Monday, April 2, 2018

This won't help make it stop

Many 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."

Those magic words almost always work to get a prosecutor to say the case is unchargeable, as in the case of Alton Sterling. 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 Walter Scott. 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.

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 Kisela v. Hughes. 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.

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.

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.

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.

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.

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.

Tuesday, March 27, 2018

This has to stop

It just keeps happening. Faster than we can learn the names.

Stephon Clark. Murdered in his own back yard in Sacramento. Holding a super threatening cell phone.

Danny Ray Thomas. 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.

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.

As we learned today, the officers who murdered Alton Sterling 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.

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.

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.

Tuesday, August 29, 2017

In which I defend an alleged wife-killer named Peterson

I'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.

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.

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.

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?

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.

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.

Thursday, August 20, 2015

In which I am feeling utterly and totally defeated because of a man I will never meet

It is because of cases like this 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.

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.

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.

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.

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.

As I wrote before, that Jerry Hartfield's constitutional right to a speedy trial has been violated is not something any rational person can deny. But, sadly, as I also wrote before, 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.

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.

I am so disheartened by this result, I have no more words.

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.

Monday, July 27, 2015

In which Donald Trump's lawyer doesn't know the law

We 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.

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.

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.

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.”

I'll give you a minute to facepalm. Let me know when you're ready to resume reading.

You're ready now? No, yeah, he really said that. Need a little more facepalm time? I get it.

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.

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.

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.

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.

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.

As for the lawyer, I hope the one thing he learns is this: You're fired.

Thursday, July 16, 2015

We'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.

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.

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.

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.

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.

I'm losing hope that we as a nation will ever take mental illness seriously.

Tuesday, June 16, 2015

So I've been really quiet lately. I know that. I feel like a little bit I've lost my voice.

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.

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.

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.

It's exhausting. I just want resolution. I want to fall already. Fully, completely, irrevocably. This endless holding on needs to be done.

And I really need to get back to being me.
Blog Designed by : NW Designs