be that stupid. <br />
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<br />Shttp://www.blogger.com/profile/12429147325673256508noreply@blogger.com0tag:blogger.com,1999:blog-2248881149749925934.post-22109780337590335632014-05-05T18:17:00.001-07:002014-05-05T18:17:07.837-07:00Good newsSometimes, people do the right thing and it's a beautiful sight. Remember <a href="http://rantsofapublicdefender.blogspot.com/2014/04/let-mike-anderson-go.html">Mike Anderson</a>? The guy who never went to prison after his robbery conviction, but spent those 13 years building a business, a good family, and generally living a good, worthwhile life? They let him go. The state of Missouri, of all states, did a good thing and <a href="http://www.cbsnews.com/news/man-who-went-to-prison-13-years-late-ordered-released/">let him go</a>. Who knew Missouri even knew good things existed? (I kid, I kid. Sort of. No self-respecting Kansan won't take pot-shots at Missouri every chance she gets. Doesn't actually mean we think every single person who lives in Missouri is evil. My friend Ali is pretty cool.)<br />
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Anyway, it's nice to see a judge take a rational approach to sentencing. It's good to see the Missouri Attorney General's office seems to agree with the result. We shouldn't send people to prison just for the sake of it. I knew when I first read about this case that all my fellow defenders would agree sending a guy to prison at this late date after he's built such a successful life for himself would be a ludicrous waste of resources. I'm glad to see the non-defenders see it that way, too.<br />
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Enjoy your family, Mike Anderson. <br />
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<br />Shttp://www.blogger.com/profile/12429147325673256508noreply@blogger.com0tag:blogger.com,1999:blog-2248881149749925934.post-16834106597613382272014-05-03T16:10:00.001-07:002014-05-03T16:10:46.575-07:00Yep, I'm still ranting about Shaken Baby Syndrome (because it's not a real thing)I've ranted about the problems with the should-have-already-been-abandoned nonsense called Shaken Baby Syndrome <a href="http://rantsofapublicdefender.blogspot.com/2012/09/shaken-baby-syndrome-fake-diagnosis-we.html">before</a>. And <a href="http://rantsofapublicdefender.blogspot.com/2012/04/there-are-sometimes-waves-of-similar.html">before</a> that. And <a href="http://rantsofapublicdefender.blogspot.com/2011/06/rethinking-shaken-baby-syndrome.html">before</a> that. So perhaps you could accuse me of harping on it (though I don't think that's a fair characterization of 4 blog posts over 3 years). But it's important to keep educating the public about it because the public includes prosecutors and judges and defenders and prospective jurors. The more we all know about the bad science that has permeated these prosecutions so we can get correct results in every case.<br />
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In short, the idea behind SBS is that there exists a triad of injuries (subdural hemorrhage, retinal hemorrhage, and encephalopathy) that can only occur after some kind of abusive trauma (like shaking) and that onset of symptoms can be used to identify the perpetrator. <br />
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Here's a story about <a href="http://www.slate.com/articles/news_and_politics/jurisprudence/2014/05/shaken_baby_syndrome_in_the_courts_a_judge_finally_calls_the_diagnosis_an.html">yet another person accused of shaking a baby to death</a> based on the flawed theories behind the SBS diagnosis. Because make no mistake about it, the SBS claim is bunk. Fortunately, the flaw in Jennifer Del Petre's conviction has finally been recognized (though, unfortunately, not until she'd spent 10 years in prison). The noteworthy and encouraging point in this case is the skepticism the judge behind Jennifer Del Petre's release expressed about not just this case but the SBS diagnosis in general. Finally. We're finally getting through to courts. We may also be getting through to prosecutors as there are innocence review projects in numerous big jurisdictions and at least one SBS case was dismissed by prosecutors rather than being retried.<br />
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May we all continue to express more and more skepticism about the idea that a person's guilt can be established merely because a triad of symptoms were identified in an infant and that person was the last one around the infant. If you hear a prosecutor or doctor say that, you should question those assumptions. If you're a juror, you should be unwilling to convict if that's the state's case. And don't be fooled by experts or prosecutors who don't refer to SBS but instead call it Abusive Head Trauma. It's still the same turd of a theory, just dressed up differently.<br />
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The triad of injuries can result from so many different causes: serious trauma, accidental bumps or falls, organic diseases. And the triad can take minutes, hours, even days to appear.<br />
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It's important to identify child abusers. That should go without saying. But it's equally important not to mislabel innocent parents or childcare providers as abusers because we can't get past the flawed thinking behind SBS (and its replacement diagnosis, Abusive Head Trauma). So expect me to keep harping on (I mean blogging about) this topic from time to time until we eradicate the SBS diagnosis entirely.<br />
<br />Shttp://www.blogger.com/profile/12429147325673256508noreply@blogger.com0